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a non-profit consumer organization what’sUP summer 2010 in this issue What Not To Say To Your ROADMAP TO PREPAREDNESS Insurance Company… Promoting Readiness for the “Big One” 2 T UP NEWS he Bay Area CBS5 investigative team recently Bach Talk 3 aired an excellent piece featuring UP about New Board Member Jim Jones 3 words you should never use when speaking Thanks to our Sponsors 3 to an insurer about a claim. The piece also aired in ROADMAP TO RECOVERY™ the Tampa, FL area. UP’s Executive Director Amy Well Adjusted: Masood Khan 5 Bach recommended avoiding hot button words such Company Adjusters Hear From UP 5 as “mold” and “flood”. Bay Area doctor Jennifer Book Reviews 5 Brokaw, M.D. also urged consumers to describe New in the UP Library 5 treatment as “medically necessary,” and to avoid Consumers benefit when investigative ADVOCACY AND ACTION using the phrase “experimental.” Watch the entire reporters cover insurance stories Amicus Project Update 6 video online on the right side of the page at Volunteer of the Month: 4 http://tiny.cc/nonowords. Kim Card The Problem Corner 4 Discretionary Clauses Scoop on Health Care Reform CA refuses watered-down NAIC 4 4 Heading For Dinosaur Status climate change survey T hanks to a lot of hard work by policyholder advocates, and a helpful recent ruling by the U.S. Supreme Court, there is a growing list of states that ban discretionary clauses in health and disability policies. These clauses give insurance companies too much power to determine whether or not benefits are owed. UP has been fighting them for many years and we’re making progress. New York Attorney With help from New York attorney Scott Riemer, we recently Scott Riemer filed comments with the New York Insurance Department in support of a proposed regulation that will outlaw discretionary clauses. Texas is also on the brink of adopting a ban, thanks to efforts by Public Insurance Counsel Deeia Beck. This past March, we testified before insurance regulators from all across the country and encouraged them to ban discretionary clauses in their state. Momentum is clearly building. When John Morrison was in office as the Montana Insurance Commission (2000-08), he refused to approve a disability insurance policy form that Standard Insurance Company UP Program Coordinator Emily Cabral …continued on p7 Partnering to Roadmap to Recovery “Graduates” ™ Promote Return Home T Preparedness he MacLellan family (pictured left) recently celebrated the completion of W their rebuilt home with a ribbon-cutting ceremony attended by relatives, friends and e’re excited to report that UP elected officials. The MacLellans lost their is partnering with Red Cross home in the devastating November 2008 chapters in San Bernardino Freeway Complex Fire that destroyed 173 County and in the Bay Area. The goal of the homes in Orange County. partnerships is to encourage property owners Don MacLellan was a regular attendee to be insurance/disaster prepared, and to of UP’s Orange County Roadmap to take advantage of UP’s free tools to inventory Recovery™ program, which included live property and store important documents educational seminars focusing on insurance safely. Our focus in San Bernardino is recovery and other rebuild-related topics. residential wildfire preparedness. Our focus Orange County fire survivors also received a in the Bay Area is commercial and residential Returning to a rebuilt home after 18 months earthquake preparedness. …continued on p7 …continued on p2 ROADMAP TO PREPAREDNESS PROGRAM Increasing insurance literacy and preparedness by sharing lessons learned by disaster survivors. Promoting Readiness for the “Big One” UP’s Executive Director Amy Bach was a featured speaker at a recent meeting of the Community Action Plan for Seismic Safety group in San Francisco. Participants included a representative of Mayor Gavin Newsom’s office, Laurence Kornfield (Dept. of Building Inspection), John Paxton (Real Estate Advisory Services), SPUR (SF Planning and Urban Research) and others. Bach shared UP’s advice to consumers on earthquake insurance, and encouraged the group to write support letters for COGA (see below). She shared what UP has done to promote and increase the discounts/incentives that some insurers are offering to help property owners “harden” their homes and businesses. (“Harden” is lingo for making a structure more disaster-resistant.) No earthquake insurance=slow/no recovery Quake Insurance Rate Relief Clears Hurdle in Congress UP in the News In past issues of What’s UP, we’ve reported on the frightening fact that only a small number of property owners