Kreidler on Supreme Court case and the state health-care exchange

Kreidler on Supreme Court case and the state health-care exchange

Commissioner Kreidler sat down with TVW's Christina Salerno yesterday for a Q&A on health care reform, including this week's three days of arguments in the U.S. Supreme Court and the shape of the state's upcoming Health Benefits Exchange.

From the discussion:
What would change if they overturned the act?
People are directly benefiting from parts of the act today. People can stay on their parents’ insurance until 26, they can get preventive care with no deductibles — all of that would go away. (Attorney General) Rob McKenna’s lawsuit would undo all of that. The entire law may go down. We’d be back to square one, which is a system that’s failing us as a country and as a state. For many individuals, it was making a difference between life or death decisions.




State website access.wa.gov among the top nationwide

Well-deserved kudos to the folks who run Access.wa.gov, a Washington state website that helps make much of what government is doing available on one easy-to-navigate site.


The Sunshine Review, a nonprofit group focused on government accountability, recently awarded the site with an A+ grade, meaning that it's one of the most accessible state government sites in the country. From the group's report card on the site:

Elected officials are listed with contact information
Budgets are posted
Audits are posted
Contracts are posted in a searchable database
The site includes information on requesting public records
Lobbyist lists and reports are posted in a searchable database
etc.

(And a hat tip to The HDC Advance for the heads up on this.)
Invasion of Privacy Recognized as a Tort

Invasion of Privacy Recognized as a Tort

The Ontario Court of Appeal has recognized a tort of invasion of privacy.

In Jones v. Tsige, 2012 ONCA 32 (C.A.), the plaintiff discovered the defendant had been surreptitiously looking at her banking records. The parties worked at the same bank and Tsige was in a relationship with Jones’ ex-husband. Despite these connections, the parties did not know each other. Tsige claimed she had a financial dispute with Jones’ ex-husband and was accessing the account to confirm whether he was paying child support to Jones. Tsige was contrite and apologized for her actions.

A motions court judge dismissed the action on a motion for summary judgment on the basis that Ontario does not recognize a tort of invasion of privacy. The Court of Appeal allowed the appeal.

Justice Sharpe cited Professor Prosser in setting out four categories of invasion of privacy:
1. Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.
2. Public disclosure of embarrassing private facts about the plaintiff.
3. Publicity which places the plaintiff in a false light in the public eye.
4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.

This case falls within the “intrusion on seclusion” category. In order to make out a cause of action, a plaintiff must show:
1. an unauthorized intrusion;
2. that the intrusion was highly offensive to the reasonable person;
3. the matter intruded upon was private; and,
4. the intrusion caused anguish and suffering.

Justice Sharpe held that damages for intrustion on seclusion should be modest, and up to the range of $20,000. The quantum will depend on factors such as the nature of the intrusion, the effect on the plaintiff, the relationship between the parties, distress or embarassment suffered by the plaintiff, and the conduct of the parties, including any apology by the defendant. Justice Sharpe granted summary judgment to Jones in the amount of $10,000.

Will we see the floodgates open with these types of claims now? Privacy seems to be a “hot button” issue right now, and it seems that we may see more cases involving breaches of privacy in the future.

- Tara Pollitt
How to appeal when your health insurer says no

How to appeal when your health insurer says no

Seattle's KING 5 TV recently did a story on the case of a Tacoma man diagnosed with stage 4 cancer. After trying other treatments, his apparent only remaining option is an experimental anti-cancer drug that his insurer refuses to cover.

He contacted our office, and we're helping him navigate the appeals process. Many people don't realize that a denial by your health insurer is not the final word on the matter. There are multiple rounds of appeals available, including to what's called an "independent review organization," which is a group that has the power to require your insurer to cover a treatment or procedure. And more than a quarter of the people who appeal to an independent review organization win.

How to appeal the decision? We've put together a detailed appeals guide with sample letters to send your insurer. Take a look -- and don't give up.

Here's the story from KING 5:

Hearing next week on Humana's request to acquire Arcadian Health Plan

Hearing next week on Humana's request to acquire Arcadian Health Plan

From our public notices web page:

The Insurance Commissioner has scheduled a hearing for March 27, 2012 at 10:00 a.m. Pacific Time in his Tumwater, Washington office to consider whether he should approve or deny Humana Inc.’s request to acquire Washington-based Arcadian Health Plan, Inc.

Arcadian Health Plan, Inc. offers Medicare Advantage health products through the federal Centers for Medicare and Medicaid Services, and is wholly owned by its parent company, Arcadian Management Services, Inc. Arcadian Management Services, Inc. is currently owned by five venture capital investment funds affiliated with Morgan Stanley Dean Witter, and by Arcadian employees. Humana Inc. proposes to purchase the parent company and all of its subsidiaries including Arcadian Health Plan, Inc.

Humana Inc., which had $36.8 billion in revenue in 2011, and has 11.2 million covered individuals in its medical plans and another 7.3 million in its specialty plans nationwide, is proposing to acquire all outstanding stock of Arcadian Management Services, Inc.. If approved, Humana Inc. would wholly own Arcadian Management Services, Inc. and all six of its subsidiary health carriers including Arcadian Health Plan, Inc.; Arkansas Community Care, Inc.; Arcadian Health Plan of North Carolina, Inc.; Arcadian Health Plan of Georgia, Inc.; Arcadian Health Plan of Louisiana, Inc.; and Arcadian Health Plan of New York, Inc.

