Un-clutter

Not really an insurance topic.



I am un-cluttering.  Went through my bookcase the other day.  Pulled out about 200 books and donated them to the community college I teach at and Goodwill.



One book I put on my desk - feeling that I just could not part with it - my college dictionary.  I have not opened it in at least 15 years.  It is well beat up and most of the "bad" words have been highlighted (youthful interest in the naughty).



I threw it in the recycling bin this morning.  The Internet has better and faster dictionaries.  My Kindle has one too.  I'm 50.  If I don't throw it out now someone else will have to when I die in 43 years - chances of me needing a hard copy dictionary between now and then are slim to none.

Scott's Rules of Insurance - Rule 7 - Good Agents Manage Risk

Insurance Rule 7 - Many insurance agents are transaction based - the good ones are focused on managing your risk



There are lots and lots of insurance agents out there. Most are focused on transactions - sell a policy, help with a claim, answer a question, get a payment... The good ones are looking at ways to manage overall risk. They see their own value as providing knowledge and tools that help their clients minimize the impact of negative events.

Empty Nesters May Still Need To Purchase Life

Should your empty nester clients get life insurance? Perhaps--if they have a lot of personal and/or business liabilities or concerns about estate taxes. Life insurance also might help those who have lost retirement income or anyone who may be left with an inadequate amount of family income if one spouse dies.

Couples who believe they no longer need life insurance after the youngest child “flies the coop”…could leave the family financially vulnerable, warns Steven Weisbart, Ph.D., financial planner with the Insurance Information Institute, Washington, D.C. “This,” he says, “is especially true in the event the sole income-earning parent dies.”

While LIMRA, Windsor, Conn., lacks data on the number of empty nesters with life insurance, other data indicate empty nesters may be short on coverage.

Married households make up 51 percent of all U.S. households, according to the U.S. Census Bureau. Plus, married households typically have the highest household incomes. This group represents over 80 percent of the top two quintile income groups and 85 percent of the top 5 percent of household incomes.

So there is a better than average chance that your empty nester clients may need some extra life insurance coverage—particularly if their net worth could be hit by pending changes in the estate tax rules in 2011.

Nevertheless, more than half of all married men and women lack life insurance coverage, according to LIMRA. Only 41 percent of married men and 45 percent of married women have permanent life insurance. Just 35 percent of married men and 37 percent of married women have term life insurance.

Adam Sherman, CEO of First Trust Financial Resources, Philadelphia, says the typical empty nester household that buys life insurance has a net worth of at least $500,000. The life insurance may be used to replace lost income in case the husband or wife were to die early. Or, it may be used to provide for their children when they’re gone.

Affluent couples buy life insurance for wealth replacement or to cover future estate taxes. Unless Congress acts in 2010, the federal estate tax was slated to resume on estates valued at just $1 million. But Sherman expects Congress to restore that threshold to between $2 million and $3 million.

The affluent use second-to-die life insurance proceeds to pay estate taxes. The second-to-die policy is put into a life insurance trust to avoid estate taxes. This way, estates pass tax-free to the surviving spouse. But when the second spouse dies, insurance proceeds should cover the estate tax bill.

Using life insurance to cover estate taxes isn’t cheap. Sherman says a 65 year-old in good health would pay annual premiums of about $20,000 per $1 million of permanent insurance coverage.

In addition to high premiums, registered reps need to remind clients that first-year commissions deducted from their premiums can run more than 50 percent. And over the years, trailing commissions and insurance charges also are deducted from the premiums. Plus, state premium taxes are factored into the cost of the life insurance policy.

Sherman says he also sees empty nesters between the ages of 55 and 65 using permanent life insurance as part of their investment portfolios. They can borrow against the cash value tax-free at near-zero interest rates as a source of income.

Shawn Mauser, assistant director of life products at Northwestern Mutual, Milwaukee, says empty nesters in business partnerships often use life insurance in buy-sell agreements.

A buy-sell contract is used for sole proprietorships, partnerships and closed corporations. The business interests of the deceased or disabled are sold via the life insurance proceeds, based on a predetermined formula, to the remaining member or members of the business.

Mauser also says that well-off clients not subject to estate taxes often buy life insurance to replace social security benefits during a so-called “black out period” that occurs when the recipient dies. This generally is the period between when the survivor’s youngest child turns 16 and when the widow or widower turns 60.

