Amendments to the Municipal Minimum Maintenance Standards

The Minimum Maintenance Standards under the Municipal Act, 2001 were amended by Ontario Regulation 23/10, which came into effect on February 18, 2010. Several of the amendments are significant and will require municipalities to review their maintenance practices to ensure that the standards are met.

Over the next several blog entries, we will provide comments on the most significant changes to the Minimum Maintenance Standards. These comments were authored by Jennifer Stirton of our office.

Here is the first:

1. Constructive Knowledge of Facts
Many maintenance requirements in the MMS apply when a municipality becomes aware of a particular fact, such as a minimum snow accumulation, icy road conditions or a missing road sign. The MMS now provide that a municipality is deemed to be aware of a fact if the circumstances are such that the municipality ought reasonably to be aware of the fact.

Massachusetts Appeals Court holds that discovery rule does not apply to allegation that insurance agency employed unlicensed broker

In my last post I discussed Anawan Ins. Agency, Inc. v. Division of Ins., 76 Mass. App. Ct. 447 (2010), in which an insurance agency was accused of employing an unlicensed broker.

After determining that a four year statute of limitations applied, the court held that the discovery rule does not apply. The discovery rule tolls the statute of limitations until a plaintiff knew or should have known that he or she may have a cause of action. For example, in a medical malpractice claim, under the discovery rule in certain circumstances the statute of limitations may be tolled until the plaintiff develops symptoms putting him or her on notice of the malpractice.

In Anawan, in 1999 the division of insurance received anonymous letters stating that Anawan had illegally opened a second location. The division investigated and learned that Prum was doing business at the second location under an expired broker's license. On June 23, 2004, Anawan's director confirmed in writing that it had paid commissions to Prum.

The Massachusetts Appeals Court held that the discovery rule did not apply to punitive civil statutes including the one prohibiting an insurance agency from employing an unlicensed broker. In support of its determination the court quoted 3M Corp. v. Browner, 17 F.3d 1453, 1455 (D. C. Cir. 1994), which stated:

In an action for a civil penalty, the government's burden is to prove the violation; injuries or damages resulting from the violation are not part of the cause of action; the suit may be maintained regardless of damages.

Feds Shut Down Mandated Insurance Program - Leave Homebuyers Stranded

It is no secret that I hate government involvement in business. They just mess things up.



Now we have the shutdown of the federal flood insurance program. Federal law requires that you buy flood insurance when you borrow money on a building in a flood area.



So, for at least the next three weeks nobody will be able to buy a home using a bank mortgage if their home is in a flood zone.



Current policies and claims on current policies are not affected, supposedly.



These are the same people who want to run our health insurance.

Court to use a contextual approach in deciding whether to set aside a dismissal order

Finlay v. Van Paassen 2010 ONCA 204 (C.A.)

In this motor vehicle accident which occurred in October 2003, the Statement of Claim was issued in October 2004 and pleadings and discoveries were completed by September 2005. In January 2007 the registrar issued a Status Notice indicating that the action would be dismissed unless it was set down for trial within 90 days. Unfortunately, the Status Notice was not sent to the plaintiff. On April 30, 2007, unbeknownst to the plaintiff, the registrar issued an Order dismissing the action for delay. Plaintiff’s counsel first obtained a copy of the registrar’s Order in mid May 2007; however, no action was taken to set aside the Order until 2009.

The motion’s judge refused to set aside the dismissal Order, using the 4 factors cited by the Court of Appeal in Marche D’Alimentation Denis Theriault Ltee v. Giant Tiger Stores:

1. Explanation of the litigation delay;
2. Inadvertence in missing the deadline;
3. The motion is brought promptly;
4. No prejudice to the defendant.

For the motions judge, the third factor was decisive. He held that a delay of two years in bringing the motion was not an acceptable way of dealing with the circumstances.

The Court of Appeal held that the judge erred in taking two rigid an approach to the criteria. Instead, the Court should use a contextual approach in which the Court weighs all relevant considerations to determine a just result. The Court of Appeal allowed the appeal and set aside the registrar’s Order.

This decision appears to make it very difficult for defence counsel to succeed in opposing a motion to set aside a registrar’s dismissal Order. The Court is concerned with not allowing an innocent client to suffer the loss of the right to proceed by reason of the inadvertence of his/her solicitor.

Massachusetts Appeals Court holds that four year statute of limitations applies to allegation that insurance agency employed unlicensed agent

In Anawan Ins. Agency, Inc. v. Division of Insurance, 76 Mass. App. Ct. 447 (2010), the Division of Insurance alleged that Anawan Insurance Agency paid compensation to Kuntthy Prum at a time that Prum was not licensed as an insurance agent.

The first issue addressed by the Massachusetts Appeals Court was which statute of limitations applied. Mass. Gen. Laws 260 § 5 states that the statute of limitations on actions for penalties or forfeitures is either one or two years. By its terms, that statute does not apply if § 5A applies.

Mass. Gen. Laws 260 § 5A states that the statute of limitations for actions arising on account of violations of "any law intended for the protection of consumers" is four years.

The court held that Mass. Gen. Laws ch. 175 § 177, which prohibits payments to unlicensed brokers, is a statute intended to protect consumers, and that therefore the four year statute of limitations applies.