The public is notified that all interested parties may submit letters of support or objections and/or may participate in the hearing by appearing in person or by telephone. To view the Notice of Hearing, which includes advice on how to participate and other related documents, go to http://www.insurance.wa.gov/orders/hearings_proceedings.shtml
Our complaint- and rates Web applications will be down over the weekend

Our complaint- and rates Web applications will be down over the weekend

Two of our most popular Web applications will be off-line this weekend because of scheduled maintenance to our imaging software.

From 5 p.m. Friday until 8 a.m. Monday, these two systems will be down:
Thanks for your patience and understanding.
Health care reform: Two years later, what's changed?

Health care reform: Two years later, what's changed?

From a press release we put out this morning:

The Affordable Care Act’s most controversial component – the mandate requiring everyone to have health insurance – is still two years away. But two years after the law’s enactment, many Washington consumers are quietly benefitting from many of the laws lesser-noticed provisions.

“The Affordable Care Act’s individual mandate gets most of the attention, but it shouldn’t overshadow the success stories of the early reforms,” said Insurance Commissioner Mike Kreidler. “By far the most popular benefit of health reform that we hear about is the ability for parents to keep their adult kids on their health plans – especially in today’s economy – and there are many more.”

Among the changes that have already taken effect here in Washington state:

■More than 2.4 million Washingtonians no longer face lifetime limits on their health benefits.

■More than 52,000 young adults up to age 26 have been able to stay on their parents’ health plans.

■More than 1.2 million Washingtonians now have coverage for preventive care with no co-pays or deductibles.

For much more information about what's changed and is changing, click on the link above.
Police Personnel File Not Subject to Production

Police Personnel File Not Subject to Production

Andrushko v. Ontario, [2011] O.J. No. 3693 (Div. Ct.)

This decision will be of interest to those defending claims against police officers.

The plaintiff was suing for wrongful arrest and assault. He sought production of the officer’s personnel file on the basis that it might reveal a pattern of using unnecessary and excessive force. The Crown resisted on the basis that Part V of the Police Services Act contains a statutory prohibition against production. The motions court judge ordered production.

Part V of the Police Services Act contains the following provisions:

69.(8) No person shall be required to testify in a civil proceeding with regard to information obtained in the course of his or her duties, except at a hearing held under this Part. 1997, c. 8, s. 35.

(9) No document prepared as the result of a complaint is admissible in a civil pro-ceeding, except at a hearing held under this Part. 1997, c. 8, s. 35.
(10) No statement made during an attempt at informal resolution of a complaint is admissible in a civil proceeding, including a proceeding under subsection 64(15) or 65(17) or a hearing held under this Part, except with the consent of the person who made the statement.

...
1. Every person engaged in the administration of this Part shall preserve secrecy with respect to all information obtained in the course of his or her duties under this Part and shall not communicate such information to any other person except,

(a) as may be required in connection with the administration of this Act and the regulations;
(b) to his or her counsel;
(c) as may be required for law enforcement purposes; or
(d) with the consent of the person, if any, to whom the information re-lates.


The Divisional Court overturned the lower court decision. It held that any documents prepared as a result of a Part V complaint are not subject to production or admissible in a civil proceeding. If any documents in the personnel file were not prepared directly as a result of a Part V complaint, they would not be protected by its confidentiality provisions.

- Tara Pollitt

Where -- and why -- to find flood coverage

Another post for National Flood Safety Awareness Week: Here in the rainy Northwest, we can't say this often enough: a standard homeowners insurance policy does NOT cover flooding.

The good news is that flood insurance is widely available through the National Flood Insurance Program. It's a federally run insurance program, but sold by local agents and brokers. For most homeowners, the NFIP is the first stop for flood coverage.

If you live in an area with a high chance of flooding (a "Special Flood Hazard Area"), your lender will generally require you to have flood insurance. Even if you live in a minimal or moderate flood hazard area, you may still want to buy it.

There are, however, limits to federal flood insurance. For commercial structures, for example, the NFIP maximum is $500,000 for the building and $500,000 for the contents. Businesses also may need additional coverage that isn't available through the NFIP, such as business interruption coverage.
Insurance company claims representative pleads guilty to fraud on her own car

Insurance company claims representative pleads guilty to fraud on her own car

A Puyallup woman has pleaded guilty to attempted forgery and attempted insurance fraud after submitting a bogus receipt for a $1,609 windshield repair to her insurance company.

Candice Leigh Chapman, 31, was sentenced last week to 45 hours of community service and a deferred sentence.

In June of 2010, Chapman filed a claim saying that she'd had a damaged windshield replaced in her Volkswagen Touareg and had paid for the repair herself. She emailed a copy of a quote from a Seattle auto glass company, with "paid" stamped on the  bottom.

But when her insurer, Farmers, called the glass shop to confirm the bill, the shop said it had never repaired or replaced the windshield. Nor do they use a "paid" stamp. At that point, Farmers turned the investigation over to the state insurance commissioner's Special Investigations Unit.

The unusual wrinkle in this case is what Chapman did for a living: She was an insurance company claims representative at a different insurance company. And her primary job responsibility was handling auto glass claims.
Costs - Reasonableness of Disbursements

Costs - Reasonableness of Disbursements

Hamfler v. 1682787 Ontario Inc., [2011] O.J. No. 6190 (S.C.J.)

This is a useful case with respect to recovery of disbursements for expert reports following a trial. Justice Edwards applied a deep discount on several of the plaintiff's doctors’ and accountant’s fees for reports and trial preparation.

