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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

                                                                                                      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
                                                                                                        Kim Card
                                                                                                      The Problem Corner                      4
 Discretionary Clauses                                                                                Scoop on Health Care Reform
                                                                                                      CA refuses watered-down NAIC
 Heading For Dinosaur Status                                                                            climate change survey

        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”                           ™
Return Home
                                                  T                                                 Preparedness
                   he MacLellan family (pictured left)
                   recently celebrated the completion of

                                                         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
  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

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
                      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
info@uphelp.org or by calling (415) 393-9990.         Inside Scoop on Health Care Reform

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 info@uphelp.org (Put “180-Day Rule” in             NAIC climate change survey
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 info@uphelp.org                    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
   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
                                                                                                          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
   Fighting for insurance consumers’ legal rights.

Amicus Project UPdate
          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
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