Legislature(1997 - 1998)

04/02/1998 01:40 PM Senate L&C

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
                 SB 202 - MOTOR VEHICLE INSURANCE                              
                                                                               
CHAIRMAN LEMAN announced SB 202 to be up for consideration.                    
                                                                               
SENATOR DONLEY, sponsor, said the proposed committee substitute                
made considerable progress.  an insurance company could not                    
terminate a contract with an agent solely because the agent refused            
to perform an unfair settlement practice or report such activities             
to the Division of Insurance.  The next change was because there               
was concern that this would limit confidential communications                  
between attorneys and their insurance companies and a provision was            
added to specifically exempt that type of communication as                     
confidential. Section Four, prejudgement interest, was moved into              
AS 21.36 which regulates unfair insurance trade practices.  Section            
Four, payment of a loss, was also moved into AS 21.36 and clarified            
language that the payment is due 30 days after a loss becomes                  
determinable, so it's clear they are not required to speculate and             
make a payment which they can't determine.  The required telephone             
contact was moved into AS 21.36 also.  Sections Five and 10 of the             
original bill were deleted, because those appear in SB 158.  The               
arbitration award section makes it clear that if the arbitrator                
awards the cost of the arbitration to the insurer, the insurer                 
could deduct the awarded fees from the amount due to the insured,              
giving the insurance companies a way to recoup their costs.                    
                                                                               
The premium for short-term policies has been changed and a new                 
section specifies that policies of less than 30 days can't exceed              
200 percent of the pro-rated premium charge for longer policies.               
The purpose of this was that in 1986 Mandatory Auto Insurance Act,             
a lot of people were concerned they couldn't get insurance for a               
short period of time.  That is why existing statutes require that              
they offer policies for as low as seven days.  This sets out for               
the first time how much premiums can be for all insurance                      
companies.                                                                     
                                                                               
The medical payments have been limited to allow the mandatory offer            
to only occur at the initial time.  Medical claims coverage has                
been deleted because it's covered under Section Four, payment of               
loss claims which has been incorporated in AS 21.36.                           
                                                                               
SENATOR DONLEY said he supported the committee substitute.                     
                                                                               
Number 491                                                                     
                                                                               
SENATOR MILLER moved to adopt the CS to SB 202.  There were no                 
objections and it was so ordered.                                              
                                                                               
MS. TRISHA CONNORS, National Association of Independent Insurers,              
Des Plaines, Illinois said her organization represents 49 percent              
of the property/casualty market in the State of Alaska.  She said              
they are still opposed to CSSB 202.  Their main concern is with the            
payment of claims required within 30 days which places insurers in             
an untenable position.  She didn't see the problem that it was                 
trying to address other than to provide for another lawsuit for                
trial lawyers to collect contingency fees on, because one of the               
penalties is a bad faith lawsuit and to erase the agreed upon                  
policy limits on the underlying policy.  She said their claims                 
adjusters for most all of their member companies are encouraged                
and, in some cases, compensated for settling claims faster.                    
Performance reviews are based on whether and how many files they               
can close in a year.                                                           
                                                                               
Under this bill if they get a claim they are going to have to                  
decide immediately if they have the time to order the records which            
takes more than 30 days to receive and analyze them and negotiate              
based on what they think is due or not due or pay right away which             
could encourage fraud, because anything could be put forward as                
their medical claim and companies would pay to save themselves from            
the prospect of a second lawsuit and the penalties.  There is                  
nothing  to give them a way to fully analyze a claim and pay it as             
they see fit.  Surely, all this would do would be to raise costs.              
                                                                               
Number 533                                                                     
                                                                               
MR. JOHN GEORGE, National Association of Independent Insurers, said            
it is appropriate that an insurance company pay every nickel that              
they should pay, but not pay any more.  We all pay higher premiums             
if an insurance company pays out excessive claims, so they need to             
give insurance companies an adequate time to determine what a fair             
amount is.  He knows that people are concerned about the premiums              
they pay, so while they are trying to provide protection for a                 
person who has a claim, they also have to think about providing                
protection for everyone else who is paying an insurance premium.               
                                                                               