The jury awarded the plaintiff $188,000 in damages. He sought $87,600 in fees and $93,500 in disbursements. The main issue was the reasonableness of the disbursements.

Justice Edwards quoted Justice Borins in Moon v. Sher (2004), 246 D.L.R. (4th) 440 (C.A.) in holding that “a disbursement will be recoverable provided that it is both reasonable, not excessive and has been charged to the client." The following factors should be taken into account in determining reasonableness:

1. Did the evidence of the expert make a contribution to the case, and was it relevant to the issues?
2. Was the evidence of marginal value or was it crucial to the ultimate outcome at trial?
3. Was the cost of the expert or experts disproportionate to the economic value of the issue at risk?
4. Was the evidence of the expert duplicated by other experts called by the same party? Was the report of the expert overkill or did it provide the court with the necessary tools to properly conduct its assessment of a material issue?
(paragraph 17).

- Tara Pollitt
Flood awareness week: How to spot a flood-damaged car

Flood awareness week: How to spot a flood-damaged car

In honor of National Flood Safety Awareness Week, here are some pointers on spotting a flood-damaged car:

-Smell. Particularly here in the rainy Pacific Northwest, it's very hard to dry out a flooded car quickly enough to prevent mold and mildew in the carpets, padding below the carpets, and the upholstery.

-Moisture in odd places inside the car. For example, look for moisture or condensation behind the gauges on the dashboard, a clock, and the display panel of a stereo. (Note: It's fairly common in the Northwest to see water or condensation in exterior lights, like taillights, turn signal lights, etc. in older vehicles. That's not necessarily a sign of flooding. Rain may have just seeped in through the gaskets that are supposed to seal the lights.)

-Check the car's unique Vehicle Identification Number to see if it has been reported as a salvage vehicle. These numbers are typically found on a small metal plate visible through the front windshield at the front of the dashboard. The National Insurance Crime Bureau runs a website where you can check VIN numbers -- up to 5 a day -- for free. (Hint: it's case-sensitive.)

-Dampness, mold, silt, mud or rust in low spots on the vehicle, such as under the spare tire in the trunk, the interior crevices of the trunk behind the wheels or in the glove compartment.

-Interior rust, such as springs under the seats.

-Check the car's oil. Engine oil contaminated with water will often look like chocolate milk.
NAIC survey: Most homeowners have no home inventory (and how to easily make one)

NAIC survey: Most homeowners have no home inventory (and how to easily make one)

The National Association of Insurance Commissioners today released the results of a survey indicating that most Americans don't have a home inventory of their possessions.

The February survey indicated that 59 percent of consumers haven't made a list of what they own. Of those that had, nearly half didn't have receipts. More than a quarter didn't have photos of their property.

Home inventories are a key tool for recovering from a tornado, flood, earthquake or other disaster. They can speed up and dramatically simplify the insurance claims process. They can also help you and your agent decide if you have enough coverage if you have a rare collection or other high-value items. (On average, home contents are reimbursed only up to 50 percent of the home's insured value. In other words, if you're house is insured for $200,000, the maximum contents reimbursement would typically be $100,000.)

Last year, severe weather disasters inflicted more than $43 billion in the United States, according to the NAIC.

How to prepare a home inventory? There are smartphone applications to help. The myHOME Scr.APP.book app lets users capture images, descriptions, bar codes and serial numbers of personal possessions and stores the information electronically for safekeeping. The app organizes information by room and creates a back-up file for email sharing. There's a version for the iPhone and another version for Android phones.

For those without a smart phone, the NAIC offers a downloadable home inventory checklist and tips for effectively cataloguing your possessions.

FDA nears ruling on HIV-prevention pill




By Deena Beasley — An advocacy group concerned about costs and possible health problems related to a drug being considered to help stop the spread of HIV infection to healthy people has asked U.S. regulators to delay or deny its approval.

Los Angeles-based AIDS Healthcare Foundation (AHF) has petitioned the Food and Drug Administration on the grounds that studies have shown that the pill, Truvada, made by Gilead Sciences, is only partially effective in preventing transmission. The drug is already approved to treat people infected with the human immunodeficiency virus that causes AIDS.

Because Truvada must be taken every day, protection from the virus will falter if, as is likely in everyday life, a dose is missed, the AHF said.

"Any approach that relies on adherence for people who don't have a disease is going to fail," AHF President Michael Weinstein said at a press conference on Thursday.

The Fenway Institute, which advocates for lesbian, gay, bisexual and transgender people, and several other HIV organizations are in favor of using antiretroviral medication, along with risk reduction counseling and condoms, to prevent HIV transmission.

A coalition of 25 health organization in January contacted the FDA expressing their support for the Truvada application.

Officials at Gilead declined to comment.
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A decision by the FDA, which granted an expedited review of the company's application, is expected by June 15 and a panel of experts will review the issue in May.

AHF estimates the cost of Truvada for preventing transmission of HIV at $14,000 a year.

Gilead is seeking permission for Truvada -- a combination of its HIV drugs Emtriva, also known as emtricitabine, and Viread, or tenofovir -- to be used as a form of "pre-exposure prophylaxis," often shortened to PrEP.

Results from a PrEP trial involving 4,758 heterosexual Kenyan and Ugandan couples presented this week at the Conference on Retroviruses and Opportunistic Infections found that 82 HIV infections occurred, 17 in patients treated with tenofovir, 13 in patients given Truvada, and 52 among those treated with a placebo.

"People who take PrEP even haphazardly will consider themselves protected" and could well let up on safe-sex measures, such as condoms, said AHF General Counsel Tom Myers.

