Legislature(1997 - 1998)

02/19/1998 01:33 PM Senate L&C

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
         SENATE LABOR AND COMMERCE COMMITTEE                                   
                  February 19, 1988                                            
                      1:33 P.M.                                                
                                                                               
MEMBERS PRESENT                                                                
                                                                               
Senator Loren Leman, Chairman                                                  
Senator Jerry Mackie, Vice Chairman                                            
Senator Tim Kelly                                                              
Senator Mike Miller                                                            
Senator Lyman Hoffman                                                          
                                                                               
MEMBERS ABSENT                                                                 
                                                                               
All Members Present                                                            
                                                                               
COMMITTEE CALENDAR                                                             
                                                                               
SPONSOR SUBSTITUTE FOR SENATE BILL NO. 202                                     
"An Act relating to insurance; amending Rules 79 and 82, Alaska                
Rules of Civil Procedure; and providing for an effective date."                
                                                                               
     - HEARD AND HELD                                                          
                                                                               
SENATE BILL NO. 158                                                            
"An Act relating to motor vehicle liability insurance covering a               
person who has had the person's driver's license revoked."                     
                                                                               
     - MOVED CSSB 158 OUT OF COMMITTEE                                         
                                                                               
SENATE BILL NO. 283                                                            
"An Act relating to noneconomic damages resulting from an                      
automobile accident."                                                          
                                                                               
     - BILL POSTPONED                                                          
                                                                               
PREVIOUS SENATE COMMITTEE ACTION                                               
                                                                               
SB 202 - No previous action to consider.                                       
                                                                               
SB 158 - See Labor and Commerce minutes dated 2/5/98.                          
                                                                               
SB 283 - No previous action to consider.                                       
                                                                               
WITNESS REGISTER                                                               
                                                                               
Senator Dave Donley                                                            
State Capitol Bldg.                                                            
Juneau, AK 99811-1182                                                          
POSITION STATEMENT: Sponsor of SB 202.                                         
                                                                               
Ms. Sarah McNair-Grove, Insurance Analyst                                      
Division of Insurance                                                          
Department of Commerce and Economic Development                                
P.O. Box 110805                                                                
Juneau, AK 99811-0805                                                          
POSITION STATEMENT: Commented on SB 202.                                       
                                                                               
Mr. John George                                                                
National Association of Independent Insurers                                   
3328 Fritz Cove Rd.                                                            
Juneau, AK 99801                                                               
POSITION STATEMENT: Opposed SB 202.                                            
                                                                               
Mr. Michael Lessmeier                                                          
State Farm Insurance                                                           
124 W 5th                                                                      
Juneau, AK 99801                                                               
POSITION STATEMENT: Opposed SB 202.                                            
                                                                               
ACTION NARRATIVE                                                               
                                                                               
TAPE 98-7, SIDE A                                                              
                                                                               
Number 001                                                                     
                                                                               
                 SB 202 - MOTOR VEHICLE INSURANCE                              
                                                                               
CHAIRMAN LEMAN called the Senate Labor and Commerce Committee                  
meeting to order at 1:33 p.m. and announced SB 202 to be up for                
consideration.                                                                 
                                                                               
SENATOR DAVE DONLEY said SB 202 has as its goal to correct some of             
the unfairness that is going on in the current settlement practices            
of the insurance industry in Alaska in the form of reduced claim               
payments.                                                                      
                                                                               
Section #3 prohibits insurers from terminating contracts with an               
insurance producer, agent, broker, or independent adjuster without             
good cause.  It also requires the Director of Insurance to adopt               
regulations to implement and enforce this section.  He said he had             
talked to agents over the summer who told him of feeling threatened            
by some insurers when they stuck up for their clients.  They wanted            
security that they wouldn't be fired unless it was for a legitimate            
reason.                                                                        
                                                                               
SENATOR DONLEY said the insurance industry is the only industry                
that is exempt from the anti-trust law, so it should be regulated              
differently.                                                                   
                                                                               
