Claims And Issues

AUTO LENDER FORCE-PLACED INSURANCE? SHH .... IT'S A SECRET.

A report commissioned by Wells Fargo concluded that Wells Fargo did not always notify customers that Wells placed collateral protection insurance by force when the customers took out auto loans with Wells.  The report said that some on 100,000 such occasions Wells Fargo "violated the disclosure requirements of five states -- Arkansas, Michigan, Mississippi, Tennessee and Washington."  Gretchen Morgenson, "Business Day / Wells Fargo Forced Unwanted Auto Insurance on Borrowers" (New York Times Online posted Thursday, July 27, 2017), also accessible by pasting this link into your browser:  https://www.nytimes.com/2017/07/27/business/wells-fargo-unwanted-auto-insurance.html.

Wells Fargo took issue with that number.  Wells says that "just" 60,000 of its customers were involved in the failures to disclose the insurance in the five states.  Gretchen Morgenson, "Business Day / Wells Fargo Forced Unwanted Auto Insurance on Borrowers" (New York Times Online posted Thursday, July 27, 2017), at https://www.nytimes.com/2017/07/27/business/wells-fargo-unwanted-auto-insurance.html.

The report also revealed two further things:  (1) that a large number of the Wells Fargo customers who had collateral protection insurance force-placed on them by Wells already had auto insurance, and (2) Wells used to collect "commissions" for force-placing the insurance.  Duplicate insurance and so-called commissions are central issues in lender force-placed insurance practices surrounding residential mortgages.

Dennis Wall is at work on a book about concealed evidence and secret settlements, and how they affect our lives.

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"FOLLOWING FORM" EXPLAINED. CONCISELY.

A "following form" commercial umbrella liability policy provided excess coverage over a primary general liability policy in Ace Am. Ins. Co. v. American Guar. & Liab. Ins. Co., No. 16 Civ. 8773 (JSR), 2017 WL 2840286 (S.D.N.Y. July 2, 2017).

Judge Rakoff concisely explained what a "following form" umbrella policy is:

In other words, the American Guarantee Policy adopted in general the NGM Policy's underlying substantive terms and thus provided the same basic coverage at the excess layer.

Ace Am. Ins. Co. v. American Guar. & Liab. Ins. Co., No. 16 Civ. 8773 (JSR), 2017 WL 2840286, at *2 (S.D.N.Y. July 2, 2017).

This handy reference will be of tremendous potential use to coverage lawyers who have trouble explaining to some judges what a "following form" policy is, and how it is the same as the underlying general liability policy it follows.  (In cases where the issues include why the following form umbrella policy is different from the form it follows, such as not including the duty to defend, more expansive definitions may of course be required, for issues of difference are not addressed in this reference.)

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"FAILURE TO DISCLOSE" EXCLUSION HELD BAR TO DUTY TO DEFEND.

 

In a recent decision, a so-called "Failure to Disclose" exclusion in a liability insurance policy read as follows:

    ¶19 The 2014 Policy contained a “Failure to Disclose” exclusion that barred coverage for “‘bodily injury’ or ‘property damage’ arising out of your failure, intentionally or unintentionally, to disclose information regarding the sale or transfer of real or personal property.” The Underlying Complaint made eight claims against Van Sickle.

Huckins v. United Serv's Auto. Ass'n, ___ Mont. ___, 396 P.3d 121, ¶ 19 at 125, 2017 MT 143 (2017).

The issue before the Court was the carrier's duty to defend under that particular homeowner's policy.  The Court compared the policy to the allegations in the underlining complaint against the insured.  That comparison precluded any duty to defend any of the claims alleged in the underlying case:

Each allegation in the Underlying Complaint is premised upon Van Sickle's alleged failure to provide information regarding the 2011 flood or general flood conditions in the area to Huckins. As such, the exclusion must apply and “there exists an unequivocal demonstration that the claim against an insured does not fall within the insurance policy's coverage.” [Citation omitted.]  Therefore, as to this policy, USAA had no duty to defend Van Sickle.