in quake zones are insured for earthquake damage. We’ve also reported on what UP is doing to help make the coverage more affordable. The most promising prospect for making The July 2010 issue of Kiplinger’s Personal earthquake insurance a more viable buy is a federal legislative concept called COGA (Catastrophe Finance magazine offers tips on how to Obligation Guarantee Act). A 2009 UP letter helped convince CA Senator Barbara Boxer to get a better deal on your homeowner’s co-sponsor one of three COGA bills, SB886. Another version, HR2555, recently passed its first policy. It’s always wise to comparison hurdle in Congress (read it here: http://tiny.cc/HR2555). Read more about COGA, and find out shop, and you should let agents know why UP supports it: http://tiny.cc/COGA. that you are doing so, to get the benefits of healthy competition. But be careful— as UP’s Executive Director Amy Bach Partnering to Promote …continued from p1 over the horizon and a heightened awareness of advises, “Agents may underestimate the We are thrilled to announce that United earthquake hazards, this grant comes just at the cost to replace your house if they fear Policyholders was recently awarded a first right time. An enormously loud THANK YOU that they’ll lose your business to a lower- time ever $105,000 grant from the San Diego to the American Red Cross and its donors for priced competitor.” chapter of the American Red Cross. This this important funding. In the Bay Area, Program Coordinator More recent articles featuring UP: funding is specifically earmarked for wildfire preparedness outreach and education in that Emily Cabral continues to expand our Expert Advice On Talking To Insurance county. It will help UP teach thousands of Roadmap to Preparedness outreach and Companies (KDKA, 6/3/10) property owners in and near brush areas how education efforts. Cabral was a featured Is Earthquake Insurance Worth It? to insure to value, and how to use our free speaker on earthquake insurance at a (Houselogic.com, 5/28/10) inventory tools. meeting last month of the Redwood UP Submits Comments on Proposed NYS Regs New hire and marathon enthusiast Kaye Heights Neighborhood Association in the (Long Term Disability Law Blog, 5/7/10) Coates has literally hit the ground running Oakland hills. in San Diego to make every dollar of this UP has recently joined VOAD Tornado victims fear insurers will spin them invaluable grant go to good use. Kaye is now (Volunteering Organizations Active in (Daily Finance, 4/28/10) UP’s SoCal Outreach Coordinator for our Disasters) and Bay Area CAN (Coordinated Is Green Insurance Worth the Price? Roadmap to Preparedness program. Assistance Network.) We continue to reach (New York Times, 3/11/10) She joins Karen Reimus, So Cal Outreach out to other partners such as neighborhood Hurricane Headache (Fox News, 3/5/10) Coordinator for our Roadmap to Recovery™ associations and trade associations. program. With the next wildfire season just Hijacked on home insurance? Let Angie’s List help you save (CBS15, 2/4/10) Help Us Help You Privacy Notice: We’re working hard to make sure your insurance company keeps its United Policyholders respects and promises. Please support our unique and important work by making protects the privacy of those who a tax-deductible contribution today. You can donate via credit card by communicate with and/or support our going to http://www.tinyURL.com/donateUP, or by mailing a check in the organization. We do not sell or share enclosed envelope. our membership or mailing lists. 2 | what’s UP summer 2010 UP NEWS Bach Talk THANKS TO P OUR SPONSORS lain and clear language is the order of the day as we progress through our website and library overhaul. We’re PLATINUM LEvEL: trimming and simplifying the wording of Anderson, Kill & Olick, P.C. our preparedness messaging in the media Charles R. Tutwiler & Associates, Inc. and through the outreach we’re doing in Childress Duffy Goldblatt, Ltd. partnership with the Red Cross, the CEA Consolidated Adjusting, Inc. (California Earthquake Authority), Fire Defusco & Udelman P.L.C. Safe Councils and other partners. DL Law Group UP is part of a team of consumer advocates Goldstein, Gellman, Melbostad, Gibson providing input to President Obama’s & Harris LLP administration and to the NAIC (Nat’l Ass’n The Greenspan Co. / Adjusters of Insurance Commissioners) on the specifics Hurricane season is officially here, and I was International – NorCal, SoCal of implementing health insurance reform on glad to meet new claim experts from Florida Kantor & Kantor LLP a relatively fast track. It’s exciting to see the and Texas at the recent NAPIA (Nat’l