Section #4 makes it clear that insurance companies cannot limit                
communications between agents and insureds and also people who                 
repair property that is damaged.  There is no good public policy               
reason for a company to tell an agent what it should or should not             
communicate to the insured.  Repair people should be able to give              
estimates, if it's legitimate information, to insureds whether or              
not the repair is covered.  There is no reason a repair person                 
should be intimated into not giving estimates because insurance                
doesn't cover it.                                                              
                                                                               
Section #5 was requested by the Division of Insurance and the                  
Division of Motor Vehicles.  It prohibits an insurance company from            
canceling a policy if an individual in the household has a driver's            
license suspended or revoked for minor consuming or minor in                   
possession of drugs or alcohol.  This section relates to section               
the "Use It, Lost It" bill required high-risk (SR22) insurance when            
a driver's license is administratively revoked for a non-driving               
violation.  The insurance industry has been refusing to insure, or             
in some cases, cancel policies for families unless they purchase               
the high-risk insurance.                                                       
                                                                               
Section #6 prohibits limitations or reductions of prejudgment                  
interest legally due to an insured party, as a result of a claim               
covered under an insurance policy.  This provision would apply even            
if the amount of prejudgment interest exceeded applicable policy               
limits.  Unless prejudgment interest is covered, because insurance             
companies write into the contract that they control the defense of             
the insured, the insurance company can negotiate policy in the                 
settlement and if they subsequently refuse to pay the prejudgement             
interest on that, the person who bought the insurance policy is                
left hanging with the obligation and they didn't get to participate            
in their own defense.                                                          
                                                                               
SENATOR DONLEY said that people don't think they will have a                   
problem like this until it happens to them.  Section #7 is the most            
important part of the legislation.  It changes the way claim                   
practice is conducted in Alaska.  Currently, if an agreement cannot            
be reached between the insured and the insurance company on                    
appropriate compensation, the negotiations can go on for months                
until someone files a lawsuit.  All this time the injured party                
probably receives no compensation at all.  The insurance company               
wants them to agree to their dollar amount before they will pay                
them anything.  He said he didn't think that was right.  The way it            
ought to work is that the parties get together, have a discussion,             
and if they disagree, the insurance company ought to be able to                
ascertain what they think is appropriate compensation at the very              
least and proceed to pay that.   The dispute should be on the                  
difference, so the fight now becomes over a much smaller dollar                
amount and there is no longer the economic black mail hanging over             
the burned-out family or the person in the hospital who needs help             
with medical bills.                                                            
                                                                               
Number 271                                                                     
                                                                               
SENATOR DONLEY said the next section deals with arbitration and in             
some instances, an insurer may require a policy holder to pay the              
costs of arbitration or mediation before the process even begins.              
This type of activity discourages claimants from pursuing a fair               
settlement, especially when the amount at issue is less than the               
cost of arbitration.  This section prohibits this practice and                 
affords insured motorists a fair opportunity to pursue equitable               
claims.                                                                        
                                                                               
Section #9 intends to set out premium limits for what insurance                
companies can charge for premiums.  He said that some insurance                
companies have been violating existing law for some time by not                
offering the mandatory seven-day policies.  The fact that a law                
exists on this issue shows that it is problematic.  This section               
establishes a policy amount so that when insurance companies start             
to follow the law, they will have a reasonable policy amount.                  
                                                                               
The medical claims section is the same as the property claims                  
section saying the insurance company should go ahead and pay what              
they can agree on right away and then negotiate the rest.  There is            
also a requirement for the insurance company to have a local or                
toll-free telephone number, if the insurer sells automobile                    
insurance in this State.                                                       
                                                                               
SENATOR LEMAN said that three agents of State Farm oppose this                 
legislation because they don't want the State interfering with                 
their contractual relationship with the company.  He asked what                
Senator Donley thought about that.                                             
                                                                               