I'm Now AmEx Open Forum's Insurance Expert

Just inked a deal with AmEx to join their Open Forum as their insurance expert - posting, commenting, and pontificating on insurance issues.



It will be a few weeks before content is posted. I'm looking forward to the challenge, exposure, and discussions that will come out of this.



Stay tuned.



WWW.OpenForum.com

The Right Life Insurance Policy for You

If you like getting the hard sell from casual acquaintances, distant relatives, old college buddies or parents of your kid’s Little League teammates, here’s some good news: the life insurance industry is building up its sales force.

The Wall Street Journal says many big insurers are adding thousands of agents to pitch investment-style insurance products to customers disenchanted with the stock market.

At one point or another, life insurance is an essential product for just about anyone with a spouse or children. But the market is a minefield, littered with products that are all but impossible to understand. So what’s the best way to tackle it?

First is to decide on your main goal. If you have young children and want to be sure there will be enough money to get them through college if something happens to you, then a simple term policy may be the best choice.

Many term policies offer $250,000 to $500,000 of coverage for a premium of $1,000 to $2,000 a year. If you don’t die within the term, typically 10 or 20 years, your beneficiaries collect nothing. But term is ideal if you believe that after the coverage period ends you’ll have plenty of other assets to keep the family going. It’s easy to shop online and compare one policy to another. Look for a term policy in the BankingMyWay.com Insurance Center.

There also are numerous types of “permanent” insurance that will cover you for life. Different types, such as “whole” and “universal” offer various options, but most have an investment component.

Initially, premiums may be several times higher than a term policy would charge for the same death benefit. But, over time, investment gains can be used to pay the premiums. Permanent policies typically build up value, or equity, that you can draw on in retirement, or take as cash if you cancel the policy.

While permanent policies can suit people who really need lifetime coverage, these policies are so complex and varied it’s difficult to make apples-to-apples comparisons.

Many experts argue that most people are better off getting low-cost term policies and putting the money saved on premiums into more straightforward investments like mutual funds, where the apples-to-apples comparison is easy. This also provides more flexibility, as you can choose among thousands of funds, not just a handful offered by a life insurance firm.

Shopping for a permanent policy generally involves dealing with an agent who earns a commission on the sale, a conflict of interest that can taint the agent’s advice. You could get advice from a fee-only financial adviser, who is paid a flat or hourly rate and has no stake in your decision, but this might be pretty expensive unless it is part of a broader financial plan covering your investments, tax issues and estate planning.

With any permanent-life policy, ask the agent for clear data on the investment component’s track record, and then compare that to a comparable set of low-fee mutual funds. If the agent cannot comply, consider it a red flag.

Also, be sure to find out which elements of the policy are guaranteed and which are not. Is there a chance your premium could go up rather than down? How much “cash value” can you get back if you cancel the policy? How long would you have to continue paying premiums under the worst case?

Shopping for insurance can be mind-numbing, but it doesn’t have to be if you stick to term policies. So, with every permanent policy the agent pitches, ask: “Why wouldn’t I do better buying a term policy and investing separately?”

Comparing Term Life Insurance Rate Should Be Easy


Do you want affordable but quality life insurance plan? The first thing that you should do is to compare different rates offered by several insurance companies. It is very easy nowadays to know the current term life insurance rate. Almost all insurance companies today are working with one or several online providers that give quotes for consumers like you. So getting term life insurance quote is just a few mouse clicks away. The key to get the best deal is to know how to compare the rates that you can get from an online provider. There are several factors that you should consider like the cost of premiums, amount of death benefits, and the reputation of the insurer.

One of the first things that you need to consider when you get term life insurance quote is the amount of death benefit. You may have different insurance needs compared to other people so you should pay particular attention to the benefits that your family can get from the policy. If you want to get the best term life insurance rate, you need to pull-in quotes from policies with similar amounts of death benefit. This way, you can really make a sound comparison if the cost of the premium that you will pay regularly is favorable. Premiums are based on the benefits or coverage you need and other factors like your age and current health conditions.

It is possible to get discount or very cheap term life insurance quote. But if you will look closely, discount life insurance rate may have smaller benefit or limited coverage. So you really can not compare it with a policy with bigger coverage and death benefit. This type of policy will normally have higher premium rates. To make an informed choice, you should compare several policies of the same class so you can really choose which one among them has the cheapest cost. Getting this kind of data should not be too difficult because as stated earlier, all you need to do is use the online facility of an insurance provider that offer quotes from several insurance companies. Getting insurance rates and quotes online will take a few minutes only. So if you want to have the best insurance policy, you have to take time to research the different offers of several insurance companies.

Of course, when you get life insurance rate, cost and affordability are two things that are foremost in your mind. In fact, these two factors are the chief reasons why you are getting term life insurance quote. However, cost is only one of the factors to consider when you shop for insurance. You should also consider the reputation of the insurance company that you want to deal with. You have to make sure that the insurance company has a clean track record in dealing with consumers. It should be practicing the accepted standards in the industry. Most important of all, you have to make sure that the insurance company is financially sound.

Are you looking for the best and most favorable life insurance rate ? Visit our website today and take advantage of our highly reliable life insurance quote services so you can get the best insurance policy for your family.

Can you afford life insurance (term, whole, variable or universal) and disability insurance?