The required 800 number applies to insurers, but he recalls that               
the definition of insurer in the Insurance Code includes agents and            
brokers.  Therefore, every insurance agent in the State would also             
have to have an 800 number.                                                    
                                                                               
The law clearly says that rates for short-term policies should be              
adequate, not excessive, and not unfairly discriminatory.  By                  
definition, that means they need to charge the premium, the cost of            
issuing the policy, and an appropriate amount for the risk of the              
time period the policy covers.  Two hundred percent may or may not             
be right.  It costs a fair amount to issue a policy by the time                
paperwork is done.  He ended by commending the work that Senator               
Donley had done on meeting his concerns so far.                                
                                                                               
Number 570                                                                     
                                                                               
SENATOR HOFFMAN asked on page 2, lines 26 - 28 if he needed more               
time than 30 days and asked how much.                                          
                                                                               
MR. GEORGE answered that he didn't know if there was a magic date,             
but it could take maybe six months to get repairs done.  Insurance             
companies should be held to a standard, but not a specific number              
of days.  In any case, the director of the Division can say it's               
been an unreasonable time and level penalties.                                 
                                                                               
TAPE 98-19, SIDE B                                                             
                                                                               
MR. MIKE SCHNEIDER said he is an attorney in Anchorage.  He said               
when their constituents pay insurance premiums, they are not making            
donations to the insurance industry, but expect something for their            
premium.  They expect what they have been promised which is prompt             
and fair resolution of their claims.  His comments are premised on             
the notion that attorneys, doctors, and health care providers                  
generally do not work for free.  A sum of $5,000 can easily be                 
exceeded in a fairly minor injury setting, but is a lot of money to            
most of their constituents.                                                    
                                                                               
Medical coverage is supposed to pay reasonable medical bills; it               
doesn't matter who is at fault.  The way it works now is that a                
constituent is in an auto accident of some kind, they go to their              
doctor, follow his instructions, and submit their medical bills.               
Their carrier may pay those bills or not.  The time for payment of             
these bills is in the hands of the carrier completely.  If they                
want to request records until hell freezes over, they can do that.             
In the meantime, the doctor, who has a right to be paid, isn't                 
being paid.  The constituent is risking damage to his credit                   
reputation as well as not getting needed treatment because the                 
insurance coverage is looking more theoretical by the minute.  At              
some point, there is a letter from an adjuster who says that they              
have done a records review and don't know if all the stuff is                  
related and want the constituent to appear sometime in the future              
at an "independent" medical evaluation.  Under the terms of the                
policy, the constituent has to show up and this all takes time.                
They have the examination and then wait a period of time for the               
results of the examination which might say that the treatment was              
not all warranted and the whole bill shouldn't be paid.                        
                                                                               
In the typical medical payments insurance contract, there is an                
arbitration provision which typically takes three lawyers.  The                
constituent needs a personal lawyer.  If the lawyer charges him by             
the hour, it's one more bill they can't pay.  If the lawyer charges            
a contingency fee and wins, he solves a part of their problem, but             
the doctor wants all the bill paid, not just 75 percent.  These                
arbitrations are evidentiary proceedings that require the physician            
to appear and provide testimony.  So someone with a $5,000 problem             
can't afford to resolve it, even if they win.                                  
                                                                               
MR. SCHNEIDER said this bill would make the insurance industry put             
its money where its mouth is.  He referenced Ms. Connor's letter               
for the flavor of the NAII's position which said, "As above, these             
provisions simply make an insurers investigation of fraud too                  
expensive."  He said when an insurance company accuses its                     
constituents of fraud and is ultimately able to prove it, nothing              
harms the industry in any way.  On the other hand, when the                    
constituents are accused of fraud and the accusation is, itself,               
nothing more than a fraudulent effort to deprive the constituents              
of what they are entitled to, the insurance industry should pay the            
price of this sort of outrageous conduct.  This bill does nothing              
more than make the industry bear the burdens of its own sins.                  
                                                                               