The AHF said Truvada is associated with kidney problems and that use of the drug by healthy people could cause them to become resistant to it, complicating treatment if they contract HIV.

"Expanding the use of antiretrovirals to include pre-exposure prophylaxis will increase the risk of resistance, which is already a serious problem," British medical journal Lancet said in an editorial last year. "HIV is a rapidly evolving virus and development of resistance creates the need for ever-changing regimens of drugs in various classes."

Scientists are exploring a variety of tactics for using AIDS drug formulations to prevent HIV infection, including long-acting injections, gels and vaginal rings.

"There are very good scientific arguments in favor of treatment as prevention," said Daria Hazuda, vice president for infectious disease discovery at Merck & Co. "It's an issue of timing, cost and do you have the right intervention."

An estimated 1.2 million Americans have HIV, according to the Centers for Disease Control and Prevention.

In preliminary guidelines issued last year, the CDC said only high-risk gay and bisexual men should use a daily AIDS pill to protect themselves from the virus.

Diabetes,statins meds may be available over counter



WASHINGTON — Prescription drugs to treat some of the most common chronic diseases, such as high cholesterol and diabetes, may become available over the counter under a plan being considered by U.S. regulators.

In what would be a major shift in policy if finalized, the Food and Drug Administration is seeking public comment until Friday on a way to make these medications more readily available. It will also have a meeting about the proposal at the end of March.

The goal is to ensure people take drugs as needed, while still understanding safety issues.

Experts say the unwillingness of people to take certain medications as prescribed has undermined effective treatment of conditions including high blood pressure, raising the cost of healthcare in the United States.

About one in three U.S. adults has high blood pressure, which contributes to heart disease and stroke. The condition cost the United States about $76 billion in 2010, according to the Centers for Disease Control and Prevention.

The FDA said about a third of those with high blood pressure stop taking their medication.

The problem with making these drugs available without a prescription is that many require patients to understand complex aspects of their disease, or exactly when to take a drug to ensure safe use.
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A typical over-the-counter drug generally treats short-term conditions with easily recognized symptoms such as a headache or runny nose, and comes with only a factbox or pamphlet.

But taking cholesterol-lowering drugs called statins requires knowledge about a person's elevated or abnormal levels of fat in the blood, known as lipids.

"We've had several applications already to switch statins to over the counter, and they have failed because consumers can't determine their lipid status," Janet Woodcock, head of the FDA's drugs center, told reporters on Wednesday.

The FDA rejected Merck & Co Inc's bid in 2008 to sell its Mevacor statin without a prescription. FDA advisers said patients would not be able to decide for themselves whether they were appropriate candidates for the medicine.

New technology may help change that calculus.

The FDA said it met with drugmakers to discuss ways to help people understand drug risks when they go to a pharmacy, such as using self-serve kiosks, touchscreen pads or interactive videos.

The FDA emphasized that consideration of any over-the-counter change is still in the initial stages.

The FDA will discuss its proposal at the public meeting before developing further guidance. Drugmakers would then have to apply for each drug to be in a new category.

Copyright 2012 Thomson Reuters. Click for restrictions.

Teen smoking an 'epidemic,' new report finds


CHICAGO — Smoking among America's youth has reached epidemic proportions, starting them on the path to a lifetime of addiction, the U.S. surgeon general's office said in its first report on youth smoking since 1994.

Almost one in five high school-aged teens smokes, down from earlier decades, but the rate of decline has slowed, the report said. Because few high school smokers are able to quit, some 80 percent will continue to smoke as adults, according to the report released on Thursday.
"Today, more than 600,000 middle school students and 3 million high school students smoke. We don't want our children to start something now that they won't be able to change later in life," Surgeon General Dr. Regina Benjamin said in the report, which details the scope, health consequences and influences that lead to youth tobacco use.

An estimated 3,800 kids pick up their first cigarette every day and 9 in 10 current smokers started before the age of 18. Some 99 percent of all first-time tobacco use happens by the age of 26, exposing young people to the long-term health effects of smoking, such as lung cancer and heart disease.

Smoking kills more than 1,200 people every day, and every tobacco-related death is replaced by two new smokers under the age of 25, the report said.

"This report highlights the urgent need to employ proven methods nationwide that prevent young people

from smoking and encourage all smokers to quit, including passage of smoke-free laws, increases in tobacco excise taxes and fully funded tobacco prevention programs," John Seffrin, chief executive officer of the American Cancer Society and the American Cancer Society Cancer Action Network, said in a statement.

The report criticized tobacco companies for targeting youth, saying the industry spends more than $1 million an hour -- over $27 million per day -- in marketing and promoting tobacco products.
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Advertising messages that make smoking appealing to young people are widespread, and advertising for tobacco products is prominently displayed in retail stores and online.

"Targeted marketing encourages more young people to take up this deadly addiction every day," U.S. Department of Health and Human Services Secretary Kathleen Sebelius said in a statement. "This administration is committed to doing everything we can do to prevent our children from using tobacco."

Tobacco companies were quick to defend their practices.

Altria Group, parent of companies Philip Morris USA, U.S. Smokeless Tobacco and John Middleton, said it markets to adults who use to tobacco through age-verified direct communications and in retail stores.

"The vast majority of our marketing expenditures come in the form of price promotions," the company said in a statement.

Altria said its tobacco companies worked to help enact the Family Smoking Prevention and Tobacco Control Act of 2009, noting it was one of the few tobacco companies that did.

But U.S. public health officials said more is needed to curb youth smoking.