Financially squeezed families oftentimes cannot budget for both, yet each is key to a secure financial future. How should you allocate your limited insurance money for the greatest peace of mind?

If, despite your best efforts, you just can't afford both policies, which should you sacrifice?

"It's a very tough decision," says Barry Katz, a fee-only Certified Financial Planner and president of Caratel Financial Services in Fort Lauderdale, Fla.
"If you're 40 years old, absent a family history of early death, statistically you are more likely to become disabled than you are to die," Katz says. "And if someone passes relatively young -- say, 37 to 40 -- the surviving spouse, after a period of mourning, will adjust their lifestyle and get back to work or take a different job.

"Given that, I always allocate more dollars to disability insurance than to life insurance, within the confines of their financial goals, objective and how much money they have to spend."

But Katz cautions cash-strapped consumers not to jettison any insurance policy capriciously.

"The problem with dropping life insurance or disability is there is the risk that you may not be able to get it again in the future," Katz says.
Depending on your circumstances, these five tactics can help you decide how to allocate your limited insurance funds:

1. Spend less and meet your premiums. If you already have disability and life insurance, don't cancel the policy if times get tough. Instead, cut back on discretionary spending such as dining out and vacations in order to keep both policies active.
It can be more costly in the long run to reapply for coverage later, and you would risk a worst-case scenario in the meantime. Remember: Your income may fluctuate, but your need to insure against these risks is unlikely to change.

2. Buy with an eye toward flexibility. If you have not yet purchased life insurance, you may make this tough choice easier in the future by purchasing several smaller term life policies rather than one large policy.
It will likely cost more in upfront fees, but should your income wane, you can drop a couple of the smaller policies and still have some coverage until you can afford to replace them.
"When you're dealing with insurance, it's very difficult to say, 'I'm going to reduce my life insurance cost by $50 a month; just give me that much less,' because you've contracted for a certain level of insurance at a certain premium," Katz says.
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"But if you have $200,000 in term life insurance that happens to be made up of four $50,000 policies, then you might drop one of those policies, whereas if you have a single $200,000 policy and you want to replace it with a $100,000 policy, you may have to reapply and requalify."

3. Scale back your policy. You also can cut costs on a new disability policy by opting for a longer waiting period before benefits begin (industry average is currently 90 days) or choosing to receive benefits for a shorter period of time (such as five years) instead of insuring until you are 65.
The main benefit of this approach is that you'll have some coverage you can afford now rather than having to go without. However, there is a downside -- you may not be able to shorten the waiting period or lengthen the benefit period later should your financial circumstances
Ask your insurance company about such issues before you decide on a policy, as some policies are more flexible than others.

4. Look for help from riders. Rather than choose between disability and life insurance, check first to see if either policy offers a rider -- an addendum that insurers use to expand your coverage -- usually for an additional fee.
"The best bet would be a life insurance policy with a disability rider or a disability policy with a life insurance component," Katz says. "You may be able to do a balancing act where the premium would be less but you do still have both disability and life."
Also, be sure to check with your home insurer to see if it offers a disability rider with your homeowner's policy.
You're not likely to get the same coverage or terms with a rider as you would with a stand-alone term life or disability policy, but it may be a cost-effective alternative to dropping one over the other.

5. Don't overbuy. It may be tempting to buy a lot of coverage -- but it also may be a mistake.
"People think they need a lot more life insurance than they do because they are using (insurance company) calculators that are geared to oversell," says Laurence Kotlikoff, a William Fairfield Warren professor of economics at Boston University who developed the ESPlanner financial planning software.
"Saying that you need 78 (percent) to 85 (percent) or even 100 percent income replacement is completely nuts."

Insurance Update of Chinese Drywall Damages

What a mess!



I have been reading with interest the reports of defective Chinese drywall.



From an insurance perspective your property and home insurance probably will not provide coverage.



Contractors may not have coverage either, depending on the construction defect exclusions in policies.



Here is an article on the financial impact of the issue on insurers.

Good article on the meaning of "collapse" in property damage policies (national scope)

I posted here and here on the Massachusetts interpretation of "collapse," which is generally an undefined term in property damage policies. Massachusetts takes the narrow view that coverage is limited to the actual falling down of a covered structure.

Here's an interesting article, Insurance Coverage for Collapse - How Has It Changed and Why? in Adjusting Today, a publication of Adjusters International, Inc., a public adjusting company. The article covers the history and interpretation of "collapse" nationally.

The Teleseminar Teleseminar

I usually keep this blog for insurance and risk issues.



Most of you know that I also provide mentoring services for insurance people and consultants.



This Friday I am putting on a free teleseminar on running teleseminars.



I have found that teleseminars are a great way to provide value and prove your expertice - hence, marketing.



Go HERE to register.



All are welcome. No charge and no obligation.

Agent Selection in a Bid Process - Case Study

Agent selection is the toughest part of the insurance renewal bid process. However, nobody seems to talk about the actual dynamics of the process. I thought a snapshot of my thoughts and considerations from a current bid project would be instructive.



This is typical of the issues and thinking behind assigning agents in an agent selection or renewal bid process.



To set the stage... The insurance buyer spends upward of $150,000 a year on insurance. They have worked with the current agent for 5 years. The agent has done a great job. The client is quite comfortable with the service and coverage they have. The agent has managed claims and policy service issues very well. The client is bidding this year as it is a public entity involving taxpayer money. There is an obligation to seek bids every 5 years or so.



