Monday, December 31, 2012


Insurance statistics in Washington state

Each year, the Insurance Information Institute, an industry-backed research group, compiles data on the insurance industry in each state.

From this year's Washington edition:
  • Number of people working in the insurance industry in Washington state: 49,445.
  • Their payroll: $3.2 billion.
  • Premium taxes paid: $406 million
  • Premiums: About $19 billion.
The report includes a lot of other information, including details about which companies write the most insurance, losses incurred, etc.

Thursday, December 27, 2012


365 Tips for Healthy Living

Table of Contents
Intro

Tip 1. Colour Therapy, A Basic Guide to Putting Colour in Your Health
Tip 2. Recognize the Problem with Conventional Therapies
Tip 3. Use the Recovery Diet
Tip 4. Anti-Aging Therapies
Tip 5. Basic Nutritional Principles
Tip 6. Basic Dietary Treatment Principles
Tip 7. Basic Vegetarianism
Tip 8. Get to Know Healthy Kitchen Practices
Tip 9. Control Inflammation with Cold
Tip 10. Control Pain with Heat
Tip 11. Fasting Is a Time of Rest
Tip 12. Hydrotherapy, the treatment of disease with the bath
Tip 13. A simple nature cure for inflammatory conditions is the cold footbath.
Tip 14. The cold hipbath is a routine treatment in most diseases.
Tip 15. The Epsom salt bath is useful in many conditions.
Tip 16. A simple nature cure is the hot footbath.
Tip 17. A hot hipbath relieves conditions “below the belt.”
Tip 18. The hot immersion bath is a surprising cure for obesity.
Tip 19. Use the mud bath to remove impurities.
Tip 20. Enhance beauty with the mudpack.



Aetna fined $1 million for insurance violations

A Connecticut insurance company has been fined $1 million by Washington State Insurance Commissioner Mike Kreidler for multiple violations over several years.

Aetna Life Insurance Company has agreed to pay the fine. The violations include issuing unapproved insurance policies, failing to file legally-required documents with the state and charging unapproved rates.

“All insurers must comply with state law, and most of them do,” said Kreidler. “I hope that this fine and compliance plan resolves these problems with Aetna.”

Among the violations:

• Starting in 2005, Aetna issued health, disability or life insurance policies to more than 4,400 people that did not comply with state law. Among the violations: The policies had not been filed for approval with Washington state.

• Also starting in 2005, the company issued health policies that did not include all Washington state health care mandates. Nor did they describe Washington’s appeals and grievance process, as required by law.

• For more than three years, Aetna continued to sell a health policy that had been disapproved.

• Starting in 2009, Aetna issued other health, disability and life policies that had not been filed with the state. Some of those health policies that did not include all Washington state mandates. Nor did the company have an approved appeals and grievance process for those plans.

• In 2010 and 2011, Aetna issued medical and dental plans for more than 100 Nordstrom retirees that had not been approved by Kreidler’s office, as required by law.

The company has also agreed to a compliance plan designed to prevent similar problems in the future.

Fines issued by Kreidler’s office do not go to the insurance commissioner’s office. The money collected goes to the state’s general fund.

Yak insurance vs. yakking about insurance

Nepalese herders, tired of losing their livestock to snow leopards, have come up with an insurance plan to compensate them when a leopard kills a yak.

The herders pay about $1.50 a year to cover each yak, and are paid about $50 if the yak is killed by a snow leopard.

(On a side note, we're betting that this story is driving a significant amount of traffic to insuranceyak.com, which is a blog devoted not to yak insurance, but to yakking about insurance.)

Monday, December 24, 2012


Order approving Amerigroup WA acquisition by WellPoint


We've gotten a number of calls from analysts about this: Here's the final order approving acquisition of Amerigroup Washington Inc. by WellPoint, Inc.

For the full history and the rest of the documents, see this page and scroll down to "Amerigroup Washington Inc."


Happy Holidays

Happy holidays from the Ontario Insurance Law Blog.  We'll be back in January with our weekly posts.  We wish you all the best in 2013.

Wednesday, December 19, 2012


When Has FSCO Mediation Failed - Part 2

Last week, we blogged on the Court of Appeal`s decision in Hurst v. Aviva, which held that insureds may proceed to bring court actions or arbitration proceedings if 60 days have passed since an application for mediation at FSCO has been filed and no mediation has taken place.

The Court released its decision in Younis v. State Farm Insurance Company, 2012 ONCA 836 (C.A.) concurrently with Hurst.  In the Hurst actions, the 60 day period had elapsed prior to the insured filing a court action.  In Younis, however, the claimant applied for mediation on July 14, 2011 and filed a court action a few days later. State Farm`s motion to stay the action took place well after the 60 day period had elapsed.  Justice Sloan refused to stay the action. 

The Court of Appeal allowed the appeal.  The Court held that the insured commenced his action in contravention of the statutory requirement by not waiting 60 days.  Since Younis had not waited until mediation had failed, his action was barred.  To allow otherwise would permit insured person to immediately commence civil actions and the statute did not permit this tactic.

Sunday, December 16, 2012


High wind warning in south Puget Sound -- gusts up to 60 mph Sun and Mon

The National Weather Service has issued a high wind warning for the south Puget Sound area, including south Tacoma, Olympia, the southern part of Hood Canal, Montesano, Chehalis and Centralia.

A "southerly wind 15 to 30 mph will develop late this evening (Sunday)...then switch to southwest wind 30 to 40 mph with gusts to 60 mph late tonight and Monday morning," the NWS said. "Winds will slowly ease Monday afternoon."

High winds -- especially when soils are soaked, as they are now -- can topple trees, cut power lines, etc. After winter storms, we often get a flurry of calls from folks wondering what their homeowners and auto insurance covers. Here are some of the most common questions we get, along with the answers.

Update: (10 a.m. Monday) The winds have died down, although we might get a bit of snow tonight.

Friday, December 14, 2012


Hole-in-one golf insurer extradited to face felony charges in WA

From a news release we sent out today:
OLYMPIA, Wash. – A Connecticut businessman who insures golf tournament hole-in-one prizes but has a history of failing to pay has been extradited to Washington to face charges.

Kevin Kolenda, 55, of Norwalk, Conn., was flown from Connecticut to Washington under guard Thursday. He has been booked into the King County Jail. He’s expected to be arraigned Monday at King County Superior Court in Seattle.

“It’s rare that we have to go to these extremes to rein in a scammer,” said Washington Insurance Commissioner Mike Kreidler. “But Mr. Kolenda’s been thumbing his nose at regulators for years. Arresting him seems to be the only way to get his attention.”

In August, Kolenda was charged in King County Superior Court with five counts of transacting insurance without a license, a class B felony. His arraignment was slated for Sept. 5, but he failed to show up. A judge issued a bench warrant for Kolenda’s arrest.

In addition to failing to show up in court, Kolenda also ignored a Washington cease-and-desist order in 2004 and a $125,000 fine in 2008.

On Sept. 26, Kolenda was arrested on the Washington bench warrant by police in Norwalk. He has been held since then in jail in Connecticut, pending extradition. His transfer to Washington was approved in November by Connecticut Gov. Dannel Malloy.