"We can and must continue to do more to accelerate the decline in youth tobacco use," Dr. Howard Koh, assistant secretary for health at HHS said in a statement. "Until we end the tobacco epidemic, more young people will become addicted, more people will die and more families will be devastated by the suffering and loss of loved ones."

The report also recommended anti-smoking campaigns and increased restrictions under the U.S. Food and Drug Administration's authority to regulate tobacco as other ways to prevent adolescents and young adults from using tobacco products.

Benjamin did not point fingers on why youth tobacco use continues in the U.S. Instead, she wants to see how the nation as a whole can best address the issue, she said.

"I don't want to focus on blame, I want to focus on prevention," she said. "I want to make sure we're doing everything that we can to prevent kids from ever starting to smoke or use tobacco products."

The full report can be found at www.surgeongeneral.gov
More consumer tips: Company lookup, agent lookup, and where to look up financials

More consumer tips: Company lookup, agent lookup, and where to look up financials

More tips for National Consumer Protection Week:

How to look up an insurer, including complaint history and disciplinary actions

How to look up an agent, insurance agency, or broker, including complaints and discipline

And how to find the company financial statements that show how your insurance company is doing.

We're the insurance regulator for the state of Washington. Not in Washington? Here's a map with links and contact info for every state's insurance regulator.
Consumer tips: How to look up complaints, available health plans and rate hikes

Consumer tips: How to look up complaints, available health plans and rate hikes

More tips for National Consumer Protection Week:

-Look up the number of consumer complaints against specific insurance companies

-Buying health coverage on your own? Here's how to find a health plan in your area

-And see if your health plan wants a rate increase.

(We're the state insurance regulator in Washington state. Don't live in Washington? Here's a handy map with links and contact info for your state's insurance regulator.)
Direct Buy Auto Warranty ordered to stop unauthorized insurance sales in WA

Direct Buy Auto Warranty ordered to stop unauthorized insurance sales in WA

For the second time in less than a week, our office is ordering a New York-based company to stop selling unauthorized insurance in Washington state.

This time it's a company called Direct Buy Associates, Inc., although it also does business under several similar names, including Direct Buy Auto Warranty, Direct Buy Warranty, and DirectBuy Warranty. The order also includes AHMT Corp.

Direct Buy Associates and AHMT -- with have adjacent offices on a street in Brooklyn -- do business through websites like directbuyautowarranty.com, directbuywarranty.com and directbuyautowarranty.net. The companies have also listed mailing addresses that include a mailstop in New Jersey, a virtual office in New Jersey, and a European headquarters in Cyprus.

In 2011, we began getting complaints from Washington consumers who had bought plans from these companies. The plans, sold since at least 2009, purported to cover vehicle repairs. The companies sold at least 57 such plans to Washingtonians. At least one Washington consumer who paid the fees monthly was charged international transaction fees from Cyprus.

None of companies or principals named in the order are authorized to transact insurance in Washington. Nor are they registered here as service contract providers.

Our order requires the companies to send copies of the order to all their Washington customers, and to report to us all premiums they've collected for business here.

The order also names a number of individuals, including Albert V. Hakim, Michael A Hakim, R.D. Frazier, Jon Braidsworth and Robert Harrington.
Costs in Cases Where There are Multiple Defendants

Costs in Cases Where There are Multiple Defendants

Lawson v. Vierson, 2012 ONCA 25 (C.A.)

How will a court apportion costs where both the plaintiff and a co-defendant fail to accept offers to settle/contribute?

Lawson was in two motor vehicle accidents seven months apart. The actions were consolidated and proceeded to trial. The first defendant, Hart, offered to settle for $300,000. The second defendants, the Viersons, offered to settle or contribute by making a $100,000 payment to Lawson. Lawson’s offer was $1,250,000.

The jury found the injuries suffered were separate and distinct, and made separate damages assessments for each accident. The net amount awarded against the Viersons was $7,926.71 and $344,260.37 against Hart. The trial judge awarded Lawson costs of $482,000 apportioned 35% against the Viersons and 65% against Hart. The Viersons appealed.

At issue was the interplay of the costs consequences of r. 49.10 and r. 49.11. Rule 49.11 provides that where there are multiple defendants “alleged to be jointly or jointly and severally liable to the plaintiff in respect of a claim and rights of contribution or indemnity may exist between the defendants, the costs consequences prescribed by rule 49.10 do not apply to an offer to settle”.

The Court of Appeal held:

[49] In the circumstances of this case, it is significant that the combined Viersens and Hart offers exceeded the Lawsons’ recovery. The reason that the combined total exceeded the Lawsons’ recovery was because of the Viersens offer. When the Viersens offer is viewed in context rather than in isolation, it is therefore apparent that the offer was a genuine and generous offer to settle and, particularly when taken together with the Hart offer, complied with the spirit of rule 49.10. In these circumstances, the Viersens offer is the type of offer that, as contemplated by rule 49.13, ought to be given considerable weight in arriving at a costs award.

[50] Further, the trial judge appears to have discounted the fact the Viersens offer far exceeded the amount of the award made against them. Although the allegation of joint and several liability meant that pursuant to rule 49.11 the presumption of costs consequences in rule 49.10 did not apply, it would not, as the trial judge found, have been “impossible” or “negligent” for Ms. Lawson to have accepted the Viersens offer. The claim of joint and several liability that made the Viersens offer non-compliant with rule 49.11 was not made out at trial. In light of the jury’s award, the Viersens offer can, therefore, only be seen as having been very reasonable. Contrary to the view expressed by the trial judge, it would have been no more impossible or negligent for Ms. Lawson to have accepted the Viersens offer, than for any plaintiff to accept an offer to settle for an amount substantially less than the amount claimed. Given the outcome at trial, an accurate assessment of Ms. Lawson’s claim was that there was no joint and several liability. As a result, accepting the Viersens offer would not have prejudiced the claim against Mr. Hart and, therefore, would have been the correct decision.