Agent selection questionairres were sent to five different agents and to two "industry" programs run by trade associations. All seven organizations responded with interest.



Now we have to decide which agents and insurers will be allowed to participate.



Here are the insurer requests (ranked by preference) of the five agents:



Agent Thomas - The incumbent

1. Insurer Oak - The current insurer

2. Insurer Maple

3. Insurer Pine



Agent Fred - Industry specialist

1. Insurer Maple

2. Insurer Pine



Agent Sam

1. Insurer Maple

2. Insurer Pine



Agent David

1. Insurer Maple



Agent Sarah

1. Insurer Maple

2. Insurer Elm





Background:



-Thomas is the incumbent and doing a great job for the client.



-Fred is an industry specialist and has a great relationship with Insurer Maple. I have worked with this agent extensively and think quite highly of his abilities. The client has no relationship with this agent.



-Sam is a local agent but has no relationship with the client. He has not differentiated himself in any way.



-David is an agent from a hundred miles away and has no relationship with the client. He has not differentiated himself in any way.



-Sarah is a local agent with no relationship with the client. She has not differentiated himself in any way other than requesting a market nobody has mentioned.



-All agents have fine reputations and handle other clients in this industry.



-Insurer Oak (the incumbent) has been a major force in this industry for 20 years, as have the two association programs. The client is pleased with the insurers work and claims process.



-Insurer Maple is the successful newcomer, making great strides in the past year and lots of noise this year. They are a competitive factor.



-Insurer Pine is an unknown. They have made noise in this industry, but never showed anything in past years. They are a fine, general insurance company.



-Insurer Elm is an unknown. No other agent requested this market, and to my knowledge they have never written such an account in the state.



The task is to select agents to participate in the bid and assign insurers that will give the best result to the client while keeping competitive forces aggressive in the process.



The easy part is:



-Both Association programs will be a part of the bid. They each offer viable competition to the other insurers.



-The incumbent agent will get the current insurer. At a minimum, the agent and insurer have earned that.



-Sarah is the only agent to propose using Insurer Elm. Sarah gets Elm.



What to do with Insurer Maple and Insurer Pine?



Sam and David bring nothing special to the bid process. They are not bad. They just have not differentiated themselves in any way.



As Fred is an industry specialist, and has a special relationship with Insurer Maple. The logical choice seems to be to give Fred access to Insurer Maple.



However, the client is quite reluctant to change agents due to the exceptional service they perceive that they have received. I asked the client if another agent presented a proposal that was 20% better (price and coverage) than what the current agent presented, would they switch? My client says they might not.



So, I have a situation where if Maple, through another agent, brings a 20% improvement, my client may pass up on the savings to stay with their agent.



I think that there is a better than good chance that Maple will win the bid on coverage and price - based on what they did last year and what I'm hearing about this year.



If I do the logical thing (give Maple to Fred), my client could ultimately end up spending more and getting less coverage.



My recommendation to my client is to give their current agent access to Pine, Maple, and Oak. Agent Sarah will be allowed to access Elm and the two association plans will make their proposals.



I have long said that broker selection and market assignment are the toughest part of the bid process. I know that Agent Fred will not be pleased with my recommendation and will probably not understand my reasoning. However, I must do what is in the best interest of my client.



A successful end result of this bid process will come from stiff competition. The current agent will have to make his insurers perform to compete with the association programs and each other. Agent Sarah gets to play her wildcard.

Graham v. Toronto, [2009] O.J. No. 4633

This is a decision of A. Sosna J. of the Ontario Superior Court of Justice.

I think this is an interesting decision because the judge dismissed the claim against the City of Toronto even though the plaintiff had tripped and fallen over a "metal frame" left lying in the middle of the sidewalk. The claim was dismissed because the City had good record keeping which showed that it had inspected the highway (including the sidewalk) just 8 hours before the trip and fall. Therefore the City had met the standard of care required of it.

Facts: A claimant tripped and fell after stepping into the interior of a metal frame lying on the sidewalk. Apparently he saw the metal frame, stepped into it and while exiting, caught his left foot on the frame. As a result, he lost his balance and fell, suffering two broken bones in his left arm. A metal rod had to be inserted into his arm.

The Municipal Act, 2001, s. 44, governs liability. It provides that a municipality is liable for all damages sustained for failing to keep highways (which includes sidewalks) in a state of repair that is reasonable in the circumstances. It also includes a defence that a municipality is not liable if it did not know and could not reasonably have been expected to have known about the state or repair of the highway.

The City provided evidence that an inspection of the highway, including the sidewalk, had taken place approximately eight hours before the trip and fall. The City employee who conducted the inspection says that he would have immediately removed the metal frame had it been noticed. Further, there was no record of any complaint or notice given to the City about the metal frame on the sidewalk.

The trial judge held that it is a question of fact in each case whether a condition of non‑repair or hazard exists and if so, whether the municipal authorities’ response is reasonable, timely and properly executed. The judge held that the inspector had not observed the rectangular metal frame lying on the sidewalk and the accuracy and reliability of his observations were not undermined or negated during cross-examination. Therefore, despite the “tragic and unfortunate injuries to the plaintiff”, the defendant met its evidentiary burden of establishing that it had met the requirements of the Municipal Act, 2001, and as such should not be held to a standard of perfection.

