Disclosure of Surveillance - 2

Disclosure of Surveillance - 2

Aherne v. Chang, 2011 ONSC 3846

This is an appeal from Master Short’s recent decision on the issue of ‘when is privilege waived?’.

The defendants argued that if they provided surveillance material to an IME doctor, the privilege was not waived until the doctor released the report. The plaintiff argued that the privilege was waived as soon as the surveillance was given to the IME doctor. The defendant seems to want to avoid having the plaintiff’s lawyer review the surveillance before the plaintiff goes to the IME to make sure that the plaintiff doesn’t embellish during the IME.

It seems that the defendant in this case could have avoided this entire problem if they simply held onto the surveillance materials and let the IME doctor assess the plaintiff and prepare the report. Then, after the report is released, the defendant can provide the IME doctor with the surveillance, and ask the IME doctor if the surveillance changes his/her opinion.

Thanks to M. Edward Key for bringing this appeal to our attention and for the comments.
Your homeowners policy probably does NOT cover flooding

Your homeowners policy probably does NOT cover flooding

Many residents of Minot, North Dakota believed they were safe from flooding due to a revised flood map and either canceled their flood insurance or failed to purchase a policy. Today, only one in ten residents have flood insurance.

A New York Times article today chronicles how the number of people in Minot with flood insurance was cut in half in just a year.

Most people know this, but your standard homeowners policy doesn't cover flooding. If you want coverage, you must buy a policy from the National Flood Insurance Program.

Get a flood map or learn more about flood insurance.
Unidentified Motorist - Corroborating Evidence

Unidentified Motorist - Corroborating Evidence

In our post of July 27, 2010, we blogged about the case of Pepe v. State Farm Mutual Automobile Insurance Co., [2010] O.J. No. 2138 (S.C.J.) and whether a passenger in an insured’s motor vehicle was an “independent witness” who can corroborate the insured’s evidence concerning the involvement of an unidentified motorist for the purposes of the OPCF 44R Family Protection Endorsement. The motions judge held that the passenger could corroborate the insured’s claim for the purpose of OPCF 44R coverage, despite the fact that she was the insured's girlfriend and was also suing State Farm for damages caused by an unidentified driver.

The Court of Appeal has upheld the motions judge's decision.

Doherty J.A. reviewed the history of requiring corroboration and cited Chief Justice Dickson, in Vetrovec v. The Queen, [1982] 1 S.C.R. 811 at 826, for identifying the rationale for a corroboration requirement:

"The reason for requiring corroboration is that we believe the witness has good reason to lie. We therefore want some other piece of evidence which tends to convince us that he is telling the truth."

Doherty J.A. held that State Farm’s assertion that it is the witness who must be independent, in the sense of neutral to the outcome, was wrong. The independence requirement in the context of corroboration has always referred to the independence of the evidence and not to the neutrality of the witness. The witness’s neutrality or lack thereof is relevant to the ultimate credibility of the witness’s evidence, which is for the trial judge to assess.
Job opening: Chief market conduct examiner

Job opening: Chief market conduct examiner

Due to a retirement, we have a job opening for a chief market conduct examiner in our Seattle office.

The person will supervise the market conduct team of examiners, who work directly with insurance companies to determine compliance with consumer protection laws and regulations.

For more details, salary info, and more about the agency, travel requirements, etc., please see the full job listing.

If you want to stay up to date on any future openings at the Insurance Commissioner's Office, here's our job opportunities page.
Insurance companies and agents fined more than $750,000 this year in WA

Insurance companies and agents fined more than $750,000 this year in WA

Washington State Insurance Commissioner Mike Kreidler has fined insurance companies, agents and brokers more than $750,000 this year. Violations included charging unapproved rates and submitting false documents.
“These fines are the `teeth’ that help us protect insurance consumers,” said Kreidler. “It’s our job to see that the insurance industry’s playing by the rules.”

From January through mid-June, the insurance commissioner’s office has imposed $787,815 in fines. The largest, by far, was a $534,000 fine issued in January. More recent fines are listed below.

The money does not go to the agency. It is deposited in the state’s general fund to pay for other state services.

Any Washingtonian with a complaint against an insurer, agent or broker can contact the office at 1-800-562-6900 or file a complaint online at http://www.insurance.wa.gov/.

For a list of companies fined recently, read the press release here.
Life Line for New York SIGs Falling Short While National Attention on Funds Sharpens

Life Line for New York SIGs Falling Short While National Attention on Funds Sharpens

It appears my recent story “A New Life Line for Group Workers’ Comp Funds in New York” was overly optimistic and the obituary for SIGs in that state may indeed be published in the not too distant future.