Number 590                                                                     
                                                                               
MR. MICHAEL LESSMEIER, State Farm Insurance, said they have about              
31 percent of the automobile insurance market in the State of                  
Alaska.  Last year they gave back to policy holders in the State               
$6.6 million and reduced automobile insurance premiums.  One of the            
challenges they have is making insurance affordable.  This bill, as            
written, would be an absolute disaster for their policy holders                
because it creates a new cause of action of third-party bad faith              
liability.  When it has been created in other states, claim costs              
have exploded.  He used the example of what happened in California             
in 1978 and 1979 when they created a cause of action for third                 
party bad faith.  For the 10 years following that, until they took             
it away, the average automobile liability premium claim costs just             
about tripled.  This is their primary objection to this bill.                  
                                                                               
Number 472                                                                     
                                                                               
MR. LESSMEIER said they remain adamantly opposed to the termination            
provision saying their contracts with their agents have been a very            
successful way of doing business and didn't see any reason to                  
change that.  The prejudgement interest also still concerns them               
because it's not clear whether it runs on the policy or some                   
projected verdict.  They have a concern about changing the                     
arbitration provisions because the power of an arbitrator to award             
his costs is within his discretion right now.  The premium for                 
short-term policies, when they are artificially limited, end up                
being subsidized by another sector of the market which isn't fair.             
                                                                               
                                                                               
The real concern has to do with the payment provisions.  There are             
two reasons why claims are not paid: one is that there is a lack of            
available information.  This bill says an insurer has to pay claims            
within a certain amount of time, but places no corresponding duty              
on the other party to provide the information that is necessary to             
evaluate that claim.  He guaranteed that in almost every instance,             
there will be litigation over the claim payment provisions.  It is             
unfair because the insured needs to have incentive to provide                  
information and there is no incentive under this bill. The second              
problem is that the obligations in this bill are on one side and               
not the other.  They spent 10 years dealing with tort reform before            
this legislature and one of the most important parts of that                   
package was the "offer of judgement" provision which says both                 
sides to litigation ought to be treated equally.  This bill changes            
that provision and makes it a one-way street which isn't fair.  He             
urged that they not revisit something on which they spent so much              
time and effort working out a compromise that was fair to all                  
concerned.                                                                     
                                                                               
Regarding Mr. Schneider's comments, he has been practicing in this             
state for 19 years and had never seen an insurer dispute a $5,000              
medical payments claim.  He has never seen an insurer request an               
independent medical evaluation for a $5,000 claim.  When there are             
disputes over those payments, most of the time it has to be a                  
significant dispute before someone is going to spend the time and              
money necessary to create that dispute on both sides.                          
                                                                               
He pointed out that we already have an Unfair Claims Settlement                
Practices Act in AS 21.36.125.  There are extensive regulations                
that were promulgated by the Division of Insurance that deal with              
that and if the insurance company does not comply, they can be                 
penalized.                                                                     
                                                                               
Number 413                                                                     
                                                                               
MS. MARIANNE BURKE, Director, Division of Insurance, thanked                   
Senator Donley for accepting her help in making sure this                      
legislation meshed with other provisions.  She suggested a three               
word addition to page 2, line 15, under prejudgement interest.  It             
is her understanding that the sponsor intended this to apply not               
only to first party, but to third parties as well.  So she                     
suggested making that sentence read: "Prejudgement interest due an             
insured or third party from an insurer as a result of a claim                  
covered under..."  She said these are actual complaints filed by               
Alaskan consumers.                                                             
                                                                               
MR. JOHN FERENCE, Staff, Division of Insurance, said in the most               
recent 12-month period, they have received approximately 467                   
complaints involving the handling of claims.  Of those,                        
approximately 60 percent are legitimately justified and 75 percent             
of those involve unreasonable delays in claim payments.                        
                                                                               