Ass’n of The Lesser Law Group progress that’s been made since our team issued Public Insurance Adjusters) annual meeting. Mannion & Lowe recommendations last month in a published Hurricanes are also a reality in New Merlin Law Group report that UP coordinated. You can read the York, where I visited in April with Gene Pillsbury & Levinson, LLP report in our new “What’s UP with Health Anderson (founding partner of Anderson, Quality Claims Management Corp. Care Reform” section at http://tiny.cc/healthpage. Kill and Olick, and the moving force Shernoff, Bidart, Darras & Echevarria LLP We’re anticipating a potentially very bad behind our Amicus Project) and Jon Ver Ploeg & Lumpkin, P.A. wildfire season in the western U.S. due to Wilkofsky (Wilkofsky, Friedman, Karel and brush growth from a rainy winter. New staffer Cummins). In March I spent time discussing GOLD LEvEL: the homeowner’s insurance situation on American Claims Management Services Kaye Coates is proving a huge asset to UP’s Long Island with New York ’s Insurance Law Office of Bennett M. Cohen Roadmap to Preparedness program because Bernheim Law Firm of her high energy, business savvy and personal Superintendant James Wrynn at the NAIC meeting. Availability and affordability of David Shaffer Mortgage and experience in rebuilding after a wildfire. Insurance Services The news from the oil spill is painful but homeowners insurance in coastal areas continues to be a challenge, hence UP’s Doherty Georgeson LLP it’s heartening to know that members of the UP Engstrom, Lipscomb & Lack family are working to make sure that people support for federal COGA (Catastrophe Obligation Guarantee Act) legislation. Friedman Rubin and businesses get fairly compensated for their Law Office of Elliot Glicksman losses. John Nevius of AKO gave a recent talk And, just in case you’re thinking about changing jobs, you may be interested in Leiff Cabraser Heimann & Bernstein, LLP on “Oil in the Gulf--Insurance Coverage and Metropolitan Adjustment Bureau Remediation”, and you can follow issues related this item that ran in the last online issue of What’s UP… Last year State Farm CEO Ed Morrison & Morrison, Inc. to the spill by reading Chip Merlin’s blog: Rutter & Russin www.propertyinsurancecoveragelaw.com. A South Rust, Jr. earned $4,538 PER HOUR ($9.4 million annual salary), Chubb CEO John D. The Stanzler Law Group Florida native, Chip expresses the emotions that locals in particular are feeling, and offers practical Finnegan earned $9,212 PER HOUR ($19.1 SILvER LEvEL advice to businesses on documenting related losses. million). More details at Forbes.com. Adleson, Hess & Kelly, APC AJR Insurance Consultants, Inc Alan Casper, Esq. Bob Rettig Construction and Consulting Finance Expert Jim Jones Joins Brown - O’Haver Public Adjusters Buck, Keenan, Gage, Little & Lindley, LLP UP Board of Directors Daley DeBofsky & Bryant United Policyholders warmly welcomes Jim Jones, a Venture Partner Goodman-Gable-Gould/Adjusters International with Scale Venture Partners in Foster City, CA to our Board of Directors. Gumbiner & Eskridge LLP Jim joined Scale Venture Partners in 2000 and currently sits on the The Howarth Group Board of Directors of 5 private high technology companies. He Kirby & Associates previously served on the board of Monolithic Power Systems (NASDAQ: Metropolitan Adjustment Bureau MPWR). Prior to Scale Venture Partners, Jim held executive roles with The Kristy Law Firm 3Com and National Semiconductor. Jim currently serves on the Board La Scala & Associates Jim Jones of Directors of the Hearing and Speech Center of Northern California, Morgan & Macy Attorneys Limited and previously served on the board of The Learning Center, a non-profit RC Advantage pre-school in Palo Alto, CA. Jim holds a BSEE from the University of Ronald Dean, Esq. California, Davis. He lives in San Francisco with his wife Sarah Jones, The Rossell Law Firm Wilkofsky, Friedman, Karel & Cummins a city planner, and his children, Rachel (11) and Sam (9). Xpera Group summer 2010 what’s UP | 3 The Problem Corner vOLUNTEER SPOTLIGHT: Attorney Kim Card UP serves as a clearinghouse for information and as a networking resource for policyholders A graduate of Stanford University Law School, Kim Card and claim professionals. People contact us practices appellate, consumer and class action law in every day and we do our best to connect them Berkeley, California. Kim is an important part of UP’s with problem-solving resources. Amicus Project. She donates time and expertise reviewing and drafting briefs and advising the organization on matters UP is currently gathering information from of substance and