Justice Rouleau awarded costs against the Viersons up to the date their offer was served equal to 35% of Lawson’s costs incurred to the date of the offer. The Viersons were entitled to their partial indemnity costs from the date of their offer payable by Hart since their offer was also an offer to contribute.

Although this case may have somewhat unusual circumstances, I suggest that those defending cases where there are multiple defendants should take it into consideration when making offers.

- Tara Pollitt
How to file a complaint against an insurance company

How to file a complaint against an insurance company

Having trouble getting an insurance claim paid? Waiting months?

We can often help. We're the insurance regulator for the state of Washington state, and we field thousands of calls a year from folks having trouble with claims. Last year, we got consumers $8 million in previously-denied or delayed claims.

There are two ways to reach us:

Important note: If you don't live in Washington state, contact your state's insurance regulator. Here's a handy map with contact info.
Self-Insurance Industry Can Learn By Example in the Political Influence Game

Self-Insurance Industry Can Learn By Example in the Political Influence Game

This blog has commented previously about how the self-insurance/alternative risk transfer industry needs to get its act together if it wants to exercise the same amount of political power in Washington, DC as many other industries of comparable size.

If you need to be convinced of this conclusion, you may want to take notice of legislative
developments related to whether broker commissions will be excluded from health insurer medical loss ratio calculations in accordance with the Affordable Care Act.

A few months ago, HHS determined that broker commissions would not be carved out of MLR calculations. This prompted the brokers to ramp up their political efforts in Congress to pass legislation to override the HHS final rule.

To put a finer point on this description, the brokers have been making more political
contributions and showing up in Washington, Dc to press their case with key members of Congress.

As of today, the political action committee sponsored by one of their trade groups is more than five times as large as the PAC supporting the self-insurance/ART industry. Another broker trade group expects to have nearly 1,000 members come to Washington, DC for a dedicated lobbying event.

This activity has produced initial success. The Access to Professional Health Insurance Advisors (H.R. 1206), originally introduced in the House last March, now has nearly 180 co-sponsors. A companion bill (S. 2068) has now been introduced in the Senate and has attracted bipartisan
support.

While it still remains a heavy lift to pass significant legislation in an election year, the brokers have made solid progress by any objective standard. The self-insurance/ART industry could learn by example.

Self-insurers and captive insurance companies have good stories to tell for sure, but that is not enough to have real political influence in Washington, DC.

This blog estimates that about five percent of those individuals active in the self-insurance/ART industry directly support political advocacy efforts that would directly benefit their business
interests. Such political participation rate is certainly much higher among the brokers -- and we have illustrated their return on investment.

Clearly, expectations would be different if the self-insurance/ART industry did not have the necessary financial and human resources to leverage significant political influence.

But it does.
The NAIC's Identity Crisis

The NAIC's Identity Crisis

So just who is the National Association of Insurance Commissioners (NAIC)? Apparently the answer depends on particular circumstances. This has actually been the case for some time,
but more people seem to be paying attention now because of the organization’s “mission creep” at both the state and federal level.

Case in point is a February 28, 2012 letter from Rep. Ed Royce (R-CA) to NAIC president Kevin McCarty and CEO Therese Vaughan requesting clarification of exactly how this collection of insurance regulators is defining themselves.

Rep. Royce’s interest was sparked by recent press reports that the NAIC is re-branding itself
as a “standard –setting” organization rather than a private non-profit organization, as it has previously cited its 501 ( c) (3) status to distance itself from exercising any regulatory authority, thereby enabling the NAIC to sidestep open meeting and Sunshine law requirements.

While there have been grumblings about NAIC’s organizational structure and status for some time, it is now getting more attention largely because of the establishment of the Federal Insurance Office and health care reform implementation requirements, which have more
clearly exposed the NAIC’s activist nature.

So let’s explore the NAIC’s identify crisis a bit.

It is on record stating that “when individual insurance commissioners gather as members
gather as members of the NAIC, they are not considered a governmental or public body, but rather are a private group. As an organization, the NAIC does not have any regulatory
authority.”

Well, I guess the validity of this statement depends on how you define the term authority.
While technically true that the NAIC cannot mandate state compliance with any
“standards” it develops, such authority is effectively exercised indirectly through the organization’s accreditation program.

Another interesting observation is that 501 ( c ) (3) organizations are generally restricted
from engaging in political or lobbying activities. But apparently the NAIC does not feel
confined by the U.S. tax code as it regularly dispatches lobbyists to the U.S. Capitol to influence members of Congress on insurance-related legislation.

They certainly have been engaged in an ongoing effort to kill or neuter legislation designed
to modernize the Liability Risk Retention Act. Their most recent objections include
giving the Federal Insurance Office any oversight responsibility with regard to RRG regulation and the establishment of federal corporate governance standard for RRGs.

In related news, the NAIC represented itself as a “standard setter” on insurance issues in a
recent friend of the course brief to the Maine Supreme Court involving premiums charged for health insurance. As part of its brief, the NAIC said it had the right to participate because ‘through the NAIC, state insurance regulators establish standards and best practices, conduct peer review and coordinate their regulatory oversight.”