CHAIRMAN LEMAN said he appreciated Ms. Burke's support in crafting             
SB 283, but then Mr. Jeff Bush testified on the Administration's               
position which was different from hers.  He testified that they did            
not want to take up another tort reform bill this year, and yet the            
Committee hears that SB 202 is a retrenching of some tort reform               
efforts made last year.  He asked if she saw the two positions                 
being inconsistent.                                                            
                                                                               
MS. BURKE answered that she hadn't considered that question.  She              
explained that this bill has many sections that are not in any way             
tort reform related.  They are provisions that address specific                
needs and addresses them appropriately.  She has concerns about                
whether or not the payment time frames will work in all cases, but             
she also has evidence that there are unreasonable delays in claims             
payments.  She said she is not an expert in tort reform.                       
                                                                               
SENATOR HOFFMAN asked if she had any problem with the 30 days on               
page 2, lines 26 and 28.                                                       
                                                                               
MS. BURKE answered that in most cases she thought it would be quite            
workable and she strongly supported the prompt settlement of                   
claims.  She felt this section was much fairer in that it does                 
recognize there will be a period of time necessary to accumulate               
all of the data.  The one area where that might be troublesome                 
might be where there are multiple claims that might exceed policy              
limits.  She didn't have an answer for the multiple claims                     
situation.                                                                     
                                                                               
CHAIRMAN LEMAN said he wanted there to be some flexibility, but                
having 30 days as a target was o.k.  He asked if she had language              
they could insert that would convey that.                                      
                                                                               
MS. BURKE answered that she felt language saying after it's                    
determinable will handle the situation of parts coming in.                     
                                                                               
Number 303                                                                     
                                                                               
SENATOR DONLEY said he thought the determinable trigger takes those            
kind of factors into account.  He said he discussed Section Four,              
the prejudgement interest, with his attorneys and they said it was             
clearly based on policy limits.  He remains open to additional                 
suggestions about how to make that clearer.                                    
                                                                               
He noted there was some argument that there was no corresponding               
duty to pay a loss.  But there is a duty, he said, obviously all               
insurance contracts include a corresponding duty for the insured               
and, also, since it says reasonably determined, if the insured                 
doesn't come forward with the information to make a reasonable                 
determination, they don't get paid.  There is clearly an incentive             
to provide.                                                                    
                                                                               
He thought this legislation treated both sides equally to the                  
extent that's fair.  He explained when you have one large corporate            
party that's worth billions of dollars holding the money and                   
another single injured party trying to get the money, we can't                 
presuppose these parties are in any way equal in the beginning.  If            
they just hold the money back and don't have reasonable regulations            
on when they should pay it, we can't consider them equal from the              
start.  There needs to be a balance, not just pure equality when               
you are dealing with such disparate economic situations.                       
                                                                               
SENATOR DONLEY agreed with the Director that this bill doesn't deal            
with tort reform and, in fact, it only deals with insurance reform.            
We are just talking about how insurance companies pay their claims,            
not the liability of the parties.  The third-party section only                
triggers if the Director of Insurance finds a violation.                       
                                                                               
He agreed with the Director's suggestion of inserting "or third                
party."                                                                        
                                                                               
Number 251                                                                     
                                                                               
SENATOR MILLER moved to insert "or third party" on page 2, line 15.            
There were no objections and it was so ordered.                                
                                                                               
CHAIRMAN LEMAN commented that he still wasn't comfortable with the             
bill, but he would not stand in the way of reporting it.  He                   
thought there may be unintended consequences and this would have to            
be addressed before it moved from the next committee.                          
                                                                               
SENATOR MILLER said he was concerned, also, but would work with                
Senator Donely to address them in Senate Finance, and moved to pass            
CSSB 202(L&C) from Committee with individual recommendations.                  
There were no objections and it was so ordered.                                

Document Name Date/Time Subjects