He adds that life insurance is often used to offset reduced social security survivor’s benefits. Those benefits may be reduced if the survivor is younger than the 66 to 67-year-old age required to obtain full social security benefits. Further reductions might occur if the social security recipient dies before getting salary increases that might have increased his or her benefits.

Weisbart says advisors may want to conduct an insurance-needs analysis to determine if more coverage is necessary. This examines current and future income and expenses. He recommends term insurance to cover the gaps because it is lower cost than permanent insurance, such as whole life.
http://registeredrep.com/newsletters/insuranceletter/empty_nesters_may_still_need_to_purchase_life_0921/

“In determining how much life insurance to buy, it is important to determine the need to replace ‘hidden’ income that is lost when an income-earning spouse dies,” he says. “Hidden income is money an employer contributes to an employee's 401(k) or similar savings plan, or to pay the premiums for a family's health insurance coverage. These savings plan contributions and subsidized insurance premium payments cost the employer thousands of dollars a year, a financial commitment that, in most instances, reverts to the surviving spouse.”

Evaluate life insurance needs

Years ago, when I first started in this business, there were two primary types of life insur-ance: whole life and term. Whole life was -- you guessed it -- bought primarily to provide benefits for your entire lifetime. Term insurance was purchased for a "term period" normally one to five years.

Over the years there have been so many different types of life insurance that have come to the market that I find many people confused about what they have, and therefore, what they should have.

A few points: First, it is clear that no one life insurance product can satisfy all needs and one does need to reassess their insurance requirements as their situation changes. For most families, the greatest need is when there are dependents and a mortgage. Term insurance is a great solution and can be purchased for as long as 40 years. But, what after that?

Second, there is always a need for liquidity at death, and life insurance is a great tool to provide dollars when they are most needed. Hopefully, most of us will live a long time, but even so, life insurance is a valuable asset. Proof positive is that at every funeral, an inevitable question is whether the deceased had coverage. Also, I have never had a beneficiary complain about having life insurance benefits.

Over the last 20 years, I have seen a lot of folks buy term insurance ,locking in rates for 15, 20 or even 30 years. With the economy being what it is , there is a realization that coverage is likely needed for a longer period of time, perhaps even for the rest of one's life. If so, one is well advised to restructure their coverage now, as health conditions could prevent continuing coverage beyond the term period without a very expensive and ever increasing premium. If you are healthy and need coverage beyond the current term period, you are well advised to buy new coverage right now.

There are a variety of permanent life insurance policies in the market. This includes whole life and variable and universal life. These policies are very sensitive to interest rates and market return. The result is that many policies have underperformed original projections, the result being a lapsing of the policy in the future or higher premium requirements.

Appellate Division discusses wiggle room for attorney's fees in PIP cases

Although the PIP statute allows attorney's fees in cases against a PIP insurer, such fees may only be awarded if a judgment is recovered from the insurer on the PIP claim. That rule has been generally understood to mean that an insurer can avoid attorney's fees by paying the disputed amount at any time, even after trial has begun. (Of course, attorney's fees can still be awarded on a 93A claim, but a violation of 93A is much harder to prove.)

In Metro West Medical Assocs., Inc. v. Amica Mut. Ins. Co., 2010 WL 3118636 (Mass. App. Div.), the Appellate Division discussed wiggle room for attorney's fees in a PIP claim.

Metro West alleged that it provided medical services to Cuevos, who was entitled to PIP benefits from Amica. Amica paid some of the bills but rejected the additional bills on the grounds that the services were unreasonable and unnecessary. A few weeks later Amica sent a check for the amount it had originally rejected. Metro West's attorney returned the check and demanded payment for attorney's fees under the PIP statute.

The court stated that it would not be inconsistent with prior case law "to require that the insurer on the § 34M [PIP] claim show more on summary judgment than simply that the bills have all been paid. It should also have to show that there is no genuine issue of fact concerning whether it had a valid reason not to pay, and that it paid an invalid claim for reasons unrelated to its merits, for example, to avoid the cost of litigation or to remove a potential liability off its books."

The court held open the possibility that an insured could reject a tender of late payment from an insurer. "In this light, a check for the balance of bills could be viewed as an offer of settlement, which could be rejected, and not a tender of full payment."

The court granted summary judgment to Amica. Amica had submitted an affidavit in which its claim supervisor averred that the disputed bills were not reasonable and necessary and that Amica paid them as a result of a business decision. "That was sufficient, albeit without a lot to spare" to shift the burden to Metro West to show that there would be a genuine issue at trial concerning the necessity of the services and the reasonableness of the bill." Metro West failed to do so.