“I’m very grateful to everyone who’s helped us get Mr. Kolenda here to Washington to face justice,” said Kreidler. “He has a long history of selling illegal insurance and refusing to pay prize winners.”
In some cases, charities have had to come up with the prize money that Kolenda refused to pay. In others, the prize winners agreed to forgo a prize.

Kolenda in 1995 started a business called Golf Marketing, working out of a home his parents owned in Norwalk. Since then, the business’ name has changed several times, including: Golf Marketing Worldwide LLC, Golf Marketing Inc., Hole-in-Won.com, and currently Hole-in-Won.com Worldwide. The company also has a regional office in Rye, N.Y.

Kolenda has repeatedly failed to pay winning golfers in Washington. Among them:

• In 2003, Kolenda illegally sold insurance for a tournament in Bremerton. But when a golfer got a hole in one and tried to claim the $10,000 prize, Kolenda wouldn’t pay.

• In 2004, Kolenda sold insurance for a Vancouver tournament. Again, a golfer got a hole in one. Kolenda refused to pay the $50,000 prize. After a hearing at which Kolenda failed to appear, he was ordered in 2008 to pay a $125,000 fine. He never did.

• In 2010, Kolenda sold coverage to pay $25,000 for a hole in one during a golf tournament in Snohomish. A player got a hole in one. His golf partners signed notarized forms attesting to the hole in one. The prize remains unpaid, despite numerous calls and emails from the partners and tournament officials.

Similar allegations have been made against Mr. Kolenda and/or his business in numerous other states, including Montana, Ohio, Georgia, California, New York, Hawaii, Alabama, Massachusetts, Florida, Connecticut and North Carolina.

Thursday, December 13, 2012


Job opening: .NET developer


We're recruiting to fill a position for an information technology specialist 4 (.NET developer) in our operations division in Tumwater, Wash.

The successful applicant's duties will include software development of mission-critical agency systems, systems analysis, as well as software unit and quality assurance testing.

For more specifics, duties, salary, timeline, etc., please see the full job listing.

Guilty plea from man who hit car, then bought insurance


A Blaine man who rear-ended another driver, rushed to buy insurance, then claimed that the crash happened afterward has pleaded guilty to insurance fraud.

Mark Traxler, 51, let his auto insurance lapse in January because he didn't pay the premium.

Two weeks after his coverage ended, he hit a car in Bellingham, causing more than $5,000 in damage.

He immediately went to his insurance agent and paid for new coverage. By nightfall, the other driver had made a claim against his policy.

The problem: Traxler said that the accident happened after he'd bought the coverage, when a 9-1-1 call placed by the other driver indicated that it happened before.

Traxler today pleaded guilty in Whatcom County Superior Court. He was sentenced to 364 days in jail, but 354 were suspended on the conditions that he do 80 hours of community service, pay a $250 crime victim penalty assessment, a $200 filing fee and a $500 fine.

Wednesday, December 12, 2012


When Has FSCO Mediation Failed - Part 1

We previously blogged on the decision in Cornie v. State Farm, in which Justice Sloan held that insureds may commence claims against their accident benefits carriers if 60 days have elapsed since an application for mediation has been filed, even if mediation itself has not occurred.  The Court of Appeal has now released its appeal decision in Hurst v. Aviva, 2012 ONCA 837 (C.A.).

Section 281(2) of the Insurance Act prevents insured persons from commencing court actions or arbitrations against their insurers unless they first seek mediation and mediation has failed.  The claimants waited 60 days after applying for mediation and when no mediation had taken place, they commenced actions.  FSCO`s position was that the prescribed 60 day time limit for conducting mediation did not begin to run until an application for mediation had been assessed by FSCO and found to be complete.  FSCO refused to issue a report declaring the mediations had failed.  The insurers in four actions brought motions to have the actions stayed on the basis that they were barred by s. 281(2) as mediation had not taken place.  Justice Sloan dismissed the motions and the insurers appealed. 

The Court of Appeal dismissed the appeals.  The Court concluded that the process is intended to be completed with 60 days after an application for mediation has been filed; however, if mediation has not taken place within 60 days, insured persons are free to pursue either court action or arbitration. 

The Court rejected the insurers` arguments that the cost to the industry could be $83 million as a result of the interpretation of the Act that does not require mediation to actually take place.  The insurers submitted statistics that 75% of claims are resolved by mediation at FSCO.  One has to expect a flood of court proceedings as a result of this decision, along with significant costs to insurers.

Tuesday, December 11, 2012


Job opening: Market analyst

We're recruiting to fill one permanent position for a market analyst in our Tumwater, Wash. building.

The person will be responsible for conducting market analysis of regulated entities (e.g. insurance companies) under the direction of our chief market analyst. We provide regulatory oversight of market interactions between consumers and companies, in order to protect consumers and promote a healthy business environment.

Please see the full job listing for a description of the job duties, salary, benefits, etc.

Monday, December 10, 2012


Coming soon: Our revamped website

For more than a year now, we've been working hard behind the scenes developing an easier-to-use website. While insurance industry professionals -- agents, brokers and insurers -- are familiar with navigating our site, testing showed that consumers could only complete site-related tasks about a third of the time. That's a problem, obviously, when a key part of our mission is informing and protecting consumers.

So we've revised the navigational structure of the site to make it a lot more intuitive. For years, for example, much of the navigational structure on the site simply mirrored the agency's organizational chart, rather than putting things where average users would expect them to be.

Along the way, we've repeatedly tested the changes on both consumers and industry professionals to make sure that we really are improving things, rather than just changing them.

The upshot: Successful task completion on the website for consumers, which is about 33 percent on our current website, rises to nearly 80 percent on our new prototype website, pictured below.

We're also changing the look and feel of the site to update it. The site isn't live yet, but we're expecting to make the change in mid-January.

There will inevitably be some hiccups and things we'll need to fix, but we think you'll like the new site better. And we know it will be easier to use.

Wednesday, December 5, 2012


20,000 Washingtonians potentially affected by data breach at Nationwide Insurance

An October data breach in a Nationwide Insurance computer network resulted in personal information for thousands of Washingtonians being stolen, according to company officials.

"On October 3, 2012, a portion of our computer network that is used by Nationwide Insurance and Allied Insurance was criminally intruded upon by an unidentified perpetrator. We discovered the attack that day, and took immediate steps to contain the intrusion," Nationwide attorney Samuel Lee notified our office recently.

The company has said that more than 1.1 million people's personal information may have been affected. Some of them are not Nationwide customers. Apparently, some people who might have just gotten quotes, etc. are on the list of those who may have been affected. We've been contacted by some of these people, and since they're not Nationwide customers, they initially think the letter is some kind of scam or sales pitch for ID theft services.

"Although we are still investigating the incident, our initial analysis has indicated that the compromised information included individuals’ name and some combination of their Social Security number, driver’s license number and/or their date of birth and possibly their marital status, gender, and occupation, and the name and address of their employer," Lee wrote.

The attack was reported to law enforcement, including the FBI, who are investigating. Nationwide is sending notification letters to 20,916 people whose personal information may have been compromised. The company says it is tightening network security. It is also offering a year of free credit monitoring and identity theft protection services to those 20,916 people.