The trial judge then dismissed the plaintiff’s claim.

The trial judge went on to assess damages at $50,000.00 and interestingly would have assessed contributory negligence at 50%.

Catastrophe Insurance Bill criticized as subsidizing development in environmentally unstable areas

Here's an interesting article by Arthur D. Postal in National Underwriter about the Homeowner's Defense Act, H.R. 255, which would create a new federal reinsurance program for state catastrophe funds.

According to the article, critics claim the bill would only help "stupid, rich people who want to build mansions on sand dunes" at the expense of all other taxpayers.

Personal Emergency Plan

A recent article in Best's Review by Scott Spencer discusses the importance of a personal emergency plan.



He says there should be three key components:



-Communications

-Evacuation Points

-Security



While this is not a new idea, he did get me thinking about evacuation points. We always had a meeting place for the family if there was a fire in the house (the mailbox out front). Spencer makes a point of having a place distant where the family can meet up if there is an evacuation - he suggests a shopping mall.



A great idea.

Identity Theft

Identity Theft Heartless Crime

Recently, while visiting with friends in Germantown, I noticed a marked security guard parked across the street in front of a home.

When I inquired about it, they explained that the man that lived there passed away and it is now normal for a security guard to be posted after a death. It saddens me, but it makes sense. Funeral arrangements are published in the paper. Mother’s maiden names and similar information is there for the taking. Clearly, the house may be empty during services. Burglars prefer unarmed victims and empty houses.

Weddings are also becoming a similar problem. Back when we married, you had to pay for the cake, food, flowers and a dress. Now, I guess you must add security to that list.

Has society dropped this far?

The rituals of death and love are now fodder for the lowest of society to pounce upon?

I guess I should not be surprised, but I am still disappointed.

Here you'll find recent identity theft statistics from a variety of official sources. We update this page on a regular basis, so visit us often to see the latest facts and figures on this widespread crime. How widespread is it?

There were 10 million victims of identity theft just in 2008 in the United States and 1 in every 10 U.S. consumers has already been victimized by identity theft.

Also, it may not be discovered immediately. Only 38-48% discover someone has stolen their identity within three months, while 9-18% of victims don't learn that their identity has been stolen for four or more years.

And, it is a mess to straighten out, even though it may not cost you actual money. The average victim spends 330 hours repairing the damage.

And, it can interfere with your life. 47% of victims encounter problems qualifying for a new loan while 70% of victims have difficulty removing negative information that resulted from identity theft from their credit reports.

Who does this? Fully 43% of victims knew the perpetrator! Stolen wallets and physical paperwork accounts for almost half (43%) of all identity theft.

Keep an eye on your credit report for free at www.AnnualCreditReport.com

_________

The effect of global warming on insurance coverage issues

Mike Tracy of Rudolph Friedmann LLP forwarded a copy of this interesting article by Robert Redfearn, Jr. of Simon, Peragine, Smith & Redfearn about the likely effects that global warming will have on the insurance industry.

The article talks about claims alleging that corporations are liable for damages because their practices have contributed to global warming.

More broadly, global warming has already begun to impact insurance coverage litigation. As just one example, litigation arising out of Hurricane Katrina led to extensive interpretation of "anti-concurrent causation" or ACC, clauses in insurance policies. Those clauses exclude coverage whenever an excluded peril and a covered peril combine to damage a dwelling or personal property. Insurers denied coverage under homeowner's policies on the basis of those clauses where damage was caused by a combination of wind (a covered peril) and water (an excluded peril).

Court rejects argument deductible does not apply to awards of exactly $100,000

Van Winckle v. Siodlowski, [2009] O.J. No. 4807 (S.C.J.).

In this motor vehicle accident case, the jury awarded the plaintiff exactly $100,000 in non-pecuniary general damages. The plaintiff made the creative argument that the deductible should not apply where the award is exactly $100,000. Section 267.5(8) provides the deductible does not apply where the amount of non-pecuniary general damages "would exceed $100,000".

The Court held that "exceed" means greater than, not greater than or equal to. The deductible applied.

The decision makes sense. If the legislative had meant "greater than or equal to" $100,000, it would have said so.

Medical Malpractice Rates

The medical malpractice insurance marketplace is seeing premium reductions this year, according to an article in "The Standard," March 5, 2010. The piece quotes a Standard and Poor's report showing a slight reduction in premiums, compared to 2009 and 2008.

U.S. Court of Appeals affirms that implied coinsurance doctrine applies to resident of retirement home

I posted last year about a decision of the United States District Court for the District of Massachusetts in Fed. Ins. Co. v. Commerce Ins. Co., 2008 WL 4873959 (D. Mass.), in which the court held that the doctrine of implied coinsurance barred an insurer of the owner of a retirement community from bringing a subrogation action against a resident who negligently started a fire.

The implied coinsurance doctrine states that a residential tenant is an insured on a landlord's insurance even if the policy does not state that the tenant is an insured. Under that doctrine, a landlord's insurer is barred by the anti-subrogation rule from seeking reimbursement from a tenant for damages caused by the tenant. (The anti-subrogation rule bars an insurer from seeking from its own insured reimbursement of funds the insurer paid on a loss.)