Insured really has to send a 93A letter

It is standard practice for insurers and insurance defense counsel to deny that a demand letter met the requirements for a 93A demand letter. 93A suits are dismissed from time to time because the demand letter failed to provide enough information for the insurer to assess liability or damages.

In Robotham v. LaFortaine, 2010 WL 3327826 (Mass. Super.), the Superior Court dismissed a suit against an insurer because a pre-suit letter did not mention at least one of the following six factors:

1) express reference to 93A;

2) express reference to the consumer protection act;

3) assertion that the rights of the claimants as consumers have been violated;

4) assertion that the insurer acted in an unfair or deceptive manner;

5) assertion that the insured anticipated a settlement offer within 30 days; or

6) assertion that the claimant will pursue multiple damages should the claim be denied.

Bedbugs and Property Insurance

For some reason bedbugs are in the news now.  Apparently there is an epidemic of infestations.  (Perhaps there is just an epidemic of reporting of infestations - who am I to say?)



If your place is plagued by pests, how does insurance respond?



Short answer?  It doesn't.



The standard home insurance policy excludes loss caused by insects.  That means that the damage caused by insects is not covered and the cost of extermination is not covered.



The standard commercial property form includes a similar exclusion.  Damage repair?  Not covered.  Extermination? Not covered.  Loss of income because of insects?  Not covered.



I understand a few insurers are considering providing coverage to restaurants and hotels.  I have yet to see a policy, though.

The Lost Art of Sportsmanship

Bad Examples for Millington Youth

Recently, I was informed that some youth sports officials would no longer accept assignments in Millington. Why?

Bad sportsmanship. Not on the players’ part. It’s the parents!

I was told that police have even been called to two recent Millington matches to separate parents of elementary-aged children. Really?

If the parents cannot or will not teach respect for authority and that winning is not everything, who will? So, for parents who do wish to teach their children the better (and biblical) way, I have compiled three examples. Discuss these with your children at your evening meal:

London Soccer: Leicester was losing 1-0 at half time. One of their players collapsed in the dressing room. Fearing that his life was in danger, the game was called off and the decision made to replay it three weeks later. At the kick-off of the replay the entire Leicester team stood to one side to allow the other team to restore their lead that they had had in the previous game. Leicester did however go on the win the game, and earned the respect of both sets of fans.

World Soccer: In 2000, Paolo di Canio displayed a moment of sportsmanship that was in contrast to other incidents during his career. He found himself in front of an open goal. But, instead of tapping in to score the winning point, di Canio caught the ball and signaled that an opponent was on the ground in writhing pain and needed urgent attention. This act earned him a standing ovation from supporters.

American Women’s Softball: The Western Oregon softball team’s Sara Tucholsky slammed what appeared to be a three-run homer over the centerfield fence, the senior's first in either high school or college. But Tucholsky wrenched her knee severely at first base and collapsed. Umpires ruled that a pinch-runner could replace Tucholsky and run the bases, but the rules said she would be credited with a single and only two runs would count. So, after being assured there was no rule against it, opponent Central Washington first baseman Mallory Holtman and shortstop Liz Wallace carried Tucholsky around the bases, allowing her to touch her good leg to each bases, completing her homer and adding a run to a 4-2 loss that eliminated the Wildcats from postseason.

It cost them the season, but no one regrets it. What do you think?

Compelling Attendance at a Future Care IME

Here is a useful case in compelling a plaintiff to attend an IME with an occupational therapist.

Moore v. Wakim, 2010 ONSC 1991 (CanLii)

The defendant sought to compel the plaintiff to attend a Future Care Cost Assessment with an occupational therapist. The plaintiff had already undergone an orthopedic IME and a psychiatric IME.

Justice Howden ordered the assessment. The plaintiff had served a Future Care Cost report alleging attendant care potentially exceeding $2,000,000. Justice Howden held that the court has inherent jurisdiction to exercise its discretion in ordering assessments and it is not necessary to show that the assessment is a "diagnostic aid". There is a line of cases which stand for the principle that an assessment by someone who is not a health practitioner (such as an occupational therapist) must be necessary as a diagnostic aid to assist a health practitioner complete his or her report. Justice Howden accepted that the report was vital to the final result in the case since future care was a principal issue.