SENATOR DONLEY responded that he thought there are a lot of                    
different feelings among independent insurance agents and agents               
who work for specific companies.  He thought there was tremendous              
pressure from the companies on agents to toe the line.  However, he            
thought that some agents are happy with their relationships.  He               
didn't see why a company would be unhappy with a due cause                     
provision.  He didn't see how it would interfere with a private                
contract other than that this industry is exempt from anti-trust               
laws and traditionally they get regulated differently than other               
private industries.                                                            
                                                                               
Number 372                                                                     
                                                                               
SENATOR MACKIE said he feels reluctant to have government interfere            
with private enterprise.  He asked if there were circumstances                 
where an independent agent agreed to pay legitimate claims, and had            
been intimidated by an insurance company.                                      
                                                                               
SENATOR DONLEY said they certainly shouldn't be afraid and this                
bill is intended to make sure they are not afraid.  Agents should              
legitimately be representing their clients.  He informed the                   
committee that the State of Alaska already interferes with this                
industry's private contracts in that they are the only people in               
Alaska who are forbidden by statute to discount their services.  If            
they were allowed to discount contracts, the public would be hurt              
because agents wouldn't be able to provide the level of service                
they do under the current scheme.  He, personally, would be happy              
to trade their statutory protection from fee discounting for this              
provision any day.  He would like to see a free market.  He said               
the agents are given a guaranteed rate of return and the public                
needs some protection.                                                         
                                                                               
Number 400                                                                     
                                                                               
MS. SARAH MCNAIR-GROVE, Insurance Analyst, Division of Insurance,              
said the Division's first concern is in section #3.  It's been the             
historical position of the Division that it doesn't interfere with             
the contract between the agents and the insurer and this is viewed             
as interference in contracting.  The Division requires that there              
is a contract, but not the provisions it must contain.  When the               
insurer cancels a contract with an agent, it has to give the agent             
a reason for that termination.  If it's for cause, the Division                
investigates to make sure it is in compliance with statutes.                   
                                                                               
SENATOR MACKIE asked if they are required to investigate                       
terminations for cause.                                                        
                                                                               
MS. GROVE answered that is correct.  They write regulations that               
determine what good cause is and their role is to see that insurers            
comply with the statute.                                                       
                                                                               
CHAIRMAN LEMAN asked what they do.                                             
                                                                               
MS. GROVE answered that if there is a termination which is against             
current statutes, the Division does an investigation.  If it's an              
illegal action, they take appropriate action.  If it's not illegal,            
there's nothing they can do about it.  She said it seems that the              
scope of this legislation is a little broad and she didn't think               
that was the intent.  It does include another person representing              
an insurer and insured which could be someone like an attorney.                
                                                                               
CHAIRMAN LEMAN asked her to submit language that would clarify                 
that.                                                                          
                                                                               
MS. GROVE said section #6 on prejudgement interest is placed in                
chapter 42 which in the insurance title deals with policy                      
provisions and only with admitted insurers.  A more appropriate                
place is to put this in chapter 36 which deals with trade                      
practices, because it would apply to non-admitted insurers as well.            
For personal autos it's not too big of a problem, but there is no              
limitation here so there may be more of a problem with commercial              
policies.  They assume the intent is to have the prejudgement paid             
in addition to the policy, but that's not clear as it is written.              
They are not sure how the prejudgement interest would be                       
calculated.  Would it be calculated on the total amount of the                 
judgement or only on the policy?                                               
                                                                               
Regarding section #7 they already have regulations in place that               
provide time frames for insurers to respond and pay fines, and so              
some of this is redundant.  It also seems like there are conflicts             
between section (b) and (c).  (b) says if you can't reasonably                 
determine what a loss is, when that point in time comes that you               
can determine the value, you have 15 days to pay it, but (c) says              
within 30 days after you receive notice of a claim, you have to pay            
it.  So the 30 days could be before you know what the value of the             
loss is and it's hard to get someone to pay something if they don't            
know what the value is specifically.  They have the same question              
with section (d) when there are legitimate coverage disputes with              
the penalties that would be required.                                          
                                                                               