The United States Court of Appeals for the First Circuit has affirmed the District Court's decision in Fed. Ins. Co. v. Commerce Ins. Co., __ F.3d ___, 2010 WL 716412 (1st Cir.)

The court first held that the lease was a residential lease so that, absent an exception, the implied coinsurance doctrine would apply.

The court then held that an exception to the implied coinsured doctrine where a lease has an express provision establishing a tenant's liability for loss from a negligently started fire did not apply. The court held that if the landlord intended to include such a provision in the lease, "it needed to be crystal clear in requiring that the tenants maintain fire insurance."

Although the lease at issue mentioned a tenant's liability for damages caused by the resident, it had no express language establishing liability for fire damages. The lease mentioned insurance, but could interpreted as making tenants liable only for losses to their personal property. Neither of the clauses explicitly mentioned fire liability.

What Services Should Agents Offer Business Insurance Buyers?

On the Insurance Journal Forum I was asked, "What kinds of stuff makes an insurance consultant stand up and take notice???"



My List of Required Actions (Plus) for Agents Serving My Commercial Clients:



-Annual review meeting to review coverage (at insured's office, at agent's office, or on the phone).



-Presentation of renewal proposals 30 days prior to expiration - 60 days prior if the account is being renewed with the current insurer without other proposals. (This is a new requirement, that I know will cause gnashing of teeth. However, it is a standard that can be reached.)



-If the account is dynamic or complex, a mid year review - or more.



-Claims reviews as needed - discussing all open claims.



-Experience modification claim review (agent talks with adjuster) 5 months into the WC policy - all open claims going back 4 years.



-Review of experience modification worksheets when issued.



-Responsive to service requests.



-Utilizes email.



-Able to scan documents and attach them to emails.



-Responsive to coverage questions and alternative quotes.



-Broad access to markets - standard and E&S (through a broker is fine).



-A student of insurance coverage - advanced designations, access to FC&S, and other reference materials.



-A general attitude of, "how can we make it easy for you to do business with us."



I bring business to agents that meet the above. I appreciate agents who bring me ideas and insurance thinking. Emails sent to me that start, "I saw the attached and thought you might find it interesting." Company reports, agency white papers, copies of marketing materials, and other materials that help me serve my clients better. Don't buy me gifts, offer me lunch, send me sporting events tickets - all will be refused and returned.

Buyer's Market to Continue

The John Liner Letter published a report recently on the state of the insurance marketplace. It predicted that the soft (read "buyer's") market will continue for several more months and perhaps longer, "because insurers have too much supply chasing too little demand." The article cites unused capacity in the market. ("The Standard," March 5, 2010)



Five to ten percent premium reductions at renewal seem to be the norm. I am seeing higher reductions in the renewals I work on for clients.



Coverage terms continue to be liberal too.

Contrary to article by conservative lobbying group, Massachusetts does not have "anti-steering" legislation

Stephen Richer, director of outreach of conservative lobbying group The Washington Legal Foundation, has sent me a link to an article protesting so-called anti-steering legislation that prohibits auto insurers from recommending particular body shops to insureds.

According to the article, six states, including Massachusetts, prohibit this practice. I was puzzled to read this as insurers have recommended auto body shops to me on the several occasions that my car has suffered property damage.

The Massachusetts statute cited by the article, Mass. Gen. Laws ch. 90, § 34O, does not "prohibit insurers from 'steering' policyholders to body shops with unsolicited recommendations," as claimed by the article.

To the contrary, the statute states that the insurance commissioner may require that insurers give to insureds "a list of at least five registered repair shops, geographically convenient for the insured, from which the insured may at his or her option selected a shop . . . "

Insurer Impairments - Insolvencies

The National Conference of Insurance Guaranty Funds recently issued a white paper on the status of the various state funds that "protect" insurance policyholders from insolvencies.



Naturally, the group reports that the group serves an important function. We'll leave that to another day...



The report reports that "insurer impairments" were up in 2009.



2009 20 impairments

2008 15 impairments

2007 14 impairments



(Source - 2/12/10 issue of The Standard)



Practical point - state guarantee funds do little for most business insurance buyers. Sure, if your insurance company becomes "impaired" the payment the guarantee fund makes is better than nothing. Most states limit coverage to $400,000 or $500,000 for claims. Return premium can be as low as $2,500. Your best bet? Don't buy insurance from a struggling insurer.



See your state's provisions - http://ncigf.org/GF-laws-and-summaries-by-state.

SCC: good review on law of negligence

The Supreme Court of Canada has recently released unanimous reasons for judgment written by Cromwell J., Fullowka and Pinkerton’s of Canada Limited, 2010 SCC 5.

I bring this case to your attention as a helpful overview on the law of negligence in Canada.

A strike at a mine near Yellowknife in 1992 degenerated into violence when the mine decided to continue operating the mine during the strike with replacement workers. Several security guards were attacked and some striking miners set off several explosions. One striking miner planted an explosive device in the mine and a car carrying nine miners triggered this set trip wire killing them all in the explosion. The miner survivors sued the mine, the security company hired to protect the mine during the strike and the Northwest Territorial Government. They also sued the local and national union for failing to control the striking miners and for insighting the violence.