According to knowledgeable sources, preliminary discussions about finding a reasonable compromise to allow well run New York SIGs to continue to operate have not panned out. At issue has been the posting of security to satisfy regulator concerns about solvency going forward.

The state’s workers’ compensation board pushed back against formulas proposed by industry that would allow funds sufficient access to cash to pay claims and other operating expenses. As a result, a new law has been passed requiring funds to post security equal to 160% of expected claims. With such a high bar, it is likely that the baby will be thrown out with the bath water.

There is some uncertainty, however, as the regulations to implement the new law has yet to be written and industry continues to press its case to the Governor and the Legislature that this law will have significant negative ramifications for the state’s workers’ compensation system. So stay tuned as there may additional twists to this story in months ahead.

But while New York has been the epicenter of actual legislative/regulatory activity affecting SIGs, it’s worth noting that the New York experience has spurred discussions in national forums.

Just last month at the National Council of Self-Insurers (NCSI) Annual Meeting, representatives from the California Self-Insurers Security Fund presented a session on SIGs. Although some good objective data was provided, there was an obvious bias evidenced by the fact that they were quick to point out the isolated problems within the SIG industry without acknowledging that the overwhelming number of SIGs are well run and provide smaller employers an important risk financing option.

It should not be surprising that the presentation concluded with comments suggesting that national standards for SIG regulation should be considered.

This discussion promises to pick up again next month Southeastern Association of Workers’ Compensation Administrators (SAWCA) Annual Meeting as one of the featured sessions will discuss “warning signs for a SIG default.” This meeting typically attracts a large number of regulators so the meeting room is likely to be filled with those who may be inclined to make it more difficult for SIGs to operate.

While a serious regulatory push with national reach may not be right around the corner, those who have an interest in maintaining sensible SIG regulation should nonetheless pay attention to the discussions that are going on because developments can accelerate with little warning.

Not only do you have regulators encouraging each other to conform to group think about how to deal with SIGs, but the traditional insurance industry never misses an opportunity to stir the pot by trying to make funds look bad. The confluence of these dynamics should keep SIG industry stakeholders on their toes.

So we’ll watch to see how things continue to play out in New York while keeping an eye on other states who may not be able to resist on messing with a good thing.
Disclosure of Surveillance

Disclosure of Surveillance

If surveillance is provided to an independent medical assessor, does it have to be produced to the plaintiff, even if the assessor does not rely on it in forming his or her opinion?

In Aherne v. Chang, [2011] O.J. No. 1880 (S.C.J.), the plaintiff sued for injuries alleged to have been caused as a result of medical treatment provided by the defendant. On the defendant's examination for discovery, his counsel confirmed that there had been no surveillance undertaken but refused to answer questions pertaining to disclosure of any future surveillance that might be undertaken after the discoveries. Counsel for the defendant took the position that privilege over documents released to a medical examiner, is waived only if the document is relied upon by the medical examiner, and not at the time that the document is released to the medical examiner. The plaintiff sought to obtain copies of any surveillance that was released by the defendant to a physician or healthcare practitioner retained for purposes of a defence medical assessment.

Master Short held that from the moment of his retainer to conduct a Rule 33 examination, a defence medical examiner owes his or her primary duty to the court. It is inappropriate and unseemly for the court to prevent any party before it from having contemporary access to the information provided to that expert.

Master Short summarized the following principles emerging from the rules and previous jurisprudence:

(a) if information is sent to an expert, then the same information should be sent to the opposing party to allow that party to test the expert’s opinion;
(b) an opposing party is entitled to the facts on which the expert’s opinion is based;
(c) so long as an expert read a document sent to him or her, then that document was considered, such that it is a “finding” that must be produced;
(d) the privilege claimed over a document sent to an expert is waived at the time that it was decided to rely on that expert’s opinion or in circumstances where privilege is waived over the report, even if the waiver was inadvertent;
(e) by sending a defence medical assessor portions of surveillance, privilege over the full surveillance video or all photographs is waived.

Master Short held that privilege is lost at the point the material is sent to an expert retained for the purpose of a Rule 33 examination. It was therefore held that the defendant is obliged to provide a copy of any surveillance of the plaintiff concurrently with its release to any defence medical examiner.
Pierce County man charged in insurance fraud case

Pierce County man charged in insurance fraud case

A Tacoma man faces multiple charges after allegedly filing forged documents in an auto theft claim.