In the letter being sent out, the company apologizes for the data breach and says "we are not aware of any misuse of your information at this time."

Nationwide customers should watch for a letter in the mail, or they can call a special hotline the company has set up: 1-800-760-1125.

The state attorney general's office also maintains an excellent page with detailed tips on preventing and dealing with identity theft.

Appellate Jurisdiction

Under the Courts of Justice Act, appeals relating to amounts greater than $50,000 must be made to the Court of Appeal.  Appeals of judgments relating to amounts under $50,000 are to the Divisional Court.  Where only a portion of a judgment is appealed, does the jurisdiction change?

In Grammatico v. Chambers, 2012 ONSC 6518 (Div. Ct.), the parties disagreed on whether the proper court to hear an appeal was the Divisional Court or the Court of Appeal.  The substantive judgment involved sums greater than $50,000, the threshold imposed by s. 19(1.2) of the Courts of Justice Act for appeals to the Court of Appeal. The defendant argued that it sought to appeal an interest component relating to costs, rather than the substantive judgment.  Since the amount would be less than $50,000 the defendant's position was that the appeal was to the Divisional Court.

Justice Eberhard held that the appeal was to the Court of Appeal.  The jurisdiction for appeal must be determined by the aggregate of the sums awarded.  The fact that only one part of the decision was under appeal did not determine jurisdiction.

Tuesday, December 4, 2012


Think you have flood insurance? Make sure.

Again, we can't say it enough: Homeowners and businesses in flood-prone areas should make sure they have adequate flood coverage.

“Standard homeowners or business policies do not cover flooding,” said Insurance Commissioner Mike Kreidler. “It’s tragic when people don’t discover that until it’s too late.”

The federally-run National Flood Insurance Program (www.floodsmart.gov) is the first stop for most people seeking flood coverage. The program was created by Congress in 1968. It offers flood insurance to homeowners, renters and business owners in communities that have taken certain steps to help reduce the risk of flooding. There is a 30-day waiting period for most policies, so it’s important not to delay.

Many insurance agents offer National Flood Insurance Program policies. The average NFIP policy costs about $600 a year.

“Renters should also strongly consider flood coverage for their belongings,” Kreidler said. “That coverage, which starts at $49 a year, is inexpensive. Replacing your stuff is not.”

Mortgage lenders in flood-prone areas typically require flood coverage. But homeowners often later let that coverage lapse.

The National Flood Insurance Program website has online tools to estimate the flood risk at a particular address, as well as damage estimates from different flood levels.

Friday, November 30, 2012


Don't forget flood coverage

We can't stress this enough: many people assume that their homeowners policy includes flood coverage.

It doesn't. Standard homeowners-, renters- and business policies do not cover flood damage. If your property is in a flood prone area, you should strongly consider buying flood coverage.

How do you know if you're in a risky flood area? Type your address into the red box on the home page for the federally run National Flood Insurance Program. That's where most people buy their flood coverage. Many local insurance agents sell these policies.

And if you think a few inches of water wouldn't cause much damage, you might be surprised. The NFIP put together an interesting interactive simulator that details -- item by item -- the costs of different levels of flooding in a typical home. See the link above.



Wednesday, November 28, 2012


Costs on a Summary Judgment Motion

In Mo v. Johnson, the defendant successfully moved for summary judgment dismissing the plaintiff's claim.  Justice Morgan's decision on costs is reported at 2012 ONSC 6307 (CanLii)

One of the arguments made by the plaintiff was that the defendant was only entitled to costs of the motion, not the entire action.  Justice Morgan disagreed, holding that:

[24]      I agree with Mr. Bizezinski that where summary judgment dismisses the action, it is the costs of the action in its entirety that are at issue. To hold otherwise would allow a party who brings spurious litigation to cause the opposing side to incur substantial costs with no means of compensation. 

The defendant was awarded costs of the entire action on a substantial indemnity basis due to the plaintiff's conduct, which was described as "aggressive and high-handed".  The decision is a nice synopsis of some of the basic principles relating to costs. 

Friday, November 23, 2012


Michigan Health Care Claims Tax Fight -- Additional Rounds Ahead

It’s been a tough fight thus far in opposition to the Michigan Health Insurance Claims Assessment Act, which imposes a one percent (1%) assessment on all health care payers, including self-insured employers and certain business partners, for medical services rendered to Michigan residents in the state of Michigan.

As this blog has previously reported, business groups in Michigan signed off on the legislation last year noting it was part of a larger budget deal that was not as bad as possible alternatives.   ERISA preemption concerns were outweighed by the belief that self-insured employers could absorb the new tax without much disruption. 

Then in August of this year, a federal district court in Michigan dismissed an ERISA preemption lawsuit, which contended that the administrative obligations imposed by the Act are unlawful.    

Game over?  Well, not exactly.

An appeal of the District’s court ruling has just by filed with the Sixth Circuit Court Appeals and incorporates some very strong arguments to justify a reversal.  And this time, the self-insurance industry will have an unlikely ally in this legal fight – organized labor. 

What has not been widely recognized is that the tax applies to self-insured Taft-Hartley plans and the ERISA preemption argument is even stronger as it relates to these plans.   So it is a positive development that at least two Taft-Hartley plans are expected file amicus briefs next week. 

But while more pressure is being applied in Federal Court, things are heating back up in the Michigan State Legislature to make the tax significantly more onerous.

The Act was structured based on the assumption that it would raise $400 in annual revenue from all payers.   Of course, government budgeting is often suspect and Michigan bureaucrats have lived up to this reputation.  Through the first half of 2012, the state collected only $109 million from the health claims tax, which means the annualized estimate is short nearly $200 million.

So it should not come as any surprise that the Michigan Legislature is now considering a proposal during a lame duck session to significantly hike the tax.  SB 1359, introduced earlier this month, would allow for an unlimited and variable rate on the claims tax so that it would float up and down to ensure that the tax generates $400 million annually.  The bill would also eliminate the proportional credit/refund provision should the tax collect more than the $400 million target amount.

Interestingly, state business groups who provided tacit approval to the tax last year have now launched an aggressive lobbying effort to defeat the proposed 2.0 version.   We’ll see if labor groups join the cause. 

While it’s certainly encouraging that there is strong push back against SB 1359, the opposition remains focused on the economic argument.    Yes, this is clearly important but arguably not as important as the ERISA preemption issue.

We’ll concede that the most self-insured employers in Michigan have figured out how to comply with this new tax obligation, but multi-state employers will also tell you that if other states implement a similar tax scheme this would greatly complicate compliance efforts.  In turn, this could make the self-insurance option much less attractive – a particularly troubling development in the post-ACA world where self-insurance offers a critical safe harbor.

Look around.  Most states have budget challenges, especially as it relates to health care obligations.  If the Michigan tax withstands legal and legislative challenges then we should not be surprised if other states attempt the same approach.

So the stakes are high in Michigan as it is now ground zero in the ERISA preemption fight.

Oral Diseases and Your Health


Oral Diseases and Health

Oral diseases not only affect mouth to mouth area, but impact in various parts of the human body, so it is important to have good hygiene to ensure the elimination of bacteria.