Cases such as Moore are helpful in obtaining reports to respond to the plaintiff. Such reports can be ordered under s. 105 of the Courts of Justice Act as "diagnostic aids", but may also be ordered pursuant to the Court's inherent discretion.

Underinsurance coverage

I've been reviewing my auto coverage policy to make sure that I have the proper coverages for my family's circumstances. I've been looking specifically at underinsured coverage. Underinsurance coverage is when your own insurer pays your loss if you are injured due to the negligence of another driver who has insufficient insurance to cover your damages.

Underinsurance pays only if your underinsurance limit is higher than the limit of the other driver's liability coverage. So if you have $50,000 underinsurance coverage, the other driver has $100,000 liability coverage, and your damages are $120,000, your underinsurance will not kick in.

Even if your underisinsurance limit is higher than the other driver's liability limit, underinsurance will only pay the difference between the two limits. If you have $50,000 in underinsurance coverage, the other driver has a $20,000 liability limit, and your damages are $90,000, you will receive $20,000 from the other driver's policy and $30,000 from your own policy.

D&O ABCs

Directors' and officers' insurance is coverage against suits for wrongful acts by directors and officers. Lawsuits can be brought by stockholders, investors, employees, and other stakeholders who have been harmed by decisions and actions made by the leadership of an organization.



Directors are personally liable for damages their decisions cause. The by-laws of most organizations recognize this liability and protect directors with an agreement to indemnify any loss - the organization reimburses the losses of a director using its assets.



Some D&O policies refer to Sides A, B, and C coverage.



Side A insures the directors and officers directly for events that are not indemnified by the organization.



Side B reimburses the organization for the losses of directors and officers which are indemnified.



Side C protects the organization for suits brought against the organization.



So, if a director is sued and an award is made, the organization reimburses the director. The Side B coverage of the D&O policy reimburses the organization. (Some policies pay the director directly or pay the expenses directly.)



In some situations a director is not indemnified - either because of a law preventing such reimbursement (derivative actions for example) or because the organization is insolvent and has no assets. That's where side A comes in.



Side C protects the organization from direct suits.



A key issue is how the limits of insurance are allocated. Do suits against the organization (Side C) reduce limits available to pay directors? Can non-director suits use up the insurance available to directors?



Ask your insurance advisor.

Appeals Court holds that policy endorsement does not have to be grammatically correct to be effective; underwriters dance in streets

Michael Daigle was hired to put a new roof on a building in Maine, and to seal two windows. Lavigne visited the job site and, looking for Daigle, climbed up on scaffolding that Daigle's crew used to access the roof. When a portion of the scaffolding snapped, Lavigne fell and broke his neck.

Daigle had a general liability policy with Penn-America. Penn-America denied coverage for Lavigne's claim, and a declaratory judgment lawsuit followed. At issue whether an endorsement effectively precluded coverage for claims arising from roofing.

The endorsement contained preprinted language at the top of the form offering three introductory phrases, each with a box for a checkmark. The phrase that was checked read, "In consideration of the premium charged, it is understood and agreed that . . ."

The form then listed nineteen items, such as "premium" and "coverage," none of which were checked in their corresponding boxes. Below that were four alternative actions, such as "is corrected to read as listed below" and "is amended and changed to read as listed below." None of those boxes were checked.

Finally, typed in bold was the phrase "EXCLUDING ANY AND ALL CLAIMS ARISING FROM ROOFING."

Below that phrase were spaces for a date and initial, both of which were blank.

In Penn-Am. Ins. Co. v. Lavigne, __ F.3d __, 2010 WL 3307367 (1st Cir.), the United States Court of Appeals for the First Circuit held that under the law of Maine the endorsement effectively excluded coverage for claims arising from roofing.

The checked and added phrases read in their entirety, "In consideration for the premium charged, it is understood and agreed that EXCLUDING ANY AND ALL CLAIMS ARISING FROM ROOFING[.]" The court noted that that language is not a complete sentence nor a comprehensible fragment of one.

The court held, however, that the test for interpretation of an insurance policy is not whether the policy is grammatically correct, but whether it is reasonably susceptible of different interpretations. The court held that disregarding the endorsement, as urged by Lavigne, would not "construe the endorsement strictly against the insurer, but rather [] render it meaningless." It held that an ordinary person in the shoes of the insured would understand that the endorsement excluded coverage for claims arising from roofing.