strategy. Kim’s recent work includes policyholders on: writing and advising on amicus briefs for Davis v. Ford • Difficulty complying with Allstate’s 180-day Motor Credit Company, Fairbanks v. Superior Court of property replacement requirement; and California, and Nieto v. Blue Shield. •Rejected claims for fees paid to ServePro or Berkeley attorney Kim Card ServiceMaster for cleanup services If you were recently, or are currently, involved in a dispute with your insurer related to either of these two topics, please contact UP via email at email@example.com or by calling (415) 393-9990. Inside Scoop on Health Care Reform T Allstate’s 180-Day Replacement he official title of the law that’s being referred to Requirement as “Health Care Reform” is the Patient Protection It has been brought to UP’s attention by NY and Affordable Care Act of 2010 (“PPACA”). policyholder attorney Jon Wilkofsky and Some of PPACA’s provisions are on a fast track toward individual consumers that Allstate is unfairly implementation; others will be phased in more gradually. applying its policy language and keeping money Wondering which provisions of the PPACA that rightfully belongs to policyholders who’ve will kick in first? The fast track pieces (“near term” suffered property losses. provisions) are explained in a recently published report The language says the policyholder must entitled “PPACA: Consumer Recommendations for replace damaged or destroyed property within Regulators and Lawmakers,” which was written by a 180 days after they’ve received an Actual Cash group consisting of 21 leading advocacy organizations, Value payment in order to collect the balance including UP. The report has been distributed to of the full Replacement Value they’re entitled National Association of Insurance Commissioners to. Many consumers simply cannot complete leadership and staff, and the Health and Human replacement that quickly, and need more than Services Administration. You can read it here: 180 days. Allstate is applying the same 180-day http://tiny.cc/PPACArpt. Visit our new information page requirement to “Extended Limits” coverage, and on Health Care Reform: http://tiny.cc/healthpage is reportedly refusing to grant time extensions. UP is gathering data on this problem and is pointing consumers in the direction of help to recover monies unfairly withheld. If you have experienced this problem personally or professionally, please email UP CA refuses to “U-turn” on watered down at firstname.lastname@example.org (Put “180-Day Rule” in NAIC climate change survey O subject line of your message). ne of the first projects UP got involved But…the victory was short lived. As ServePro and/or ServiceMaster with after being appointed to represent certain states prepared to launch the survey, UP has been receiving numerous complaints consumers at the National Association others dragged their feet at the behest of from consumers in different states reporting the following scenario: of Insurance Commissioners was helping lobbyists. Then, in the very last hour of a four A home has been damaged by water. break a logjam that was preventing adoption day NAIC meeting this past March, after The insurance company claim adjuster either of a Climate Risk Disclosure Survey. The idea most people had gone home, in what Financial tells the property owner to hire ServePro behind the survey is to require insurers to report Times reporter Paul J. Davies refers to as a and/or ServiceMaster to clean up or dry to regulators (and the public) on the data they “U-turn”, a new “watered down” survey was out the property, OR the adjuster hires the have gathered and the plans they are making adopted. Visit http://tiny.cc/surveyclimate for same company. The homeowner believes that to account for the impact of climate change on the new version of the survey, which is now the insurance company will cover this cost, their operations and their customers. Certain optional instead of mandatory. To read Davies’ because of the recommendation. Then the sectors of the industry had been lobbying full article, register free of charge at insurer denies the claim for the water damage, regulators at the NAIC for years to resist the http://tinyurl.com/daviesUturn. and the homeowner gets stuck with the bill, survey. But, after a lot of work by advocates and Despite the “U turn”, California, under and the company refuses to help them. forward-thinking Commissioners including the leadership of General Counsel Adam If you have experienced this Steve Poizner, (CA) Sean Dilweg (WI), Cole, has already launched the survey and problem personally or professionally, Michael McCraith (IL), Joel Ario (PA), gotten a first round of responses to the please email UP at email@example.com Mike Kreidler (WA) and others, an historic original, stronger version of the survey. (Put “ServePro/ServiceMaster” in vote took place in 2009, and at long last, the Kudos to California’s DOI! subject line of your message). survey was adopted. 