Number 485                                                                     
                                                                               
SENATOR HOFFMAN said he had a constituent who had a fire in 1996               
and they have been fighting with the insurance company ever since.             
He asked what he could do to expedite the process under current                
law.                                                                           
                                                                               
MS. GROVE answered that the regulation requires undisputed amounts             
to be paid within 30 days.  If he thinks something is wrong, he can            
contact her Division and they will help in any way they can to get             
things moving.                                                                 
                                                                               
SENATOR HOFFMAN said he hired a private adjuster as well, and even             
with him the claim hasn't been finalized.                                      
                                                                               
MS. GROVE explained that the regulation also specifies that once a             
claim has gone into another forum, you deal with the time frames in            
that forum.  She said they have no objection to section #8,                    
arbitration fees, although it is unclear what would happen if the              
arbitrator asked the insured to pay some of the fees and the                   
insured was unable to do so.                                                   
                                                                               
She explained in section #9, putting in a specific number like the             
200 percent limit tends to become the only figure people use, and              
she suggested using another way to accomplish it.                              
                                                                               
CHAIRMAN LEMAN said he thought this meant that we would no longer              
have the 0 - 7 day policy.  It could be for any number of days.                
                                                                               
SENATOR DONLEY explained that the seven days hasn't worked, because            
insurance companies just aren't offering it.  He hoped to give them            
an option to go from seven to 30 days.                                         
                                                                               
Finally, she mentioned section #12, medical payments, and suggested            
it be structured more along the line of the uninsured/underinsured             
motorist coverage, because now it's in Title 28 which is the                   
Division of Motor Vehicles and insurers are regulated under Title              
21.                                                                            
                                                                               
Number 533                                                                     
                                                                               
SENATOR MACKIE asked if these sections were clarified, would the               
Division support the bill.                                                     
                                                                               
MS. GROVE answered that they have no position except for section               
                                                                               
SENATOR MACKIE said it would help him to know where the Department             
is coming from on some of these issues rather than not having a                
position.                                                                      
                                                                               
MR. JOHN GEORGE, National Association of Independent Insurers,                 
opposed SB 202.  He said it is absolutely true that the insurance              
industry is exempted from anti-trust laws, but for the limited                 
purpose of collecting data.  Insurance rates are based on large                
numbers, he explained, and rate making is the only reason they are             
exempted from anti-trust laws.  He said that all rates are subject             
to approval by the regulator.  The agent's contract with an                    
insurance company is a different kind of product and it would be               
the same as the State interfering with any other employee/employer             
relationship.                                                                  
                                                                               
TAPE 98-7, SIDE B                                                              
                                                                               
He said some companies will quote a policy to an agent at three                
different commission levels.  They do have problems with the                   
requirement that the claimant has to be paid within 30 days,                   
because a lot of them just aren't ready to be paid then.  Some                 
claims may involve fraud, and so they may need more time to                    
investigate.  They have an obligation to their other policy holders            
to not be too quick to pay for things they think are too                       
questionable.                                                                  
                                                                               
MR. GEORGE said that there is some question whether the toll free              
phone numbers applies only to insurance companies or to agents,                
brokers, or possibly, adjusters.  He added that he isn't aware of              
any other industry that's required to have an 800 number.  A hotel             
has one, because it's to their competitive advantage to have it.               
                                                                               
MR. MICHAEL LESSMEIER, State Farm Insurance, said one of the                   
biggest challenges in his industry is affordability. Liability                 
insurance is a fact of life in Alaska and it has to be affordable.             
You have to look at the problem and see if it's so widespread that             
it justifies legislative action on one hand and then find out the              
cost and benefit of the solution being proposed on the other.                  
State Farm just finished returning to Alaska policy holders $6.6               
million.  Legislation like this would change that figure.                      
                                                                               