Why Do Insurance Policies Include Exclusions?

Exclusions are a common bone of contention with insurance buyers. Reading some policies makes it seem like nothing is covered.



Actually, I like exclusions. They tell me what I need to worry about.



There are three reasons why something is excluded by an insurance policy:



1) The issue is insured by a separate insurance policy. Auto accidents are excluded by your home insurance policy because they are insured by your home insurance.



2) The exposure can be covered by this policy but the insurer wants to get a separate premium for the issue. Property insurance policies exclude damage by the failure of a sewer or drain. You can remove that exclusion if you are willing to pay an additional premium.



3) Exposures are not insurable due to matters of public policy, insurer reluctance, or reinsurance restrictions. Flood is excluded by most property insurance policies. Some insurers will add the coverage back for an additional premium. Most are unwilling to provide flood coverage to properties in a flood zone due to the heightened risk of loss inherent to the property. That's why most flood insurance is offered through a US government program - only the government is willing to insure an exposure of the nature of flood.



Class dismissed.

You Do Not Have, For You Do Not Ask

You Do Not Have, For You Do Not Ask

In a legal case involving a work-related injury, I had a letter from the other attorney stating the “maximum” that they would ever pay. The only way that would be increased is in the unlikely event that one of the two treating doctors changed their final rating.

Again, it is rare for a workers compensation doctor to change his rating, but asked both of them asked anyway. One of them did not change it, but the other did. The increased rating led to a settlement well in excess of the “maximum” that was named earlier.

How often would people work with us if we kindly but firmly asked for what we would like? The Bible reminds us “we have not for we ask not.”

This principle also applies to our marriages and other relationships.

In the church or workplace, how many times are we doing things just because “They have always been done that way.”

For instance, what a husband and a wife each feel is “romantic” virtually never match up. That is why it is so important to let your spouse know what you need and not have them just guess.

The best illustration is an old story about a couple coming home late from their 50th anniversary party. Fifty years of raising kids, keeping house and making snacks. He offers to make sandwiches. He lovingly gives her the one made with the heelpiece from the end of the loaf.

She explodes, “For fifty long years you have given me the heel piece of bread and I am just sick of it!”

He looks saddened, and softly says, “But that has always been my favorite piece.”

Communicate, and never give up! We have not for we ask not.

_________

See more of Mr. Peel’s articles on insurance-coveragelaw.blogspot.com. Mr. Peel may be available to speak to your church or club. Contact PeelLawFirm.com.

Accident Benefits: Application Forms Not Needed

The following blog entry was contributed by Alexandra Lacko, articling student. She will be making regular contributions to our blog in the coming weeks.

In ING Insurance Co. of Canada v. TD Insurance Meloche Monnex, [2010] O.J. No. 3549 (C.A.), the Court of Appeal for Ontario recently answered a question on what triggers an insurance company’s obligation to pay accident benefits.

The question answered in this case was whether forms completed by a chiropractor who treated the claimants and sent the forms to ING, amount to “completed applications for benefits”, thereby triggering ING’s obligation to pay benefits.

J.A. Gillese held that “an application for accident benefits need not be on a certain form in order to be valid - it need only provide sufficient particulars to reasonably assist the insurer with processing the application, identifying the benefits to which the applicant may be entitled, and assessing the claim.” She further stated that the arbitrator was correct to find that ING had failed to take reasonable steps to obtain the necessary additional information from the claimants.

The four claimants were injured in a motor vehicle accident and were all treated by the same chiropractor for treatment of their injuries. The chiropractor forwarded the four forms to ING because she said she had seen ING’s contact information in her file and wanted to receive payment for the services she had provided to the claimants.

The forms indicated they were accident benefit claims and provided a claim number, policy number and the date of the accident. Each claimant’s full name, address, telephone number, gender and birth date was filled out.

ING tried to contact the claimants based on the information in the forms and found that the telephone number was out of service. ING received a cell phone number for one of the claimants from the doctor. The claimant was reached briefly but did not call ING back. As well, an ING adjuster sent letters to each of the claimants, but all of the letters were sent to one address which was no longer the address of any of the claimants. ING did not receive responses to any of its letters, and ING was not contacted by any of the claimants. The claimants did not send ING applications for accident benefits in OCF-1 Forms. ING closed the file for the four claimants on July 20, 2007.