4 | what’s UP summer 2010 ROADMAP TO RECOvERY ™ PROGRAM Providing tools and resources for solving insurance problems that arise after an accident, loss, illness or other adverse event. Well Adjusted: Masood Khan, Esq. Book Reviews W Delay Deny Defend: Why Insurance ell Adjusted is a regular column featuring interviews with Companies Don’t Pay Claims And claim help professionals. This month we present an interview What You Can Do About it with Masood Khan, Vice President of The Greenspan By Jay M. Feinman Company/Adjusters International in South San Francisco, California. Rutgers University Law Mr. Khan discusses the downsides of using a contractor or CPA to Professor Jay Feinman negotiate your insurance settlement. To read the full interview, go to builds on the evidence http://tiny.cc/mkhan and revelations in UP: What is the “unauthorized practice of public adjusting”, and From Good Hands to why should it be a concern to the public? Boxing Gloves (David MK: The practice of public adjusting is regulated under the California Berardinelli, Trial Insurance Code Section 15007 et seq. It requires individuals who Masood Khan, VP Guides Press) to expose are going to be adjusting and negotiating the rights and obligations of The Greenspan specific tactics that have of insurance policyholders to be licensed and regulated with a certain Company/Adjusters been implemented by minimum standard of education training and ethics. International insurers to maximize profits and minimize The unauthorized practice of public adjusting occurs when claim payouts. Exploring the history of the an individual acts on behalf of or aids in any manner (emphasis added) an insured for “insurance claim game”, Feinman delves compensation in the negotiation, adjustment and settlement of coverage and claim benefits into corporate consulting firm McKinsey & in a first-party context without being licensed and under the jurisdiction of the Department Company’s work as the alchemists of these of Insurance. If an unlicensed individual engages in such activity they are engaging in the tactics, starting in the 1990s. Despite being unauthorized practice of public adjusting. one of the most heavily regulated industries in …continued on p7 the United States today, Feinman shows how industry leaders have shifted their focus away New in the UP Library from upholding their obligations to customers/ claimants in favor of profit-driven strategies. Claim Dispute Resolution Feinman documents how “delay, deny, In this improved and updated section of the UP help library, we offer a brief defend” has become an industry mantra. explanation of appraisal, arbitration, mediation and litigation, as well as links Feinman’s tips complement United to info and help related to each of these processes. Policyholders’ tips. He suggests ways to http://uphelp.org/claimtips/tip_claimdispute.html choose an insurer with a history of fair claim Rebuilding 101: A Guide to the Reconstruction Process settlement practices, and how to approach a This publication contains six important lessons, including how to decide Ted Bumgardner, claim so your insurer cannot avoid paying you. on the right contractor and avoid liens, and how to negotiate a contract. construction expert To purchase the book, or download a free Author: Ted Bumgardner of Xpera Group (UP Silver Level sponsor), edited and President of chapter, visit www.delaydenydefend.com. by UP staff http://tiny.cc/rebuild101. Xpera Group FAQs: Property Insurance Claims In Your State Our Home, Our This new series of Roadmap to Recovery publications offers general guidance and answers to Passion: A Build-It- questions that people often ask when they are dealing with an insurance company or adjuster Yourself Memoir after a loss. Our goal is to publish specific FAQs for each of the 50 states. Here are the first three: By Elaine McGee FAQs: Property Insurance Claims in Tennessee: Written by UP staff and Denis Rowe of Disaster survivors The Howarth Group http://tiny.cc/TNFAQ often feel inspired to FAQs: Property Insurance Claims in South Carolina: Written by UP staff and Bruce and share their hard-earned knowledge of the Stacey Horowitz of AJR Insurance Consultants, Inc. http://tiny.cc/SCFAQ recovery process. A new memoir by Elaine FAQs: Property Insurance Claims in Alabama: Written by UP staff and