State Farm doesn't think this legislation is necessary and it would            
also be expensive and intrusive.  He said that State Farm has a                
relationship with 32 agents in Alaska and for more than 50 years               
their  relationship has been set by contracts which provide for                
termination for due cause.  The relationships are built on trust               
and sustained by trust.  These have been good relationships.                   
Fourteen of those have been State Farm agents for more than 20                 
years, 21 of them have been State Farm agents for more than 15                 
years, and 27 of the 32 have been State Farm agents for more than              
10 years.  There have been only three terminations in the last nine            
years.  He said they are not aware of a problem in the relationship            
between agents and insurers in Alaska.  To say someone else will be            
the arbiter of their trust destroys the basis for the relationship.            
State Farm strongly opposes that provision.  He asked who it is                
supposed to protect and what is it supposed to protect them from.              
                                                                               
                                                                               
Another concern he raised is that this legislation creates a new               
private cause of action in Alaska that presently doesn't exist.  It            
will occur on a regular basis and he referred to the requirement to            
pay a claim that is reasonably determinable within seven days.  In             
almost every case where that is going to be an issue, there will be            
a secondary lawsuit for the kinds of increased penalties and                   
damages that this legislation creates.                                         
                                                                               
This bill also creates a bad faith cause of action and in those                
states that have had that, the cost of insurance has gone up                   
dramatically.  This bill also creates mandatory offers of medical              
payment coverage and he again asked what the need was since these              
coverages are widely available today.  He hadn't heard any                     
justification for yet another mailing and he asked what the limits             
were supposed to be.  These are the kinds of things that lead to               
litigation.                                                                    
                                                                               
Number 448                                                                     
                                                                               
SENATOR MACKIE asked him to expand on why this would cost the                  
consumer more money.                                                           
                                                                               
MR. LESSMEIER explained that it creates a new cause of action that             
would be largely common cause of action.  There will be great                  
pressure on insurers to not dispute claims that they should be                 
disputing.  There's a cause of action for reasonable actual                    
attorney's fees, interest, and penalties added here; it isn't in               
the law right now.  There is the potential for bad faith claims                
practices against the insurer which they presently don't have                  
either.  They currently have bad faith on the part of a first                  
party, but not a third party.  This has been demonstrated in other             
states, like California and Arkansas, to be expensive.                         
                                                                               
He said in the tort reform that passed last year is an offer of                
judgement provision that works both ways.  It says if you have to              
come to court and enter a [indisc] judgement within very strict                
time frames and you lose, you will have to pay a certain percentage            
of the other side's attorney fees.  If you enter it early, you                 
might have to pay as much as 75 percent which provides an incentive            
for both parties to fairly evaluate their claims.  When you create             
a new cause of action like this that ultimately leads to                       
litigation, that's where the cost will occur.                                  
                                                                               
MR. JOE FLOOD, a consumer who suffered a recent loss, said there is            
also an increased cost factor that the consumer now ends up paying.            
He explained that last April 25 he suffered a loss here in Juneau              
and to this date it hasn't been settled and it won't be settled.               
He has talked to a number of other business people around Alaska               
with similar circumstances who are afraid to come to people like               
legislators, because they are afraid the insurance companies won't             
pay.  They have suffered major losses and have been "beat up on" by            
the adjusters, not the agents, who demand terribly unreasonable                
things.  He explained that he had to supply his insurance company              
with over 3,500 documents and they still want more.  It (insurance             
company) has gone to his bank, his accountants, and his attorneys              
and duplicated his efforts.  It turns around and gives all the                 
paperwork to an accounting firm in Seattle and charge that to him.             
He said if it wasn't for the local banks, he would have gone                   
bankrupt.  The insurance company asked him if he had gone bankrupt,            
yet.  "They want you up against the ropes so you will end up                   
settling for what they want to offer," he said.  "It's unfair to               
the consumer and something should be done about it, especially                 
section #7 in this bill."                                                      
                                                                               