On July 25, 2007, TD opened accident benefit claims files for the claimants and received four OCF-1 Forms from the claimants’ authorized representative. ING and TD disagreed about which had been the first insurer to receive a completed application for accident benefits within the meaning of s. 2 of O. Reg. 283/95 to the Insurance Act, R.S.O. 1990, c. I.8.

The matter went to arbitration to be determined, in which the arbitrator held that ING was responsible for the payment of benefits because the forms from the chiropractor constituted a “completed application for benefits”. ING’s application to the Superior Court was dismissed. The Court of Appeal also dismissed the appeal.

Superior Court applies Boston Gas rule to asbestos case

A little more than a year ago the Supreme Judicial Court adopted in Boston Gas Co. v. Century Indem. Co., 454 Mass. 336 (2009) pro rata time-on-the-risk allocation for long tail losses.

In New England Insulation Co., Inc. v. Liberty Mut. Ins. Co., 2010 WL 3219436 (Mass Super.), Judge Fabricant of the Superior Court applied that rule to an asbestos case. Although her decision does not discuss the facts, one can infer from reading it that a company that (for reasons not addressed by the court) does not have significant insurance available and was a "relatively minor contributor to the injury" is being hit with a large portion of the damages due to the insolvency of other companies.

U.S. District Court adopts broader definition of "part" in collapse coverage

A wall in a building in Holyoke owned by Puerta de la Esperanza settled between six and ten inches, with resulting damage to floors, walls, and plumbing fixtures. The settling was caused by the collapse of a load-bearing brick pier.

Puerta de la Esperanza requested coverage from its insurer, Middlesex, who sought a declaratory judgment that the pier's failure was not a "collapse." The policy defined collapse as "an abrupt falling down or caving in of a building or any part of a building with the result that the building or part of the building cannot be occupied for its intended purpose[.]"

The pier was a component of the building but not an area of the building. Middlesex argued that the word "part" refers only to a physical area but not a structural component of the building. Puerta de la Esperanza argued that the term "part" can mean either an area or a component of the building.

In Middlesex Mut. Ass. Co. v. Puerta de la Esperanza, LLC, ___ F. Supp. 2d ___, 2010 WL 2639859 (D. Mass), the United States District Court adopted the broader definition of "part," and held that there was coverage because the pier, a component of the building, collapsed.

Jury awards $12 million against car owners who removed driver from their auto insurance policy

Andrew Caplan of Gilbert & Renton, LLC brought to my attention yet another cautionary tale about why adequate insurance is important. In this article Massachusetts Lawyers Weekly describes a case, Silverio v. Gentile, in which a $12 million jury verdict was awarded in a motor vehicle accident suit in which the defendants did not have auto insurance. (The link to the article will only work if you have a password for the Lawyer's Weekly website).

According to the article, Vittorio Gentile, Jr., 26 years old at the time, was driving his grandparents' SUV when he caused a head-on collision for which he has been found criminally responsible.

The jury found that Gentile's grandparents were liable, because they allowed him to drive the car after they were aware of his extensive driving record. Gentile had been hit with so many surcharges that the grandparents had removed him from their insurance policy even though other grandchildren were still covered and permitted to use their vehicles. The jury found that the grandparents were negligent in their failure to secure the car from Gentile because they routinely left the keys out in the open. The plaintiffs convinced the jury that Gentile had their tacit consent to use the vehicle.

Like the case I posted about here, the injuries in this case were tragic. The plaintiffs were two brothers, Joseph and Douglas Homsi, in their 60's. Before the accident Douglas acted as a caretaker for Joseph, who has mental disabilities. In the accident Joseph suffered broken bones and internal injuries. Douglas incurred more serious injuries, and was left unable to breathe, eat, or speak on his own.

Because Gentile is not covered by insurance and the grandparents were found negligent, if the $12 million verdict stands they will have to pay it out of their personal assets. Early in the case plaintiffs' counsel placed an attachment on their real estate, including their home. Plaintiffs' counsel also obtained an injunction to keep the grandparents from transferring their assets.

The moral:

1. Make sure that anyone who will drive your car is covered by your insurance. Under the standard Massachusetts auto policy, you can lend your car to a friend for an afternoon, but if your friend regularly drives your car they must be added to your policy. Doing so will not affect your premiums if your friend has a clean driving record.

2. Don't drive drunk.

3. Don't let anyone use your car who will drive drunk.

creation v evolution - missing link?? how bout a missing chain!?!?