For people, it is very important to have a healthy white smile, but when not properly care for infections can appear uncomfortable. In here you will familiar with the most common diseases of oral health.

Oral Diseases and Your Health

Oral Caries:
 
A crack in the teeth is caused by food acids decaying. It affects more than 90% of the world population.Regularly recorded on the outside, but if not treated in time, can affect the nerve, causing severe pain and loss of tooth. The poor oral hygiene and sugary food intake favor its appearance.

Oral Gingivitis:

Gingivitis is generated by improper brushing, poor flossing and smoking involves the inflammation of the gums caused by an infection (bacteria) or the accumulation of plaque and tartar. If not attended to in time, can affect the bone and become a periodontitis.

Its symptoms include bleeding, swelling, redness, sensitivity to cold and bad breath.

Oral Diseases and Your Health

Periodontists:

Periodontists is a progressive infection of the gums and bone loss around the teeth, which causes the release of teeth.

Most cases result from prolonged accumulation of plaque and calculus on teeth. Its main symptoms are intense redness of the gums, pain and inflammation without eating or light bleeding during brushing.

Oral Cancer:

When there is no proper cleaning, your mouth can harbor many germs and bacteria that cause this type of oral disease. It manifests from any sores, inflammation or ulceration last long.

Some risk factors that trigger the disease are: smoking, alcohol, diet deficient in vitamins A, E, C and iron, a viral infection or excessive sun exposure.

Halitosis: 

Poor oral hygiene, tooth decay and smoking are the causes of bad breath in adults. It is important to visit the dentist to make a diagnosis and prescribe appropriate treatment.

Experts Recommendation:

Oral experts recommend avoiding sweets and sugary drinks, eating a balanced diet, brush twice a day with quality tooth brush and tooth paste in proper ways, flossing and regular visits to the dentist for a check-up.

Wednesday, November 21, 2012


Job opening: Senior market analyst

We're looking for a senior market analyst in our Tumwater office. Here's the job description, including salary, responsibilities, and timeline. The deadline for applying  is just before 5 p.m. on Monday, Dec. 3.*

Also, we still have an opening for an Information Technology Specialist 4 (.NET developer).

*Update: The deadline has now been extended to Dec. 17, 2012.

One computer, one camera, fake invoices...and four different insurance claims

A Renton man has been sentenced to jail plus community service after submitting thousands of dollars in bogus claims for a $4,900 laptop, and a $3,200 camera.

Between December 2010 and September 2011, Michael Tran Lai, 32, filed multiple claims with four different insurance companies claiming the loss of the MacBook Pro laptop and Nikon camera. He claimed they were stolen from a car, or lost in luggage while travelling, or stolen from his hotel room. The invoices turned out to be fake.

He also filed multiple claims for the same accident damage to his Lexus.

Laid was sentenced Nov. 16 to 10 days in jail, 160 hours of community service, and $854 in court fees and costs. A restitution hearing is also pending.

Tips to avoid a turkey-fryer fire...because here's what that looks like

The turkey-fryer disaster video is a YouTube holiday staple, and it's not surprising. Oil burns really well. Turkeys are big.
The biggest mistake seems to be this: overfilling the pot and plunging a big turkey in while the flame is lit, causing a lot of oil to splash over the sides and, yup, ignite.
Bigtime.

  
And sometimes, this happens on a deck or close to a house.

So if you must fry your turkey, here are some key tips:
  • Fry outside, away from the house.
  • Do not overfill the pot with oil.
  • Properly thaw the turkey.
  • Turn off the flame before adding the turkey.
  • Use the grappling-hook thing to lower the turkey in carefully (and not splash oil).
  • Be careful of oil splattering on your arms. Splashed boiling oil can cause horrible burns.
  • And -- if in doubt, review video No. 2 above -- keep a grease-approved fire extinguisher handy.
Bonus round: Actual turkey-fryer-mishap-victim William Shatner reviews these points in his cautionary video "Eat, Fry, Love."

Cost of Productions

Who pays for the cost of producing documents?

In Veillette v. Piazza Family Trust, 2012 ONSC 4782 (S.C.J.), the plaintiffs brought a motion to compel the defendant to answer undertakings and refusals he gave on an examination in aid of execution.  The defendant took the position that the plaintiffs must pay any charges for obtaining the documents.

The Court cited two cases dealing with production of documents before trial, Ho v. O’Young-Lui, 2002 CanLII 6346 (ON SC), and Traverse v. Turnbull, [1996] N.S.J. No. 212 N.S.C.A. which held that the general rule is the party in possession or control of the documents is to produce them at their expense, although the court has residual discretion to depart from that rule where fairness and justice so require.  The general rule may be altered if its application would prevent a party from presenting its case.  Justice Kane held that there was no reason to depart from the general rule.

Although this case deals with an examination in aid of execution, disagreement over who pays for documents can often arise in the context of examination for discovery.  The Veillette case is useful in providing a succinct argument as to why plaintiffs should bear the cost of producing their documents.

Tuesday, November 20, 2012


Flood warning update

Flood warnings remain in effect in the following counties: Grays Harbor, Lewis, Mason and Thurston, with some gale warnings and small craft advisories offshore.

Here's the complete list from the National Weather Service office in Seattle.

Monday, November 19, 2012


Flood, high wind and storm warnings in WA

The National Weather Service has issued a long list of flood-, wind- and storm warnings, watches and advisories today. Here's a roundup:

A flood warning has been issued for the Chehalis River at Centralia (in Lewis County) and the Chehalis River near Grand Mound (in Thurston County). Moderate flooding is expected, and the weather service is warning motorists not to try driving through flooded areas -- the most common cause of flood-related deaths in Washington.

In Lewis County, the flood warning will be in effect from Tuesday morning to Wednesday evening, with the river expected to hit flood stage around 9 a.m. Tuesday and crest 4 feet over flood stage around 4 p.m. Tuesday.

What's that mean? At four feet over flood stage, the weather service says, "The Chehalis River in Lewis County will flood some residential and commercial areas with water encroaching upon the first floor of some homes and businesses. Swift flood waters will cover some roads.

At Grand Mound, the river's expected to hit flood stage around 7 a.m. Tuesday and crest about 2 1/2 feet over flood stage around 4 a.m. Wednesday. Flooding of several roads in Independence Valley is expected, including SR 12 and James-, Independence-, Moon- and Anderson roads. Flood waters are expected to cut off access to and from Chehalis Reservation and inundate nearby farmland.

Minor to moderate flooding is also predicted the the Chehalis River near Doty (Lewis County), the Newaukum near Chehalis (Lewis), the Satsop River near Satsop (Grays Harbor County) and the Skokomish River near Potlatch (Mason). There's a flood advisory -- meaning minor flooding is possible -- for a dozen western Washington counties, as well as western Kittitas, Klickitat and Yakima counties.

A high wind warning is in effect for Seattle and the central coast areas, with the strongest winds occurring as we post this, with the warning lasting until 3 p.m. South winds of 25-35 miles an hour have been reported, with gusts near 60 miles an hour.

A winter storm warning has been issued for the Cascade mountains above 4,500 feet, with periods of heavy snow expected to persist through evening. An additional 1-2 feet of snow is likely, especially over the North Cascades, the weather service says.