Cash B. Knott, 45, has been charged in Pierce County Superior Court with three counts of forgery, one count of insurance fraud, and one count of attempted 2nd degree theft.

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.

The upshot: The investigators believe that Knott altered the invoice, forged a check, and created a phony bank statement.

He's scheduled for arraignment on June 27th.

New free iPhone app guides you through steps after a car accident

AAA has released a new iPhone app that will walk you through the steps to take after an auto accident, including a list of information to gather for police and your insurers, photos to take, and a diagram of vehicle damage.

You don't have to be a AAA member. The app is free, and AAA says it's working on a version for other smartphones.

No smartphone? Here's a comprehensive auto accident checklist, put together by the National Association of Insurance Commissioners, that you should print out and keep in your car.

Here are the steps we recommend:
  • Stay safe, but try to warn oncoming traffic of the danger at the scene. Turn on your hazard lights.
  • If someone's hurt, give reasonable aid and call 911 immediately. Don't move them unless absolutely necessary.
  • Notify the police.
  • Give and get info for the accident report, including insurance information, license plates, names and contact information of those involved, including police and witnesses. Diagram the scene.
  • If you can do it safely, take photos with a camera or phone.
  • Call your agent or insurance company.
  • Many experts advise not admitting fault or assigning blame, and only discussing the details of the accident with police or your insurer.
Obsessed With Adverse Selection

Obsessed With Adverse Selection

In case you haven’t heard, self-insurance is the gateway to adverse selection in the health insurance marketplace. Federal and state regulators have been sending up warning flares on this subject, but not surprisingly, their aim misses the mark.

This discussion has heated up as policy-makers look ahead to 2014 when state insurance exchanges are slated to come on-line and they try to predict market conditions and that time. For PPACA supporters, there’s a lot riding on making sure the exchanges work as promised so they are taking aim at any real or perceived obstacles. Adverse selection drivers are at the top of the list.

We saw this first in the HHS Report on the Large Group Market, which was published in March. In the report HHS commented that if low attachment point policies in the reinsurance (read stop-loss) market become more widely available by 2014, a significant number of fully-insured employers with “low risk” employees will switch to self-insurance, therefore creating adverse selection in the marketplace.

This section of the report concludes that “these results highlight the importance of closely monitoring the availability and pricing of reinsurance (stop-loss insurance) and closely monitoring decisions made by small employers to self-insure.”

A working draft of a recent NAIC white paper on the subject of adverse selection also points the finger at self-insurance as contributing to adverse selection. The NAIC writes: “Employers with favorable risk demographics have an incentive to self-fund while those with less desirable risks would tend to opt for fully-insured plans either through the exchange or in the outside market.”

Neither HHS nor the NAIC acknowledges one very important fact as part of their analysis, which is that most companies with fewer than 100 employees simply do not know if their group is a good risk because claims data is generally not available to them. In this regard, their “premeditation” argument is compromised.

Now it’s true that employers that switch to self-insurance can often improve the aggregate risk profile of their groups over time, regardless of the baseline at the time of transition, through wellness programs and other innovative plan design strategies, but shouldn’t that be the objective of all group health plans?

Let’s also recognize the importance of the HHS comment about “closely monitoring” the stop-loss market as way to guard against adverse selection. As described in my previous blog posting, Treasury Department Gets Schooled on stop-Loss Insurance, federal regulators now have a keen interest in stop-loss insurance for a variety of reasons.

This new federal attention combined with the ongoing desire by state legislators to expand their authority over self-insured health plans creates a very uncertain environment for future legislative/regulatory activity that could affect the ability of small and even mid-sized companies to self-insure.

There’s one last development on this subject worth mentioning. Some key House Republican staffers have indicated a renewed interest in introducing association health plan (AHP) legislation, but are holding back because of anticipated criticism that self-insured AHPs would contribute to adverse selection. So the education process continues on multiple fronts.

Things that can affect your auto insurance rates

A new survey says that more than half of Americans have recently made an economic-driven change that may affect how much they pay for car insurance.

The National Association of Insurance Commissioners survey found that:
  • nearly 40 percent of respondents were driving less or taking public transportation more
  • nearly 20 percent traded in a vehicle for a lower-priced model or got rid of a second vehicle entirely
  • and almost 20 percent of drivers reduced or canceled their car insurance to save money -- something we do not recommend. You'll almost certainly pay more to get coverage later, and if you continue to drive without coverage, you expose yourself to potentially devastating financial liability.
(Bonus round: Here's a long list of NAIC tips for lowering your auto insurance premiums.)