Huckins v. United Serv's Auto. Ass'n, ___ Mont. ___, 396 P.3d 121, ¶ 20 at 125-26, 2017 MT 143 (2017).

The Court accordingly held that, under that particular homeowner's policy, there was no duty to defend any of the claims alleged in the underlying case.

Comparing unambiguous exclusions to unambiguous allegations.  That is a sure way to decide whether or not there is a duty to defend.

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LIFE INSURANCE AGENTS NOT BOUND BY "ARBITRATION" CLASS ACTION WAIVER.

"Plaintiffs in this action are former insurance agents for defendants New York Life Insurance Company and its related companies (collectively, N.Y. Life), all of which provide a variety of insurance products, including life insurance and annuities.  Plaintiffs brought this putative class action seeking recovery for allegedly illegal wage deductions and violations of overtime and minimum wage laws."  Gold v. New York Life Ins. Co., No. 2430, 2017 WL 3026906 (N.Y. App. Div., 1st Dep't, July 18, 2017).

On July 18, 2017, the Court held that the employees, who happened to be former insurance agents employed by life insurance companies in that case, were just not bound by class action waivers stuck into mandatory arbitration provisions in their employment contracts.

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"FAKE INSURANCE?"

Senator Mitch McConnell has announced that he does not have the votes to bring the latest attempt at Trumpcare to a vote in the Senate, not without the vote of Senator John McCain who must convalesce from sudden eye surgery.  Godspeed John McCain.  Take your time coming back.

When if ever there is a vote on Trumpcare, will this "insurance" provide much coverage?  The current iteration of Senator McConnell's Trumpcare bill, as reported in an Associated Press Copyrighted story published on Sunday, July 16, 2017, reporting the views of legislators, "will, among other things, gut protections for people with pre-existing conditions and kick millions of people off Medicaid."

And see Lenny Bernstein and Paige Winfield Cunningham, "Health & Science / ‘Bare bones’ insurance policies really only work for people who are healthy," (Washington Post Online, posted on Saturday, July 15, 2017) (subscription may be required).

Insurance without coverage is fake insurance.

Sad!

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DUTY TO DEFEND NO EXPERT KILLING GROUND.

Expert testimony for one insurer that another insurer had a duty to defend, rather than the first insurer (the one that hired the expert to testify about it), was stricken as irrelevant in Zurich Am. Ins. Co. v. Amerisure Ins. Co., No. 9:16-CV-81393-MIDDLEBROOKS, 2017 WL 1372858 (S.D. Fla. "signed" Feb. 10, 2017).

Further, expert testimony is simply unnecessary on the duty to defend.  Retaining an expert to testify and lawyers to argue the point is probably a waste of money.  The question of whether there is a duty to defend is clearly reserved for the judge to decide, at least under Florida law.  "Testimony about the allegations in the condo association's complaint may be relevant, but it is not within the province of an expert witness to interpret those allegations. It is the responsibility of the Court, not a witness, to interpret and determine the significance of legal documents."   Zurich Am. Ins. Co. v. Amerisure Ins. Co., No. 9:16-CV-81393-MIDDLEBROOKS, 2017 WL 1372858, at *2  (S.D. Fla. "signed" Feb. 10, 2017).

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ORWELLIAN MEDICAL "NOTICE OF PRIVACY PRACTICES ACKNOWLEDGMENT," MISSING: PRIVACY PRACTICES.

Billing practices by medicalcare providers.  Administering forms without any apparent concern for law.  Are these different things perhaps connected somehow?

Three times in the past ten or eleven months, I have been handed many forms to sign by medical offices before I could get treatment.  

I signed all their forms but I balked at first, and I continue to balk at signing one of their forms until they comply with law, otherwise their practices would make every one of their patients become liars, including me.  This is why.

They hand the patient a "Notice of Privacy Practices Acknowledgment Form."  The form itself is not objectionable; in fact, it would be easy to administer.  But corporate medicalcare providers have not shown a lot of evidence that they know how to administer them.