Similarly, a winter weather advisory is in effect for the Olympic mountains above 5,000 feet, with 6-11 inches of snow expected, but tapering off late today.

Fraud charges for man who hit car, then bought insurance

A Blaine man who rear-ended another driver, rushed to buy insurance, then claimed that the crash happened afterward has been charged with insurance fraud.

Mark Traxler, 51, let his auto insurance lapse in January because he didn't pay the premium.

Two weeks after his coverage ended, he hit a car in Bellingham, causing more than $5,000 in damage.

He immediately went to his insurance agent and paid for new coverage. By nightfall, the other driver had made a claim against his policy.

The problem: Traxler said that the accident happened after he'd bought the coverage, when a 9-1-1 call placed by the other driver indicated that it happened before.

Traxler has been charged in Whatcom County Superior Court with insurance fraud.

Sunday, November 18, 2012


Tuberculosis

Tuberculosis Causes, Consequences, Symptoms and Treatment

The cause of tuberculosis is Mycobacterium tuberculosis or Mycobacterium. Diagnosis, treatment and prevention will minimize the effects, consequences and contagion.

The tuberculosis is usually associated with the lungs, but can affect other organs of the body such as the kidneys, lymph nodes, joints and also cause meningitis. While tuberculosis had long ceased to be a medical problem of the first order, with the onset of AIDS, infectious disease again requires special attention.

Tuberculosis Causes, Consequences, Symptoms and Treatment

Indeed, immune compromised patients are especially susceptible to attack by the Koch bacillus, name given in honor of its discoverer, the German Nobel laureate Robert Koch. As a curious note is the estimate that talks about one third of the world population infected by this bacterium. It is undoubtedly infectious disease with a higher rate of prevalence, but yes, only 10% go on to develops the disease. The immune system, in normal conditions, is effective in slowing the progression of the disease, but when lowered defenses alarming levels, as in the case of AIDS, then the problem becomes.

TB vaccines: BCG

The TB vaccine, known as BCG vaccine - was created from live attenuated bacilli of Mycobacterium bovis, known as Bacillus Calmette-Guerin. Vaccination of newborns abandoned in Spain for over 30 years, with the exception of the Basque Country, where he still remains.

The systematic application of the vaccine is recommended in the following cases:
Developing countries have with high prevalence rates of tuberculosis.
Children who are living in that areas or social groups have high risk of infection.
Children in developed countries that constitute risk groups and not apply other prevention strategies.
Health workers are frequently contact with tuberculosis patients.

The BCG vaccine is contraindicated in some cases:
Congenital or acquired immunodeficiency.
Previously infected individuals, have developed or no disease (positive tuberculin test).
Skin diseases.
Pregnancy.

Symptoms and diagnosis of tuberculosis

The most common manifestation of the disease is pulmonary tuberculosis. This is transmitted through coughing, sneezing and, in general, and prolonged close contact with the infected.
The symptoms most commonly associated with tuberculosis are chills and night sweats, cough, loss of appetite, chest pain, malaise and considerable weight loss. The symptoms are similar to pneumonia, but while this has a faster development-a few days or even hours-TB is a process that takes weeks.
The diagnosis of pulmonary tuberculosis is performed from the clinical history, chest radiography and sputum, which identifies the culprit: Koch's bacillus.
In cases of infections that affect the lungs, which often occur after lung infections or asymptomatic infections, there is a persistent fever with significant weight loss without an identifiable cause.

Treatment of tuberculosis

Drug treatment is started in 1944, with the emergence of streptomycin and para-aminosalicylic acid. Later, in 1950, would prove that a combination therapy of two antimicrobial agents was more effective than initial immunotherapy. Two years later, a new drug isoniazid, which is added to the combination and improves? In 1960 ethambutol therapy also includes reducing the duration of treatment to 18 months. In the seventies rifampicin becomes part of the combination treatment reduced by half. And in 1980 is included in the treatment pyrazinamide, again reducing treatment, in this case to 6 months.
Antituberculostaticos drugs are classified into two groups according to their efficacy, potency and side effects. Which are known as first-line drugs mentioned in the previous paragraph. The second-line drugs such as ethionamide, cycloserine or ciprofloxacin, are used in cases of resistant tuberculosis or when intended to avoid the side effects of first-line drugs.

Saturday, November 17, 2012


Captives & Dodd-Frank -- Hitting the Right Target

The recent announcement of an industry coalition to push for federal legislation clarifying that the Nonadmitted and Reinsurance Reform Act (NRRA), included as part of the Dodd-Frank law, does not apply to captive insurance companies certainly sounds like a positive initiative.  But despite good intentions, this blog is skeptical that it will acheive the desired result.

We have actually been tracking this issue for some time and is aware of discussions that have taken place with key congressional sources regarding the viability of a possible legislative fix (two conversations as recent as yesterday).  The consensus is that it could be done technically, but DC politics dictate that such an effort would be a heavy lift.

The political reality is that neither Democrats nor Republicans have the appetite to open up the Dodd-Frank Law for any changes at this point. 

Truth be told, congressional Republicans don’t want to do anything to help the law actually work, as this was a highly partisan piece of legislation, much like the Patient Protection and Affordable Care Act.  The only way Republicans would be motivated to even consider amending the legislation is if such action would substantively lessen the administrative burdens on the banking industry and provide certainty to the business community, especially small business.

 Democrats, for their part, will be resistant to “technical amendment” legislation even if they support it in principle for fear that it would become a legislative vehicle where additional amendments would be grafted on with the intent of watering down the law.

And neither party wants to come back under fire from the powerful financial services industry lobby, which would surely happen if Dodd-Frank is opened back up – even for so-called technical fixes.   

But just for the sake of argument, let’s assume that legislation is introduced and some co-sponsors are lined up.  Does that mean success is any more likely?  Probably not.  To understand this assessment, we need to talk about the relative political power of interest groups in DC. 

While many of the larger lobbying organizations active in DC have the ability to block and/or shape legislation, there are far fewer who have enough political juice to get their own special interest legislation passed through Congress, no matter how limited. To be blunt, the captive insurance industry simply does not fit into this latter, more exclusive group.   

Finally, the country’s biggest captive domiciles simply do not have powerful congressional delegations with regard to insurance-related issues, which could potentially offset the deficiencies and complications described above.  That is not to say these members of Congress would not be forceful advocates, they simply are not positioned to move legislation envisioned by proponents of this approach.

So does all this mean that there will never be clarity relative to whether the NRRA applies to captives?  Well, it may not to come from Congress for the reasons we just explained, but it may come from federal regulators as part of the Dodd-Frank rule-making process. 

In fact, this avenue is now being actively explored by self-insurance industry lobbyists.   This strategy can best be described as a “surgical strike,” as opposed to an expensive and pro-longed “land war,” which the congressional route would surely become. 

We’ll see if the political operatives now engaged with the regulators can hit the target.  But at least an arguably clearer path has been identified.

 

 

 

 

 

 

Friday, November 16, 2012


The search for Big Daddy: barbecue case leads to insurance fraud charges

In the summer of 2011, a Renton man named Cassk Thomas, Jr. filed a claim with his insurer, saying that someone had stolen his his 26-foot, 8,500-pound, two-tank, three-grill barbecue smoker, dubbed "Big Daddy."