The Supreme Court of Canada very helpfully reviews the law on duty of care, standard of care, proximity and other elements of the tort of negligence. The court held that the trial judge had been correct in finding that the murdered miners were owed a duty of care but errored in finding that the requisite standard of care had not been met. Justice Cromwell held that to the extent that the judge had required the security company to ensure that the entrances were properly guarded to avoid all access to the mine, he had imposed an absolute duty on the security company and not a duty of reasonable care.

The Supreme Court of Canada also held that the trial judge had applied the wrong legal test for causation. The correct test is the “but for” test and that this case did not fall into the class of exceptional situations in which the test for causation should be relaxed to the “material contribution” test.

All in all this is a good read for the review of negligence principles including duty and standard of care, foreseeability, proximity and residual policy considerations.

TheStreet.com Ratings

I have long been a fan of TheStreet.com Ratings - the rating service formerly known as Weiss.



I see them as the tough grader in the world of insurance company ratings.



AM Best is the easy grader. An incredible percentage of insurers have a Best rating of A- or better. That fact has always caused me to scratch my head. In everything else in the world groups populate a bell-curve. Not insurance companies (according to Best), most of them are Excellent or Superior.



The Street.com Ratings is a bit different. I count 167 out of 4300 insurers with a rating of A- or better - that's 4%.



Sure, I still use AM Best Ratings. Frankly, they are the brand everyone knows.



However, I always check the TheStreet.com Rating - http://www.thestreet.com/insurers/.

VT Work Comp Premium Reduction

Vermont is reducing its voluntary loss costs for workers' compensation by 4.1%.



The soft insurance market continues. Great news for insurance buyers.

The Endorsement All Contractors Need

Is there a chance your business can damage property owned by someone else?



Do you work at your customer's location?



If you burned down a customer's building, would you expect your insurance to pay for the damage?



If so, there is probably a hole in your insurance coverage.



Think about a painter. He sends his team into the customer's office one night to repaint a conference room. A careless worker lights up a cigarette and inadvertently starts a fire. In addition to the damage to the building and the general contents, the fire destroys the office computer server.



Most general liability policies will pay for the damage to the building and to the contents. The computer system is also covered.



What is probably not covered by the contractor's insurance is the data on the computer. Most general liability insurance policies specifically state that data is not "tangible property" and therefore not covered for "property damage" within the general liability insurance policy.



Surprise!



Fix the problem by having an endorsement added to your insurance policy that alters the definition of tangible property to include data (ISO form CG 04 37). You can also add coverage for "electronic data incidents" (ISO form CG 00 65).



If you don't have these endorsements now, it might be time to consider the quality of your insurance advisor.

Invitation to Insurance Attorneys Women's Networking Group

The first meeting of the Insurance Attorneys Women’s Networking Group (suggestions for a name with a better acronym welcome) will be on Tuesday March 16 from 5:30 to 6:30 PM at Legal Seafoods in Chestnut Hill:

http://www.legalseafoods.com/index.cfm/page/Chestnut-Hill-Shopping-Center-Chestnut-Hill/pk/content/cd/location/pid/0/cdid/11839

The purpose of this group is to get to know other women who practice insurance law--insurance defense, coverage, subrogation, and business.

Please RSVP to me at ninakallenlaw@hotmail.com by noon on Monday, March 15 if you plan to attend.

New SABS Regulations Available

The new Statutory Accident Benefits regulations are now posted on e-laws. They are effective September 1, 2010.

You can find them on the e-laws website at:

http://www.search.e-laws.gov.on.ca/en/isysquery/36aa91e5-e4cf-4b25-81b8-3823a94a0369/3/frame/?search=browseSource&context

Or go to www.e-laws.gov.on.ca then go to "Source law", choose "Regulations as filed", select 2010 and look under "I" for Insurance Act.

Insurance Renewal Process White Paper Draft Review Copy Available



As I have mentioned here before, I have been doing a great deal of thinking on the subject of the business insurance renewal process - from the insurance buyer's perspective.


I have put some of my ideas in a white paper, including ideas shared by the well over 100 people who commented on my posts, here and from other sites.


I'm interested in feedback on the draft of the first section of my white paper.  I will provide a free draft to anyone interested.  Absolutely no obligation and your email address will not be shared.


Automobile Accidents

The following was included in an auto policy I was reviewing for a client.



According to the National Highway Trafic Safety Commission:



Last year in the US there were 6,289,000 police-reported crashes

3,200,000 injuries

41,345 deaths



3 workers die each day from work related automobile crashes



Auto crashes cost employers almost $55,000,000,000 each year.

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Here are broad ideas I have when looking at the renewal process from the insurance buyer's perspective:




- The most important part of the insurance transaction is the relationship the insurance buyer has with the insurance agent.  That being said, few agents have unique skills and resources.  Almost any insurance buyer can easily find an agent who will provide superior service.  In fact, a search will usually uncover several.




- Insurance agents all tout the exceptional service they provide.  The reality is often different.  Insurance buyers expect great service and dismiss service claims of potential agents.




- A match in personalities of the insurance agent and the insurance buyer is important.




- Trust of the agent by the insurance buyer is important.




- The geographic location of an agent is important.  Different states have different laws.  Regional insurance markets are different.  Understanding the insurer's resources in an area can help at time of claim.




- An agent's specific industry expertise can trump the importance of an agent's location.




- An insurance agent's access to a broad range of insurance companies is important.