Denis Rowe of McGee tells the story of building her home The Howarth Group http://tiny.cc/ALFAQ by hand, along with her husband Henry, when they were newlyweds in 1948. It also recounts the process of reuniting with Company Adjusters Hear From UP their original architect to rebuild after it burned in the 1991 Oakland/Berkeley fire. UP Executive Director Amy Bach was the featured speaker at a recent meeting of Elaine dedicated the book to recent wildfire the Central Coast Claims Association (CCCA) in San Jose, CA. The audience included survivors, and kindly acknowledged the independent and staff adjusters, repair, temporary housing and other professionals recovery help that she got from United involved in claims. Bach talked about issues that arise in the adjustment of large property Policyholders. To buy a copy of Our Home, damage claims. Find out more about CCCA at http://www.centralcoastclaims.org. Our Passion, visit http://tiny.cc/ElaineMcGee. summer 2010 what’s UP | 5 ADvOCACY AND ACTION PROGRAM Fighting for insurance consumers’ legal rights. Amicus Project UPdate D isability insurance attorney Mark precedent-setting insurance cases: DeBofsky delivered good news from http://www.uphelp.org/amicus_briefs.html. the US Supreme Court, where the amicus brief he drafted for UP in Hardt v. SUPREME COURT Reliance Standard Life Insurance Company Hardt, Bridget v. Reliance Standard Life helped bring about a favorable result. To read Insurance Company, (2010) In the Supreme DeBofsky’s article explaining the case in detail, Court of the United States, Case No. 09-448. see http://tiny.cc/Hardtanalysis. Issue: ERISA- fee award. UP argued that A shout-out to under long-standing Supreme Court precedent Arizona attorney David relating to prevailing party status under Abney, who recently fee-shifting statutes, Social Security disability drafted two amicus benefit claimants who win remands are briefs for UP pro bono entitled to recover fees regardless of whether and has asked for they ultimately prevail in securing an award Gene Anderson, the moving force behind his next assignment. of benefits. This brief was written pro bono for UP’s Amicus Project William Passannante United Policyholders by Mark D. DeBofsky. Davis v. Ford Motor Credit Company, (2010) of Anderson Kill & CALIFORNIA California Supreme Court, Case No. S179049, Olick reports on a Abdelhamid v. Fire Insurance Exchange Amicus letter in support of petition to review. policyholder win in the (2010) Cal. Rptr. 3d —, 182 Cal. App. 4th Issue: Standing under the California Mark DeBofsky: “The Supreme Court of Ohio 990, 2010 WL 599329, Case No. C059098 UCL/B&P 17200. What standard should Man” on disability in Pennsylvania General (Cal. App. 3rd Dist. 2010) apply when a consumer (as opposed to a insurance and ERISA Ins. Co. v. Park-Ohio Issue: Policyholders’ Duty of Cooperation. business) brings a claim challenging a violation Industries. In this case, UP weighed in to request depublication of a CA of the Unfair Competition Law, Business and UP had argued in favor of the “all sums” rule Court of Appeal opinion in a case where Farmers Professions Code section 17200, et seq. (“UCL”) in commercial coverage disputes (a policyholder Insurance Exchange denied a fire loss claim was addressed. This brief was prepared pro bono need not sue every single insurer potentially on the grounds that the homeowner had failed for United Policyholders by Kim E. Card, Esq. liable to cover a loss). Ohio’s high court applied to provide sufficient documentation, despite Nieto, Julie v. Blue Shield of California Life & that rule and the “notice prejudice” rule (insurer the fact that the homeowner had provided a Health Insurance Company, (2010) can’t reject a claim as late filed unless the lateness notarized proof of loss form, repair estimates, California Supreme Court, Case No. B214669. caused actual prejudice). UP again thanks the a loss inventory, tax returns, and bank and cell Issue: Post Claims Underwriting: Letter Brouse McDowell firm for drafting our brief. phone records and been examined under oath by Brief in Support of Petition for Review. UP Since 1995, UP has filed more than 300 the insurer’s attorney. UP argued that while the argued that the Court of Appeal decision is amicus briefs advocating for policyholders. inadequacy of this documentation might have inconsistent with all other California authority, Read summaries below from briefs we’ve been proven in a trial on the merits, allowing her which has strongly condemned unlawful post filed this year in the US Supreme Court and claim to be forfeited via summary adjudication claims underwriting. This brief was