The barbecue had been stored behind a locked fence, he told police. Two screws on a hinge had been removed. The smoker, as well as the double-tandem-axle trailer it was mounted on, was gone. Thomas provided his insurance adjuster with an invoice from a Spokane company, totalling $32,343, for the trailer and smoker.

Thomas' insurer, American Family Insurance, paid Thomas $30,474 for the lost barbecue, as well as $24,668 for lost income while he sought a replacement barbecue.

Upon investigation, it turned out that the trailer was actually purchased from a company in Texas for less than a third of what Thomas claimed. A former business partner said it cost $9,470, and she provided paperwork showing that.

The company Thomas had named as the manufacturer in Spokane apparently does not exist. It's not listed with the state departments of licensing or revenue, not on the Internet, the business address is a residence and, in repeated attempts, no one answered the phone there. A company official named by Thomas turned out to be an old roomate of his.

Thomas has been charged in King County Superior Court with 1st degree theft and insurance fraud, both of which are felonies.

Wednesday, November 14, 2012


Martin v. Fleming - Deductibles


The Court of Appeal has now released its decision in Martin v. Fleming, which can be found at the following link: Martin v. Fleming, 2012 ONCA 750 (C.A.)

At issue was the operation of the deductible where a plaintiff has been in multiple accidents.  The motions judge ruled that where the plaintiff has been involved in two accidents and the actions are tried together, there is a deductible for each action.

In a brief endorsement, the Court of Appeal dismissed the appeal. They followed the motion judge's reasoning that s. 267.5(7) is unambiguous and the plaintiff is subject to two deductibles.

Although this is a brief endorsement, it is important to those defending claims where the plaintiff has been in multiple accidents.  Insurers for each defendant retain the benefit of the deductible.

Friday, November 9, 2012


A hard lesson for victims with flooded houses: standard homeowners policies don't cover flooding


The New York Times has a nuts-and-bolts story about insurance concerns in the wake of Hurricane Sandy, and all of the lessons apply here in Washington.

The biggest one -- and something that we repeat often -- is that a standard homeowners policy does not cover flooding. For that coverage, people typically buy a policy from the federally-run National Flood Insurance Program.

The problem is that unless required to by their lender, many homeowners simply don't get flood coverage. (And even those whose mortgage requires it often later let it lapse.)

The article covers things like who pays for tree removal, will you be reimbursed for living costs if your home is uninhabitable, and will an insurer cover the cost of ruined food when the power fails.

Thursday, November 8, 2012


25 free apps


The U.S. Department of Health and Human Services has compiled a list of free health-related applications, created by the feds, regarding health. They include apps for the iPhone, iPad, Android and iPod Touch.

The apps include:

Find a Health Center: Created by the Health Resources and Services Administration, this map-linked app helps you find the nearest federally funded health center, which will care for you even if you have no health insurance. Based on your income, you pay what you can afford.

The popular BMI calculator, which helps determine your body mass index.

Brrd Brawl: A mobile game developed to give jittery quitting smokers something to do with their hands.

52 Weeks of Women's Health: Info on 52 health topics, ranging from eye health to contraception. Also helps track medications, allergies, etc.

Other apps include help triaging injuries in the field, treating radiation injuries, quitting smoking, tracking the flu in your area, tracking a pregnancy and reuniting after a disaster.

Wednesday, November 7, 2012


Expert Independence

Do the new rules pertaining to expert evidence impose a higher duty than at common law?  When an expert is alleged to be biased due to a connection to one of the parties or a matter in issue, does it go to admissibility or weight? 

In Henderson v. Risi, 2012 ONSC 3459 (S.C.J.), the defendant proffered an expert, Mozessohn, to give testimony at trial regarding irregularities in the financial records of Timeless Inc., provide an opinion on the value of shares in Timeless held by the plaintiff, and critique the plaintiff expert's opinion.  The plaintiff objected to the admissibility of Mozessohn's evidence on the basis that he was not independent or impartial since he was a partner in the accounting firm that acted as Timeless' Trustee in Bankruptcy.  Mozessohn testified that there had been no communication between members of his firm about the case.

Justice Lederman quoted the Newfoundland Court of Appeal in Gallant v. Brake-Patten 2012 NLCA 23 (CanLII), which summed up the law regarding the admissibility of expert evidence where the allegation is the expert lacks institutional independence as opposed to personal advocacy:

In summary, in civil cases, if expert evidence meets the Mohan criteria for admissibility, it is admissible.  Bias or partiality in expert evidence which is based on the expert having a connection with a party or issue or a possible pre-disposition or approach in the case is a reliability issue which is best determined when the whole of the expert evidence is considered in the context of all of the trial evidence.  As such, the issue is one of weight and not admissibility.

Plaintiff's counsel argued that the new r. 4.1 and the changes to r. 53 imposed a higher level on duty on an expert in Ontario, and that the question of institutional independence must be determined at the admissibility stage rather than leaving it to be considered as a matter of weight.

Justice Lederman disagreed and allowed the expert to give testimony.  Rules 4.1 and 53 simply remind experts of their already existing obligations to provide opinion evidence that is fair, objective and non-partisan.  Any lack of institutional independence went to weight rather than admissibility.  The new rules impose no higher duties than already existed at common law.

Tuesday, November 6, 2012


Job opening: .NET developer

We're recruiting to fill a position for an information technology specialist 4 (.NET developer) in our operations division in Tumwater, Wash.

The successful applicant's duties will include software development of mission-critical agency systems, systems analysis, as well as software unit and quality assurance testing.

For more specifics, duties, salary, timeline, etc., please see the full job listing.

Three companies fined $605,000

Insurance Commissioner Mike Kreidler is fining three companies a total of $605,000 for violating Washington insurance laws.

“Our insurance laws protect consumers and maintain a level playing field in the insurance market,” said Kreidler. “Break the law and you’ll face the consequences.”

The fines were as follows:

PacifiCare of Washington (now known as UnitedHealthcare of Washington, Inc.) has agreed to pay a $400,000 fine for what state financial examiners concluded were improper royalties paid to an affiliated company. The company contended that the payments were administrative fees, but acknowledged that it had failed to annually reconcile the payments with actual costs to show that the company wasn’t overpaying.

In addition to the fine, the company has recovered the $72.9 million it paid between 1999 and late 2006.

STA Travel Inc., based in Texas, agreed to pay $115,000 for allowing unlicensed staffers to sell insurance policies in Washington. The company is a travel agency specializing in international college student travel. It sells travel insurance as part of its travel services.

Although the company’s office manager was a licensed insurance agent, under Washington law, all staff selling travel policies needed to be licensed. Policies were sold by unlicensed staffers from 2005 to 2011.

Lenovo (United States) Inc., incorporated in Delaware, has agreed to pay $90,000 for improperly selling 1,327 service contracts in Washington. The company failed to register as a service contract provider, as required by state law. The service contracts were sold from mid-2008 through mid-2012.

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.

Thursday, November 1, 2012


License revocation for insurance agent who allegedly faked own death

Washington Insurance Commissioner Mike Kreidler has issued an order to revoke the license of an Enumclaw insurance agent who allegedly faked his own death as part of a $2 million scam.