- An insurance agent's relationship with their insurance companies is important.  Large premium volume with an insurer means that the agent has some pull with the insurer - in underwriting and in claims.




- When using multiple insurance agents in a bid process, the buyer must assign insurers to agents.  The assignment of a company to a particular agent is important.  An insurer's performance does vary (coverage, service, and price) by the agent who has brought in the business.




- Insurance underwriters have wide latitude in the premiums they can charge and the coverage they can offer.  Underwriters are charged with finding the right price based on the perception of the risk and the appetite of the insurance company.  Most insurance rating starts with some kind of base premium.  Underwriters can then increase premiums by as much as thirty percent.  They can also decrease premiums as much as thirty percent from the base. (Note to insurance people: Yes, I am overly simplifying the rating process.  However, the fact remains that underwriters can largely do whatever they want with premiums.)  The authority of managers and supervisors is even greater.




- Underwriters can almost always hit a stationary price target if they like the risk, respect the agent, and want the business.  Tell the underwriter they will lose the account unless they meet or beat a competitor's price, and the price will be beat.  Give them a last shot, and that shot will almost always hit the target.




- The threat of losing a bid or an account makes agents and insurers sharper.  Competition keeps service high, coverage broad, and pencils sharp.




- Price is always important to the insurance buyer.  It is rarely the only consideration.




- Underwriters have a great deal of latitude in coverages, too.  Not as broad as with pricing.  However, when pushed for a reasonable coverage concession, most underwriters can get the job done - if they really want to.




- Most insurance buyers prefer to renew their policies with the same agent and same insurer.  In most instances, where the relationship of the agent with the client is stable, a premium savings of 20% is needed for the account to move.   Even then the current agent often gets the "last shot."


Comments encouraged.


SJC rejects auto insurer's argument that different MAIP rules for large insurers than small insurers should be thrown out

I have been discussing Arbella Mut. Ins. Co. v. Comm'r of Ins., 456 Mass. 66 (2010), in which the Supreme Judicial Court addressed several issues relating to the Massachusetts Automobile Insurance Plan (MAIP), under which automobile insurers are required to issue policies to high-risk drivers.

Arbella challenged MAIP Rule 36, which regulates agreements called "limited assignment distribution agreements" or LADAs. A LADA is an agreement under which one insurer, called an "assigned risk company," or ARC, services, for a fee, all of the high-risk policies another insurer was assigned under MAIP.

Rule 36 sets out several requirements for LADAs. It states that insurers with less than five percent of the market share may assign their risks without approval from the insurance commissioner, and that insurers with more than five percent of the market share must obtain the commissioner's approval. It also states that only insurers with more than one percent of the market share may serve as ARCs.

Arbella argued that Rule 36 harms consumers because high-risk drivers whose policies are assigned under a LADA will face higher rates from the assignee insurer than they would from the assignor insurer, and that large insurers are unfairly treated differently than small insurers under the rule.

The court noted that policies issued to high-risk drivers often require a disproportionate degree of administrative attention from the companies that service them. Companies with less market share, and therefore fewer assigned high-risk drivers, may be less well-equipped to give policyholders that extra attention. The court stated that is the reason that Rule 36 allows companies with a market share of five percent or less to enter LADAs without first seeking the commissioner's permission.

The court stated that the requirement that only companies with at least one percent of market share may serve as ARCs ensures that ARCs will have the necessary resources to manage the high-risk policies. It also stated that the minimum market share requirement means that ARCs will have a competitive rate on their voluntary policies. Since insurers are required to charge the same rate for their assigned high-risk policies as for their voluntary policies, the rule ensures that the rates charged for high-risk policies are competitive.

The court held that Arbella lacks standing to object to the rule because the statute at issue was not intended to protect insurance companies, but consumers.

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Business Insurance Policy Renewals

There are only four choices when you are anticipating the renewal of your insurance.  Each approach, from the insurance buyer's perspective, has advantages and disadvantages:



Renew-As-Is - Renew with the current agent who renews with current insurer



  • Easy - agent has info he needs

  • No competitive pressures to push better coverage or price

  • Nobody checks the agent's work

  • Little recourse if premium increases





Current Agent Obtains Quotes From Multiple Insurers



  • Easy - agent has info he needs

  • Competition among insurers

  • No competitive pressures to push agent

  • Nobody checks the agent's work

  • Agent may miss quotes from viable insurers

  • Insured's relationship with insurer may suffer





Bid Process With Multiple Agents - Current agent and others compete



  • Ultimate competitive pressures exerted

  • Will result in lowest price and broadest coverage

  • Overseeing the process involves effort and knowledge

  • Great investment in buyer's time working with other agents

  • Comparisons of plans is difficult for the buyer without help

  • Relationship with your current agent may suffer

  • Relationship with your insurer may suffer

  • May have to start new relationships





Agent Selection Process - Interview multiple insurance agents, select one



  • Buyer is exposed to multiple agents

  • Competition among insurers

  • Overseeing the process involves effort and knowledge

  • Buyer will invest time working with multiple agents

  • May miss quotes from viable insurers as the a single agent quotes

  • Relationship with your current agent may suffer

  • Relationship with your insurer may suffer

  • May have to start new relationships



I am working on a system that will help insurance buyers decide which option is the best, based on their unique situation.



Stay tuned.

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