Rep. Royce concludes his letter by asking NAIC officials to respond to three specific questions:

1. What is NAIC’s status? Is it a trade association? Is it a formal part of “the national system
of state-based insurance regulation in the U.S..”? If so, why did it (a) testify to Congress,
when asked specifically about its status, that it does not “hold ourselves out as some kind of …national regulatory system”; and (b) insist to NCOIL that is not considered a public body” and “does not have any regulatory authority”?

2. Does NAIC agree that as a self-described “private group,” it may not “regulate in the field
of interstate commerce”?

3. As a 501( c ) ( 3) non-profit corporation, does the NAIC not file a Form 990, a routine financial statement for non-profits, with the Internal Revenue Service (IRS)? If the NAIC has been formally exempted by the IRS from filing this information, please provide written documentation of this exemption, and explain why the NAIC feels it necessary to keep this disclosure from public scrutiny.

We look forward to seeing the NAIC’s response and will report on it accordingly. In the
meantime, this blog can report that there is no record of the NAIC filing 990 reports.
It's National Consumer Protection Week - March 4-10

It's National Consumer Protection Week - March 4-10

Have you ever had your insurance claim denied or maybe you filed a claim and received less than you thought you deserved. Ever have trouble reading an insurance policy? If you're reading this now, you know about the Office of the Insurance Commissioner and the services we provide. But you probably know a handful of people who've never heard of us.

This week (March 4-10) is National Consumer Protection Week. Tell a friend about our consumer services and follow us on Facebook.

More than 500 people a month file complaints with us. Last year alone, we recovered more than $8.5 million for Washington state insurance consumers who had their claims denied or delayed.

Just in last few months we helped:


  • A Redmond consumer get a $29,000 health insurance claim paid

  • A Lake Stevens consumer collect an additional $2,553 on an auto claim

  • A Rochester consumer get a $7,574 refund on their auto warranty

  • A Sammamish consumer get their homeowners policy reinstated
Maybe we can help you! If you or someone you know has an insurance question or complaint, visit http://www.insurance.wa.gov/. We take complaints online and you can track our progress 24 hours a day, seven days a week. Or call our Insurance Consumer Hotline at 1-800-562-6900, Monday-Friday, 8 a.m. -5 p.m.
Kathleen's Pregnant Pause

Kathleen's Pregnant Pause

“I’m not sure that is going to work,” commented House Energy and Commerce Committee Chairman Fred Upton.

Fellow committee member Rep. Phil Gingrey chuckled later as he asked out loud “So, what is she talking about? Here’s the bill, pay it – that’s what they do.”

These pointed comments were prompted in response to testimony delivered by HHS Secretary Kathleen Sebelius during a March 1 committee hearing on the Administration’s evolving policy on health plan contraceptive coverage requirements for religious institutions.

Ms. Sebelius began her testimony by explaining that organizations affiliated with religious institutions would not have to cover contraceptives if they objected on grounds of conscience.
Instead, insurers would be required to offer birth control free of charge to the employees of those organizations.

So what about self-insured religious organizations (of which there are many)?

After pausing to consider the question, Secretary Sebelius replied that the organizations’ third party administrators might be enlisted to provide contraceptive coverage.

Of course, TPAs are not insurance entities and therefore by definition cannot provide “coverage” for anything. Same issue for ASO providers event though they are connected to insurance entities. These are inconvenient facts to be sure.

But not to worry, as Secretary Sebelius reassured everyone that the department would reach out and “have dialogue with folks”before proposing a rule in the near future.

Perhaps there should have been some “folks” in the room when this health care reform plan was hatched in the first place.
New York company ordered to stop selling unauthorized insurance in Washington

New York company ordered to stop selling unauthorized insurance in Washington

Update (June 1, 2012): The order has been rescinded. UCAA participated in an investigation of this program and provided information showing that the company had committed no violations.

Our office today ordered the United Consumer Awareness Association to stop selling unauthorized health insurance in Washington state.

The company, a not-for-profit entity incorporated in Missouri, appears to have its home office in Syosset, New York.

The company, which is not licensed to solicit and sell limited-benefit medical insurance in Washington, nonetheless sold policies to 44 Washingtonians.

The order takes effect immediately. The company has the right to demand a hearing.

HIV-positive man who intentionally infected ‘thousands’ of partners turns himself in



Michigan health officials issue alert, encourage possible victims to get tested immediately

Hundreds of Michigan residents -- and others -- may have been infected with HIV by a man who told police he’d been on a three-year mission to transmit the disease to as many people as he could, MSNBC reports.

Police arrested David Dean Smith, 51, last week after he turned himself in -- and admitted he had unprotected sex with "thousands" of partners with the intention of killing them by infecting them with the virus.

Only two possible victims have yet been identified.

Smith's mission to sicken his lovers likely stretched to other states including anyone he may have seduced via Yahoo! Personals, as he did with the one of two victims who came forward.

"He's charming," the alleged victim, who didn't want to be identified, told 24 Hour News 8. "He's very charming."

Records from Pine Rest Christian Mental Health Services, where Smith had been admitted recently because he was "suicidal," indicated he is "sexually aroused by causing pain to females," according to court documents.

The woman, who was diagnosed with HIV in October 2008, told the TV station that Smith told her there were 3,000 victims including men and women.

"He hits drifters," said the alleged victim. "He hits people who are young. He hits young women, and from what I understand, he hits men too. Those are his targets."