Aaron Travis Beaird, manager of Team Financial Services LLC, "knowingly devised a scheme and artifice to defraud consumers and to obtain money and property by means of false and fraudulent pretenses," according to the order.

Beaird would recomment to his clients that they liquidate one investment and transfer the money into another investment or insurance policy, making the checks out to his business.

The problem: Beaird didn't actually invest the money or buy a policy. Instead, according to the license revocation order, he'd take the money for "his own use and benefit." To cover things up, he would provide his clients with fake account statements.

Beaird was arrested in early July on federal charges of wire fraud and mail fraud. Investigators said he left a fake suicide note in his car, which was found parked near a bridge on June 23rd.

He pleaded guilty in federal district court Aug. 28th. He admitted to defrauding at least 11 people out of more than $1 million. He is currently incarcerated, awaiting sentencing,  at the SeaTac Federal Detention Center.

Beaird has the right to demand a hearing to contest the order.

Update: (Nov. 20) The revocation has taken effect.

Wednesday, October 31, 2012


Flood advisory issued for most of western Washington

The National Weather Service office in Seattle has issued an urban- and small-stream flood advisory for 14 counties throughout western Washington. Nearly 2 inches of rain has fallen across much of the area in the past 24 hours, with another 1-2 inches expected today.

Affected counties include:

CLALLAM COUNTY
ISLAND COUNTY
JEFFERSON COUNTY
SAN JUAN COUNTY
SKAGIT COUNTY
WHATCOM COUNTY
KING COUNTY
KITSAP COUNTY
LEWIS COUNTY
MASON COUNTY
PIERCE COUNTY
SNOHOMISH COUNTY
THURSTON COUNTY
GRAYS HARBOR COUNTY

Minor flooding is expected in urban areas and small streams into this evening, according to the NWS. The flood advisory has been extended to 6:30 p.m. today.

Restricting Summary Judgment

Are courts beginning to restrict the use of summary judgment?

Justice Brown took the opportunity to comment on summary judgment in a decision encompassing two cases, George Weston Limited v. Domtar Inc and 1318214 Ontario Limited v. Sobeys Capital Inc., 2012 ONSC 5001 (S.C.J.).  These were two cases from the Commerical List in Toronto where counsel sought to schedule summary judgment motions.  In George Weston, the plaintiff sought to schedule a summary judgment motion prior to examinations for discovery.  In 1318214 Ontario, discoveries were mostly complete and when the plaintiff sought to set the matter down for trial, the defendant advised it intended to bring a motion for partial summary judgment to limit the issues for trial.

Justice Brown laments the motion culture in Toronto and what he sees as a reluctance of counsel, especially counsel who have practiced for less than 15 years, to bring cases to trial.  He suggests that instead of bringing summary judgment motions, counsel should take more cases to trial and that courts should facilitate the process by approving innovative ways of proceeding to trial; for example, evidence could be a hybrid of written and viva voce evidence.

It will be interesting to see if other judges share Justice Brown's concerns and if courts will start restricting the use of summary judgment motions.  Defence counsel and insurers will need to carefully assess each case to determine whether the appropriate way is to proceed by way of summary judgment or whether it might be more beneficial to simply proceed to trial. 

Tuesday, October 30, 2012


Market Conduct Examiner position extended to Nov. 13

Please help us spread the word - We're currently hiring for a Market Conduct Examiner. Sound interesting? This person will work under our Chief Market Conduct Examiner or Lead Examiner Analyst, analyzing, reviewing and identifying the market conduct practices of health insurance companies and other regulated entities that could harm consumers.

This job posting is open until Nov. 13, so if you know someone who may be interested and who's up to the challenge, please tell them soon! See the salary, specific duties and other qualifications.

Thursday, October 25, 2012


Arraignment for Spokane man who claimed repo-ed truck was stolen

Andrew James Petrie, 28, was arraigned today in Spokane County Superior Court for claiming that his truck had been stolen when in reality it had been repossessed.

He faces one count of first-degree attempted theft and one count of insurance fraud.

Wednesday, October 24, 2012


In what state am I most likely to hit a deer?

Each year, State Farm compiles a list of deer-vehicle collisions and creates a list of states in which you're most likely to hit a deer.

West Virginia has topped the list for six years in a row, with other particularly dangerous states being virtually all of the northern Midwestern states and the mid-Atlantic states. South Dakota's No. 2, and Iowa's No. 3.

Washington, it turns out, is one of the lowest-risk states, coming in at No. 43 this year. Your odds of hitting a deer in the Evergreen State are a mere 1 in 477, according to State Farm's estimates.

The company estimates that there are about 10,700 collisons with deer in Washington state each year. (Compare that with, say, Pennsylvania's 115,000.)

Oregon is No. 37 on the list, and Idaho's 33.

Arizona, perhaps not surprisingly, is the stae in which you're least likely to run into a deer. Armadillos, however, were not part of the study.

Here's the full list.


Second Independent Medical Examination - Evidence

What evidence is necessary on a motion to compel the plaintiff to attend a second independent medical examination?

In Nasir v. Kochmanski, 2012 ONSC 4088 (S.C.J.), the plaintiff was a minor who was injured in a motor vehicle accident.  The claim alleged the plaintiff was struck while a pedestrian and sustained a head injury and various psychological impairments.  He had been assessed by a number of medical doctors and psychologists, both treating and arranged by plaintiff`s counsel.  He had been assessed by a paediatric neurologist on behalf of the defendant, although no report had been prepared.  The defendant sought to have the plaintiff assessed by a psychologist.  The proposed assessor wrote a letter to defence counsel outlining the assessment, its length, information she would require from the plaintiff`s parents, and test results from other assessments she required.

Justice Daley permitted the assessment.  The proposed assessment was outside the scope of expertise of the neurologist, according to the psychologist`s letter.  There was no evidence the assessment would delay trial or prejudice the plaintiff.  Since the plaintiff was very young, his evidence would be of limited evidentiary value, and the most probative and reliable evidence would have to come from experts.  Trial fairness favoured the second examination.

It should be noted that the evidence in support of the motion appears to come from a letter from the proposed assessor.  Justice Daley stated that it would have been preferable to have an affidavit or report from the neurologist outlining the need for a further examination, but accepted that there was enough evidence to support the motion.  There is some inconsistency in the case law as to the form of evidence needed on a motion for a further examination, and counsel should carefully consider whether it would be beneficial to have affidavit evidence. 

  

Tuesday, October 23, 2012


Kreidler fines insurer $500,000

Washington state Insurance Commissioner Mike Kreidler is fining Ohio-based BCS Insurance Company $500,000 for issuing hundreds of thousands of policies using unapproved rates and policy language.


“A fair insurance market depends on companies playing by the rules,” said Kreidler. “When an insurer files rates and policy language with us, that’s what we expect them to use.”

BCS Insurance has agreed to pay the fine. An additional $250,000 fine is suspended, provided the company commits no similar violations for two years. The company has also agreed to a two-year plan, including internal audits, to make sure the company is in compliance with Washington state law.