written in high courts in California, Florida, New on these facts set a dangerous precedent. UP’s pro bono for United Policyholders by Alice J. York, Pennsylvania, Texas and Utah. Visit our letter was written pro bono by Amy Bach, Esq. Wolfson, Esq. and Kim E. Card, Esq. Amicus Project Library to read the full text and David L. Abney, Esq. of the briefs we’ve filed in a wide variety of FLORIDA Cussler v. Crusader Entertainment, LLC (2010), Amelia Island Company v. Amerisure Mutual California Supreme Court, Case No. S181428. Support UP’s Amicus Project Issue: The scope of the covenant of good Insurance Company and Amerisure Insurance Company (2010) United States District Court of Help us level the playing field for faith and fair dealing. UP argued that the Appeals (11th Circuit), Case No. 10-10960-G. consumers in court by supporting Court of Appeal’s reversal of a jury verdict UP’s Amicus Project today. UP is Issue: Whether the negligent installation threatens the most basic expectation of a actively fundraising for its Amicus of nondefective materials and components contracting party—that the other party will not Project so none of our volunteers constitutes covered “property damage” act in bad faith to deprive it of the benefit of its have to go out of pocket to file amicus under the standard CGL policy. UP’s brief bargain. This issue is of particular importance briefs, and so we can more effectively was written pro bono by David K. Miller of advocate for policyholders wherever because insurance contracts routinely grant Broad and Cassel, Keith Hetrick, Esq. of FL needed. Tax-deductible donations discretion to insurance companies, and insureds Home Builders Association, Mark A. Boyle, can be made online at rely on that discretion being exercised in good Sr., Esq. of Boyle & Gentile, PA, and Michael http://tinyurl.com/donateUP, or by check faith. UP’s letter supporting petition for review F. Huber, Esq. of Ver Ploeg & Lumpkin, PA. in the enclosed return envelope. was written by Amy Bach, Esq. 6 | what’s UP summer 2010 NEW YORK UP’s brief was written pro bono by John Graduates Return …continued from p1 Henner v. Gemini Insurance Company (2010) Berringer, Timothy P. Law, Jill N. Averett free copy of UP’s Disaster Recovery Handbook New York Supreme Court, Appellate Division, and John N. Ellison of Reed Smith, LLP. and Household Inventory Guide, as well as a 4th Department. Docket Nos. CA 09-01832 free Disaster Recovery Binder, to aid in their and CA 01-01833. Issue: Notice/Prejudice. UTAH recovery efforts. UP argued that an insurer must show prejudice United States Fidelity and Guarantee Co. vs. UP Outreach Coordinator Karen Reimus due to alleged late notice. UP’s brief was United States Sports Specialty Association (2010) attended the MacLellan ribbon-cutting event written pro bono by John G. Nevius, Esq. and Utah Supreme Court. Case No. 20090657-SC. in person. “Don did an amazing job educating Raymond A. Mascia Jr., Esq. of Anderson Issue: Insurer’s right to reimbursement. UP himself about the insurance recovery process Kill & Olick, PC. Of Counsel: Amy Bach, Esq. briefed the issues of: 1) whether an insurer has and advocating for his family’s rights during a right to reimbursement or restitution against the rebuild. I was thrilled to see him and his PENNSYLvANIA an insured (of amounts paid in settlement) 2) beautiful family back in their rebuilt house.” Hussey Copper, Ltd. v. Arrowood Indemity If such a right does exist, whether an insurer’s During a heartfelt speech at the ribbon-cutting, Company f/k/a Royal Insurance Company payment in excess of a policy’s limit impacts Don generously acknowledged how the help he of America (2010), United States Court of any such right. UP’s brief was written pro bono received from UP positively impacted his ability Appeals for the Third Circuit, Case No. by William G. Passannante, Esq. and Marc to get his home rebuilt in just eighteen months. 09-4037 Issue: This appeal focuses on the Ladd, Esq. of Anderson Kill & Olick, PC. Of Congratulations Don and family! interpretation of the “absolute” pollution Counsel: Amy Bach, Esq. exclusion and whether it applies to damages for property damages caused by a product. UP’s letter addressed the meaning of the absolute pollution exclusion and how it affects Well Adjusted …continued from p5 United Policyholders is an independent policyholders throughout the nation. Insurance UP: So let’s say I’m a business, and not-for-profit resource. UP does not sell policies are often the only viable source of defense my warehouse catches fire, and my or profit from the sale of insurance and and indemnification. The absolute