Here are some of the changes that can affect how much you pay for insurance:
  • You moved: A change in zip code may affect your premium, depending on crime statistics in the area.
  • You changed cars: A lower-value car, not surprisingly, is usually cheaper to insure. If you're car's paid off and not worth much, you might consider saving money by raising your deductible or canceling your collision coverage. But keep your liability coverage.
  • A new job, or no job: These can affect whether you commute, and how far.
  • Driving less: Almost 40 percent of consumers said they're driving less. Many are walking or taking public transportation more often. If this sounds like you, you should talk to your insurer and see if you qualify for a low-mileage discount.
  • Bad credit score: The weak economy, layoffs and the collapse of the housing market have left many people with battered credit. Most states, including Washington, allow insurers to use your credit information to decide how much to charge you. (Here in Washington, we have successfully fought to limit this practice, but have not yet been able to convince lawmakers to ban it entirely.)
Also, if you're struggling to find coverage here in Washington, we maintain an online list of companies offering policies for hard-to-insure drivers.
Insurance investigators shot and killed in Louisiana

Insurance investigators shot and killed in Louisiana

Our hearts go out to our colleagues in Louisiana, where yesterday two Louisiana Department of Insurance fraud investigators were shot and killed while trying to gather information from an insurance agent.

Here's the statement from Louisiana Insurance Commissioner Jim Donelon.

According to the New York Times, the agent was found dead by SWAT team members after barricading himself in his business, where the shootings happened.
Thanks to Barb Legate for this comment on our post on McNeill v. Filthaut, regarding the current debate over the testimony of accident benefits assessors:

"A point that seems to be missed in some of these analyses is that notwithstanding the provisions of Rules 4 and 53, those rules are merely a codification of the law that stated with Amertek. Rules 4 and 53 are part of the Mohan criteria, and fall under the "any exclusionary rule" branch. So, although there are exclusionary rules for experts a party retains, that does not end the analysis. If a witness is to give opinion evidence, the witness has to be qualified as an expert. Part of the qualification exercise is to enquire into bias. Bias also enters into the relevance assessment. See CA decision in Abbey.

IMHO, those cases that strain to differentiate treating opinions from AB opinions from DAC opinions and retained expert opinions have missed the basic law: you want to call a witness to give an opinion, then follow Mohan. No fancy differentiations needed."
Special Circumstances Doctrine

Special Circumstances Doctrine

This is a case which comments on the Special Circumstances doctrine which we have been reviewing recently in our last two blog entries. This case was brought to our attention by Dana Paladino, legal counsel at the City of Windsor. Thanks Dana!

Wood Waste Solutions Canada Inc. v. Associated Paving Company, 2010 ONSC 6280 (CanLII). The court indicates that the special circumstances doctrine is potentially available where an old limitation period applies.

It is surprising that this wouldn’t have been mentioned in Chadowski.

One accident, two claims: Seattle man charged with insurance fraud

One accident, two claims: Seattle man charged with insurance fraud

A Seattle man has been charged with insurance fraud and second-degree theft for allegedly filing multiple auto insurance claims for a single accident.

Thanh Thai "Derrick" Dang, 31, was charged Wednesday in King County Superior Court. Both charges are class C felonies, carrying a maximum penalty of 5 years in prison and a $10,000 fine.

An investigation by the state insurance commmissioner's Special Investigations Unit found that in May 2010, Dang contacted insurer Ameriprise to say that his Toyota RAV4 had been hit by a hit-and-run driver while parked outside a home in Seattle. Ameriprise issued a check for $3,887.

Eight days after the accident, Dang obtained coverage over the internet from Allstate. Almost immediately, he filed a claim with Allstate for damage to the RAV4, saying that the car had been rear-ended while he was driving on Interstate 5. He also claimed that he'd been injured. Allstate issued a check for $3,502 for repairs to the vehicle.

A subsequent investigation by Allstate's anti-fraud unit showed that the RAV4 damage was identical in both claims.

A hearing in Dang's case is scheduled for June 13th.

Update (9/20/2011): King County Superior Court Judge Susan Craighead ordered Dang to pay restitution to both Allstate and Ameriprise, plus $600 to the court. He was also sentenced to 200 hours of community service.

This is further to our May 25th blog of last week on the Special Circumstances Doctrine.

Thanks to Edward Key of O'Donnell, Roberston & Sanfilippo, Toronto, for this comment:

My understanding is that “special circumstances” is still alive for causes of action that pre-date January 1, 2004.