CHAIRMAN LEMAN said testimony from insurance people has indicated              
that some of the time limits are already in place by regulation.               
However, it's possible some of the time limits don't apply when you            
get into litigation.                                                           
                                                                               
MR. FLOOD said HE had a time line of when HE had to come up with               
his proof of loss.  The insurance company doesn't have a time line.            
He has business interruption insurance, but they don't pay you                 
while you are down.  They encourage you to get open as soon as you             
can and then pay you for the down time and negotiate that down.                
                                                                               
SENATOR MACKIE said he wasn't interested in the personal details of            
his case, but he wanted to know if the insurance company he was                
dealing with ever indicated to him specifically what it was                    
disputing in terms of the coverage he assumed he had.                          
                                                                               
MR. FLOOD answered no.                                                         
                                                                               
SENATOR MACKIE asked him if he went to the Division of Insurance               
and ask it for help and what was its response.                                 
                                                                               
MR. FLOOD replied that he did go to the Division of Insurance and              
they are willing to help, but if you hire an attorney, they can't              
get involved and that's where he is.  His fire was first called                
spontaneous combustion and State Farm sent a claim adjuster                    
specialist down from Anchorage who brought up a fireman from                   
Seattle and they both suggested it was arson.  There have been a               
couple of other arson fires in Juneau and the injured parties have             
had the same experience of fighting to keep their heads above water            
while the insurance company is saying they can't pay anything until            
they finish their investigation.  They keep putting things off and             
he thinks they are attempting to make you settle for something less            
than what you purchased.                                                       
                                                                               
SENATOR HOFFMAN related that his constituent had full coverage                 
replacement cost and the insurance company he was with changed its             
policy January 1, 1997 and insured residences for 125 percent of               
the original cost of the home.  He also hired an independent                   
appraiser and figured what the cost was and the value of his home              
had doubled.  He figured the reason the insurance company is not               
willing to settle is because he hired an independent appraiser and             
the insurance company wants to make sure people in the community               
know he did and has problems because of it.                                    
                                                                               
MR. FLOOD said that the independent adjuster he hired out of                   
Seattle does work all over Alaska and they are currently involved              
with attorneys in California who are filing a class action suit                
because of that.                                                               
                                                                               
Number 274                                                                     
                                                                               
MS. GROVE clarified that when she was talking about regulations                
that are in place, she was referring to the undisputed amount that             
has a time limit.                                                              
                                                                               
SENATOR DONLEY added that what she means is once it's disputed and             
the insurance company doesn't agree to settle for what the injured             
party wants, they're, of course, not going to pay anything.                    
                                                                               
MS. GROVE said according to regulation the undisputed amount must              
be paid.                                                                       
                                                                               
CHAIRMAN LEMAN said he would hold SB 202 until he could get more               
information and then bring it back before the committee.                       
                                                                               
          SB 158 - INSURANCE CHANGES FOR DR. LIC REVOC.                        
                                                                               
CHAIRMAN LEMAN announced SB 158 to be up for consideration.                    
                                                                               
SENATOR MACKIE moved to adopt CSSB 158(L&C).  There were no                    
objections and it was so ordered.                                              
                                                                               
CHAIRMAN LEMAN asked if there was any discussion on this bill.                 
There was no response.                                                         
                                                                               
SENATOR MACKIE moved to pass CSSB 158(L&C) from committee with                 
individual recommendations.                                                    
                                                                               
CHAIRMAN LEMAN asked if Mr. Ambrose, Staff to Senator Taylor,                  
agreed with this version.  He said he did.  There were no other                
objections and it was so ordered.                                              
                                                                               
               SB 283 - AUTOMOBILE CIVIL LIABILITY                             
                                                                               
CHAIRMAN LEMAN announced that SB 283 would be held for another                 
meeting and adjourned the meeting at 3:05 p.m.                                 
                                                                               

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