pollution inventory is destroyed. What’s wrong exclusion undercuts coverage that policyholders with having my accountant or my does not accept financial support from had bought and relied upon. If misapplied, as bookkeeper prepare my insurance insurance companies or insurance trade in this case, the absolute pollution exclusion can claim for me? associations. The information provided deny coverage that policyholders purchased and MK: A distinction should be made in this newsletter is a public service badly needed. UP asked the Court to hold that between an employee of the insured the completed-products operations clause—as and an outside consultant. Insured’s to our readers. We do not warrant applied in cases such as this one—trumps the employees do not fall within the scope the quality of any product or vendor absolute pollution exclusion. UP’s brief was of the Public Adjuster’s Act, as they are identified in this newsletter. written pro bono by David Abney, Esq. not being specifically compensated for their involvement in claim preparation. TEXAS However, a bookkeeper or an accountant Advanced Environmental Recycling that is not an employee of the insured, Technologies, Inc. v. American International Discretionary Clauses…continued from p1 and not licensed by the Department of Speciality Lines Insurance Co., (2010) Insurance to represent a policyholder wanted to sell in his state because it United States Court of Appeals for the Fifth in the negotiation and settlement of an contained a discretionary clause. Standard Circuit, Case No. 09-11075 insured loss, is engaging in unauthorized Insurance Company sued Commissioner Issue: (1) Can “property damage” to the public adjusting. Such illegal activity is Morrison claiming he had no authority insured’s “product” be considered an contrary to public policy. to stop them from selling policies “accident” or “occurrence” for purposes An insured’s ability to recover containing discretionary clauses because of coverage under an umbrella liability insurance benefits can be seriously of ERISA preemption. ERISA is the policy; and (2) Do exclusions in an compromised by hiring a bookkeeper Federal Employee Retirement Income underlying primary policy apply to the to prepare the insurance claim. First, a Security Act that hamstrings state efforts true umbrella (as opposed to follow-form) bookkeeper will not have the skills to to outlaw unfair insurance practices. coverage available under an umbrella navigate through the various coverage A Court of Appeal (9th Circuit) sided policy. UP’s brief was written pro bono by provisions. Unlike an experienced with Commissioner Morrison and found John Ellison, Esq. of Reed Smith LLP. public adjuster who reads and evaluates that ERISA did not prevent him from Pendergest-Holt, Laura, Stanford, R. Allen, such policies and endorsements during disapproving the policy form. On May Lopez, Gilbert Jr. and Kuhrt, Mark v. Certain the normal course of everyday duties, 17th, 2010, the US Supreme Court refused Underwriters at Lloyd’s of London and Arch a bookkeeper could do more harm to review or change that appellate court Specialty Insurance Company, (2010) US Court than good by compiling an insured’s decision. (Standard Insurance Company of Appeals for the Fifth Circuit (Texas). Case complex commercial claim. A policy is v. Lindeen, Monica. No. 09-885) This No. 10-20069. Issue: The application of the a convoluted document, so you need the was a huge victory for consumers and a “eight corners” rule to an insurers duty to professional skills of a public adjuster to great leap forward in our efforts to make advance defense costs in a “Directors and navigate it and legitimately maximize discretionary clauses in insurance policies a Officers” context. UP presented arguments your recovery. To read our complete thing of the past. to the court to show how the carriers position interview with Masood Khan visit would defeat the purpose of D&O coverage. http://tiny.cc/mkhan. summer 2010 what’s UP | 7 Nonprofit Org. U.S. Postage PAID Permit No. 7926 Atlanta, GA 222 Columbus Avenue, Suite 412 San Francisco, CA 94133 www.uphelp.org THANK YOU FOR YOUR SUPPORT United Policyholders is the only national consumer organization that is 100% Please return the enclosed dedicated to helping policyholders and educating the public, courts and envelope with your tax-deductible elected officials on insurance issues and consumer rights. We are working contribution check today. You hard so you can truly have the peace of mind you think you’re buying when you write that premium check to your insurance company. 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