Health officials released an alert to residents of Kent County Michigan that "possibly hundreds have been exposed to HIV," and encouraged possible victims to come forward and be tested.

Kent County Health Department spokesperson Lisa LaPlante said this is the first time they have seen someone deliberately trying to spread HIV to so many people.

"We want to make sure that anyone who may have injected drugs with , who may have had sex with him, does come forward and get tested," LaPlante told the TV station. "We want to make sure that they're not spreading the virus to anyone else."

Before his arrest, Smith reportedly texted the alleged victim: "Turning myself into the law, my life is over. Take care. Always love you."

Smith, currently at Kent County Jail where he is being held in lieu of $100,000 bond, has been charged with two felony counts of failure to disclose HIV status to a sexual partner, a charge carrying a four-year jail sentence and a $5,000 fine.

Smith's attorney, Richard E. Zambon, told MSNBC he is "exploring all options" in his client's defense, and specified "I am concerned about his mental health.

5 surprising things that could make your seasonal allergies worse


Fruits and vegetables, air filters, fresh air, procrastination, and self-medication may be culprits
Allergists in the US reveal five surprising seasonal allergy triggers, including eating certain kinds of fruits and vegetables.

If you suffer from springtime allergies, there are five surprising ways you may be aggravating your suffering -- fruits and vegetables, air filters, fresh air, procrastination, and self-medication.

"People with spring allergies often don't realize how many things can aggravate their allergy symptoms so they just muddle along and hope for an early end to the season," said Myron Zitt, M.D., past president of the American College of Allergy, Asthma and Immunology (ACAAI), in a release last week. "But there's no reason to suffer. A few simple adjustments in habits and treatment can make springtime much more enjoyable."

What not to do if you have seasonal allergies:

1. Eat certain fruits and vegetables - While this rarely makes a "what not to do" list, if you suffer from seasonal allergies, you may also suffer from pollen food allergy syndrome, "a cross-reaction between the similar proteins in certain types of fruits, vegetables (and some nuts) and the allergy-causing pollen," noted the statement. For instance, if you are allergic to birch or alder trees, you might react to celery, apples, or cherries. Grass allergies? Then tomatoes, potatoes, or peaches may bother you. Talk to your allergist.

2. Use the wrong air filter - Studies show inexpensive air conditioning filters and ionic electrostatic room cleaners aren't helpful, and that the ions released in the latter can be irritants. Look to whole-house filtration systems but change the filters regularly.

3. Open your windows - To keep pollen from drifting inside your house and settling into carpet and furniture, keep your windows shut during allergy season. Also, keep your car windows closed, since pollen can settle into car upholstery as well.

4. Procrastinate - If you have a history of seasonal allergies, get a jumpstart on the condition and begin taking your medications before the season gets underway, stated the ACAAI.

5. Self-medicate - Rather than trying to resolve the problem yourself, talk to an allergist, who can help you determine what is triggering your symptoms and suggest the proper treatment plan.


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Bat flu could pose risk to humans Evidence of virus proving not all animal flu had been discovered




Scientists have found evidence of flu in bats, reporting a never-before-seen virus whose risk to humans is unclear.

For The first time, scientists have found evidence of flu in bats, reporting a never-before-seen virus whose risk to humans is unclear.

The surprising discovery of genetic fragments of a flu virus is the first well-documented report of it in the winged mammals. So far, scientists haven't been able to grow it, and it's not clear if — or how well — it spreads.

Flu bugs are common in humans, birds and pigs and have even been seen in dogs, horses, seals and whales, among others. About five years ago, Russian virologists claimed finding flu in bats, but they never offered evidence.

"Most people are fairly convinced we had already discovered flu in all the possible" animals, said Ruben Donis, a Centers for Disease Control and Prevention scientist who co-authored the new study.

Scientists suspect that some bats caught flu centuries ago and that the virus mutated within the bat population into this new variety. Scientists haven't even been able to grow the new virus in chicken eggs or in human cell culture, as they do with more conventional flu strains.

But it still could pose a threat to humans. For example, if it mingled with more common forms of influenza, it could swap genes and mutate into something more dangerous, a scenario at the heart of the global flu epidemic movie "Contagion."

The research was posted online Monday in the journal Proceedings of the National Academy of Sciences.

The CDC has an international outpost in Guatemala, and that's where researchers collected more than 300 bats in 2009 and 2010. The research was mainly focused on rabies, but the scientists also checked specimens for other germs and stumbled upon the new virus. It was in the intestines of little yellow-shouldered bats, said Donis, a veterinarian by training.

These bats eat fruit and insects but don't bite people. Yet it's possible they could leave the virus on produce and a human could get infected by taking a bite.

It's conceivable some people were infected with the virus in the past. Now that scientists know what it looks like, they are looking for it in other bats as well as humans and other animals, said Donis, who heads the Molecular Virology and Vaccines Branch in the CDC's flu division.

At least one expert said CDC researchers need to do more to establish they've actually found a flu virus.

Technically, what the CDC officials found was genetic material of a flu virus. They used a lab technique to find genes for the virus and amplify it.

All they found was a segment of genetic material, said Richard "Mick" Fulton, a bird disease researcher at Michigan State University.

What they should do is draw blood from more bats, try to infect other bats and take other steps to establish that the virus is spreading among the animals, he continued. "In my mind, if you can't grow the virus, how do you know that the virus is there?"

Donis said work is going on to try to infect healthy bats, but noted there are other viruses that were discovered by genetic sequencing but are hard to grow in a lab, including hepatitis C.