For example, in Parent v. Janandee Management Inc. (2009) 82 C.P.C. (6th) 321 (Ont. Master), Master Short wrote:

[29] For cases dealing with events occurring after January 1, 2004, the Ontario

Court of Appeal has held in Joseph v. Paramount Canada's Wonderland (2008),

90 O.R. (3d) 401 (Ont. C.A.) (at paragraphs 27 and 28) that the equitable concept

of special circumstances permitting an extension of time for suit, no longer

applies in Ontario. As this case is based upon an occurrence that took place prior

to January 1, 2004, the Court of Appeal's decision in Meady v. Greyhound

Canada Transportation Corp., 2008 ONCA 468 (Ont. C.A.) does hold that the

doctrine of special circumstances may be available to the plaintiffs in this in

seeking the addition of a party to litigation after the expiry of the limitation


Chiropractor pleads guilty to making false statements under oath

Chiropractor pleads guilty to making false statements under oath

A chiropractor with several clinics in Pierce and King counties has pleaded guilty to making false statements under oath during insurance-related depositions.

Alnoor Haider Bhanji, 43, of Issaquah, pleaded guilty to three counts of false swearing in King County Superior Court on Tuesday.

In depositions in three different lawsuits (in 2007, 2008 and 2010) involving insurers, Bhanji lied under oath. The false statements included:

• claiming that he didn’t know who owned his Federal Way clinic building,

• claiming that his brother was not associated with the chiropractic business in any way,

• and repeatedly denying knowing an individual who had a long history of bringing patients to Dr. Bhanji.

Each count is a gross misdemeanor with a maximum penalty of one year in jail and a fine of $5,000.

Sentencing is set for June 17.
How does a ticket affect my insurance rate?

How does a ticket affect my insurance rate?

A new study shows just how damaging speeding tickets or other moving violation citations can be to your insurance rates.

Insurance.com did an analysis of more than 32,000 insurance policies sold last year, and concluded that a single violation on a driver's record drove up rates by an average of 18 percent. Drivers with two violations paid an average of 34 percent more, and those with three paid 53 percent more.

Some of the violations that affect your auto insurance rates are no surprise: a DUI, for example, or fleeing from police, or wrong-way driving. But an improper passing citation also counts, as does failure to use a proper child restraint.

What typically doesn't count? Parking tickets.

Your driving record, of course, isn't the only thing that auto insurers consider. Here are some of the other factors that affect the cost of your auto insurance.
Medicare phone scam reported

Medicare phone scam reported

The state attorney general's office is warning about a phone scam that attempts to get people to reveal their banking information, supposedly as a way to get a special Medicare card.

From the post:
"Remember, government programs will never make unsolicited calls seeking financial or health information. Anyone who does so is a crook."
Click on the link above for more information about the scam -- as well as a similar one that the Nevada AG is warning about.
Filing a Holocaust-related life insurance claim

Filing a Holocaust-related life insurance claim

This morning's New York Times had a story about the ongoing struggle for Holocaust survivors to collect on life insurance policies.

The International Commission on Holocaust-Era Claims, which helped collect more than $1 million for Washington state claimants, stopped accepting claims in March of 2007. But you may still be able to file a claim. The following companies have agreed to accept post-deadline Holocaust-era claims directly from individuals:
  • Generali
  • Allianz
  • AXA
  • Winterthur
  • Zurich
  • as well as their affiliates and other German companies.
Also: After the closure of the international commission's claims period, Washington state's Holocaust Survivors Assistance Program has continued to help some claimants recover money from the Austrian General Settlement Fund.

For help or questions -- if you're a Washington state resident -- contact our office at 1-800-562-6900. (If you live in another state, here's a list of contact information for other state insurance departments.)
Our 2010 annual report

Our 2010 annual report

We've just posted our annual report for calendar year 2010.

It can tell you things like:
  • Washington premiums for earthquake insurance last year ($118 million). Claims were almost nonexistent.
  • Medical malpractice insurance premiums totaled ($157 million).
  • Who the top 40 companies are, for each line of insurance business.
  • Accident and health coverage is a $14 billion business in Washington.
  • Health insurers pay out an average of nearly 86 cents for every dollar in premiums they collect.
  • Mortgage guaranty insurance, due to the housing market turmoil, has seen a big surge in payouts over the past few years, and continues to lose money. Last year, these policies paid out nearly $1.76 for every dollar in premiums they collected.
And if you want to compare data year-to-year, we've posted all our annual reports online since 1998. (Here's an interesting one: Take a look at mortgage insurance claims in 2005, for example, compared to the last couple of years.)