To be clear, I sign the acknowledgement form once the medicalcare provider shows me their notice of privacy practices.  It really is as easy as that.  Why they choose to make providing medicalcare difficult is a mystery known only to them, although they often blame other people for having to do what they do not do.

Their form -- and I do not where this language comes from, but they obviously pay somebody to write it for them, and I suspect they pay somebody actually to copy the law and then bill them for it -- advises every patient that each patient has a right to see the Privacy Practices and that by signing this form, the patient acknowledges receiving a copy.  The language goes like this:

You have the right to review our notice before signing this form.  Your signature below acknowledges that you have received a copy of the notice of privacy practices.

The actual business practice at work in these examples goes like this instead, however.  They tell you that you have a right to review the notice of privacy practices.  They tell you that by signing their Acknowledgement Form that you are saying that you received a copy of their notice.  Then they do not show you a copy of their notice of privacy practices.

This is not compliance with law.  This is scofflaw.  The purpose is to make money by keeping costs down.  Here's how.

Most people sign the darn acknowledgement form and have done with it.  That means fewer notices printed on paper, and so fewer costs to pay for  printing multiple copies.  There is probably a notice sitting around in every medical office or the hospital somewhere, but good luck finding it.

Every time a medical office makes a patient say that they gave the patient a notice of privacy practices when they didn't, the medical office violates the law.  Every time a patient signs a form saying that the patient received something which they did not in fact receive, it is at least a lie, perhaps worse.

So, here are some other possible insurance coverage implications.  Another one of the medical office forms they require every patient to sign is a form that assigns the patient's rights to government programs that pay for medical care.

This may be why medical care is so expensive.  The problem with medical care may not be in our stars, so to speak, but in the back offices of our corporate medicalcare providers.

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OUR RIGHT, NOT YOUR HANDOUT.

Social Security Old-Age Insurance is insurance.  It is a contract right, just like the rights of every other policyholder under every other contract of insurance.  The people who wrote the Social Security Act deliberately wrote it to protect it as insurance.  E.g., 2 Dennis J. Wall, Litigation and Prevention of Insurer Bad Faith § 9:37, "The Status of Social Security:  What did the people who wrote it think that they were writing when they wrote it" (3d ed. Supp. 2017).

It is not an "entitlement" and it is very far from a handout.  Social Security Old-Age Insurance is a right.  See 2 Dennis J. Wall, Litigation and Prevention of Insurer Bad Faith § 9:38, "Try taking it away:  Social Security as a right" (3d ed. Supp. 2017).

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IS THERE INSURANCE COVERAGE FOR OUR COUNTRY?

"What famous person would you like to get to know on a personal basis, and why?"

I had a hard time with these questions.

Frankly, for a long time I could not think of anyone who is famous in the U.S.A. in 2017 that I would like to get to know on a personal basis.  (I limited my thinking to Americans who are alive today.)

There are some people who have passed away, and many people from the distant and not-so-distant past that I would probably like to get to know, as well as many people from many eras in many countries.  But people who are alive today in the US?  "Most people lead lives of quiet desperation," the observation goes.  That is certainly true about coming up with answers to these questions.

My first answer is sincere, but I will not publish it widely because it may seem a little flip, which I do not mean.

My first answers were that this is the famous person I would like to get to  know on a personal basis, and why:

Bernie Sanders.  Because he has more hair than me.

So, I kept thinking or trying to think about the answers to these questions.  I eventually came up with good answers that are so good that they satisfy even me.  I would like to get to know this person on a personal basis, and this is why:

John Lewis.  Because he has displayed courage at every point in his life so far as I can tell.  And because he has lived the way of nonviolence, which as his life shows so clearly, does not mean backing down but means instead to stand up to injustice and hatred with justice and, well, with love.

So that is the famous person I would like to get to know on a personal basis, and why.

How about you?  What are your answers to these questions?  And, being Irish by descent, I have a question of my own to answer these questions with a question:  Is there insurance coverage for our country?

My answer to my own question circles back to my answers to the other questions:  Yes, and people like John Lewis are the insurance policies that help us get past losses and injuries inflicted by hatred and injustice.

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