An investigation by Kreidler’s office found that between 2007 and 2009, BCS issued over 500,000 travel insurance policies that were different from the policy language filed with the state. Rates for identical benefits were inconsistent, depending on who the customer was.

Friday, October 19, 2012


How much of my driving record can an insurer use?

We get this question all the time.

The answer's found in a section of state law called WAC 284-30-500(3). (WAC stands for Washington Administrative Code.) Here's the key section, with some highlighting we added:

(3) It is an unfair practice for any insurer to consider traffic violations or accidents which occurred more than three years in the past, with respect to the acceptance, rejection, cancellation or nonrenewal of any insured under a private passenger automobile insurance policy, unless, because of the individual's violations, accidents or driving record during the three years immediately past, the earlier violations or accidents are significantly relevant to the individual's qualifications for insurance.

So insurers generally cannot use the older data as a basis to reject/cancel/non-renew you, but there is no prohibition against using the older data to assess risk and rate -- meaning set the cost of -- your auto policy.

Even if you have a problem driving record, it's always a good idea to shop around for alternative rates, since insurers don't all charge the same rate for the same level of coverage.

Wednesday, October 17, 2012


Catastrophic Impairment: Aviva v. Pastore

The Court of Appeal has released an important decision relating to catastrophic impairment:

Aviva Canada Inc. v. Pastore, 2012 ONCA 642 (C.A.)

The insured was injured in a 2002 motor vehicle accident as a pedestrian and sustained an ankle injury. She alleged her gait had been altered and was diagnosed with a pain disorder.  A DAC found her to be catastrophically impaired in 2005 due to a marked mental or behavioural impairment under s. 2(1.1)(g) of the SABS.  An assessment under s. 2(1.1)(g) is carried out with reference to the AMA Guides, which provide for an assessment of function in four categories:

(1)              Activities of daily living (ADL);
(2)              Social functioning;
(3)              Concentration, persistence and pace; and
(4)              Deterioration or decompensation in work or work-like settings.

Pastore was diagnosed with a number of psychological disorders and the DAC concluded that she had a class 4 marked impairment in activities of daily living.  The DAC concluded she was catastrophically impaired on the basis of the one class 4 impairment.  The insurer did not agree with the assessment and the matter proceeded to mediation then arbitration.

At arbitration, the arbitrator agreed with the DAC assessors and held that one marked impairment was enough to comply with the Guides approach to impairment.  In addition, it was appropriate to consider physical pain in assessing mental disorder, as it was not possible to factor out all physically based pain since it was intertwined with mentally based pain. The Director's Delegate upheld the decision, but the Divisional Court overturned the arbitrator.

The Court of Appeal allowed the appeal and reinstated the arbitrator`s decision.  The conclusion that only one marked impairment is sufficient to meet the definition of catastrophic impairment was a reasonable one. In addition, it was not an error for the DAC assessors to consider both physical and mental pain.

Pastore appears to have lowered the bar for catastrophic impairment based on a mental disorder and more claimants may be able to fit themselves into a catastrophic designation than prior to this decision.

Monday, October 15, 2012


Packaging Health Plan Fee Details for a Post-Election Launch

Self-insured employers have been waking up in recent weeks and months to the reality that they will soon be hit with new fees to finance a transitional reinsurance program provided for the in the Affordable Care Act (ACA).  But they are likely going to have to wait on the details until after the November elections.

As a quick refresher, the fees will be earmarked to capitalize reinsurance facilities in each state that serve as financial backstops for health insurance companies which offer individual coverage plans through public health insurance exchanges slated to come on-line in 2014.  Health insurance companies will also be subject to this fee.

What has caused some confusion is that the statute and a pre-curser rule finalized earlier this year references that third party administratorson behalf of self-insured plans will be responsible for paying the fee.   In private meetings over the summer, regulators clarified that it was not the intent that TPAs be financially liable for these fee, but rather they will be expected to assist in the collection of these fees from their clients.  Those details, along with the specific fee amounts, are still under wraps.

This blog has learned that an increasing number of large self-insured employers have been complaining directly to senior White House officials that the fee is fundamentally unfair because it helps to support the profitability health insurance companies, with no direct benefit for employers.  Responses have ranged from “we hear you but there is nothing we can do” to “there should be no complaining now because you (the employer community) signed off on this ACA provision during the legislative process.”

The former response is expected, but the latter response deserves some fact checking.

According to a source directly involved with drafting this section of the ACA, there is an interesting back story that is not widely known.  When legislative language was being developed, Democratic drafters did not understand the difference between independent TPAs with insurance company owned ASOs and did not understand that ASOs are typically separate business entities from their insurance company parents.

The reason why this is important is because ACA legislative drafters recognized that it did not make sense to impose fees on self-insured plans to subsidize insurance companies but they figured by referencing TPAs they would exclusively tap the fully-insured marketplace on the assumption that all TPAs were owned by insurance companies.

Only later in the legislative drafting process did they come to understand that many self-insured employers had no insurance company connection.  But by that time there was no turning back and there was no alternative to collecting the necessary revenue – all self-insured employers were going to have to pay.  No wonder that that the regulators have been slow with details on how this is all going to work.

So this brings back to the timing of when these details will be published.  Clearly if the Administration thought that employer community was going to be happy with the new rules, they would be released prior to Election Day.  But the best intel suggests that the proposed are done and are sitting right now at the Office of Management & Budget (OMB) awaiting a green light for release, likely shortly after election day.

The one positive detail is that the rules will be coming out in proposed form, so there will be an opportunity for formal stakeholder input -- just another thing to look forward to as we enter the holiday season.

Sunday, October 14, 2012


Michigan Health Care Claims Tax May Just Be The Opening Bid

This blog has previously reported about the one percent health care claims tax that the state of Michigan has imposed on all payers, including self-insured group health plans.  We have also commented on the refusal of most within the employer community to support a legal challenge to the law, which should be preempted by the Employee Retirement Income Security Act (ERISA).

While one prominent Michigan employer has privately been a big financial supporter of this self-insurance legal defense initiative, the state’s largest employer organizations, as well as at least one major national association focused on ERISA preemption issues have been on the sidelines.

Now, it’s probably unrealistic to expect that the average self-insured employer will take the time to think about the longer term implications of ERISA preemption erosions.  Significant as these implications are, those employers are more concerned about the immediate financial implications.

 Fair enough.  Let’s talk about this shorter term perspective. 

 We have just learned from a very reliable source that the revenue collected so far this from health claims tax is much lower than projected -- so much lower, in fact, that the state Legislature will likely consider a proposal to raise it early next year.

 For employers who ran the numbers and determined that they could absorb a one percent tax, they should get ready to do a new set of calculations, perhaps on a yearly basis going forward, should a federal appeals court not strike down the law.  At some point it would seem that this health care tax could become an important factor as employers consider whether self-insurance is as cost effective as it otherwise would be,

 And in case you think this issue is contained to Michigan, think again.  Other cash-strapped states are watching how things play out in Michigan and at least some are likely to follow-suit if they believe such action will go unchallenged.

 When a camel gets its nose under the tent the occupants should not be surprised that the damage often cannot be contained.  For self-insured employers with workers in Michigan, they may soon learn this important lesson.