MAKING A MONKEY OUT OF YOU?

If you believe in “monkeys to man” evolution, it would be logical that a “missing link” between man and ape would have been found by now. Of course, many are still looking for the missing link-- however, they might be better off looking for the missing chain!

However, creationists have no fear that any missing link will ever be found. You see, man is the crown of all creation, not a mere accident of chance plus time. Ape bones are just ape bones. Human bones of any age, are just human bones, much to the consternation of evolutionists. They need fossils but they cannot find them.

So, to make a monkey out of you, there are but three ways:

1) Try to find apelike qualities of fossilized human bones;

2) Try to find humanlike qualities of fossilized ape bones; or

3) Just mix up the human and ape bones.

Chart of some Supposed “Missing Links” that try to make a man from a monkey or vice versa:

Name:	Date:	Description:	Initially Called:	Turned Out to Be:
“CRO-MAGNON MAN”	1868 on	Bones found in painted caves in France	“The oldest humans, 15,000 to 37,000 years old”	Men. Really decent artists too.
“NEANDERTHAL MAN”	1856 on	Bones found initially in Germany, since throughout Europe & Middle East	“The oldest humans, 600,000 to 25,000 years old”	Men. Appearance like Aborigines of Australia, but with arthritis & rickets suggesting an ice age life.
“NEBRASKA MAN” Hesperopithecus	1922	Tooth found on a ranch.	“a hominid halfway between JAVA MAN and NEANDERTHALS”	A wild pig tooth. Really.
“PILTDOWN MAN” Eanthropus dawsoni	1912	Human like skull with an ape like lower jaw and tools nearby.	“500,000 year old ape-man / hominid.”	FAKED. The old human skull and modern ape jaw were dyed, sanded and filed to fit. “Modern science” was fooled for over 40 years!!
“JAVA MAN” Pithecanthropus erectus; Homo erectus	1891-98	Apelike skullcap, humanlike femur & 3 teeth found over several years and 45 feet. Two human skulls found too, but he hid that till 1922.	“Oldest hominid remains ever found; a potential intermediate form between modern humans and the common ancestor we share with the other great apes.”	Skull and 2 teeth were from apes, one tooth form a human. Discoverer confirmed before death, it is not an ape-man.
“PEKING MAN” Sinanthropus pekinensis; Homo erectus	1921-29	2 teeth initially. Eventually 30 skulls, some jaw and teeth found. Oddly, found in piles in ancient quarry where workers ate monkey brains. Oh, and all skulls were bashed in the rear.	Based on 2 teeth initially called a “hominid.”	Classified as apes. either a “macaque” or a “baboon.” (All bones have been missing for 60 years.)
“LUCY” Australopithecus afarensis	1974	3.6 foot tall apelike bone pieces, scattered on a slope	Said to be 3.2 million years old, an apelike skull in an upright walking “hominid”	Still classified as an “ape”
“ARDI” Ardipithecus ramidus	1992, but not announced till 2009	4 foot tall apelike bone pieces, in poor condition, along with over 6000 “animal bones” nearby	Said to be 4.4 + million years old, an apelike skull, that climbed in an apelike manner, but could walk upright like a chimp, called “the oldest hominid”	Still classified as an “ape”

It takes a lot of faith to believe in evolution, since it is not scientifically repeatable and no human was there. Creation is not scientifically repeatable, but God was there. At least He said He was in the Bible.

What will you believe?

All prior articles in this series can be searched on insurance-coveragelaw.blogspot.com

Lucy’s remains.

Mandatory Mediation in Motor Vehicle Tort Claims

The Court of Appeal for Ontario has recently held that the refusal of an insurer to mediate a motor vehicle tort claim should attract cost consequences, per subsections 258.6(1) and (2) of the Insurance Act. See Keam v. Caddey, 2010 ONCA 565.

Significantly, the insurer had refused to mediate on the basis that it was of the opinion that the plaintiff's injuries did not meet the threshold test under the Insurance Act. Also significant was the fact that the Court of Appeal said that the offer to settle made by the insurer prior to trial, although a low offer of just $17,500, was an acceptance by the insurer that there was a potential claim to litigate - and therefore mediate.

The consequence of this decision might be to limit offers to settle in cases where insurers would otherwise make a low offer to settle in order to avoid the costs of a trial, especially where threshold is an issue. The other consequence, of course, is that insurers now will have to undertake the expense of mediation even where there is little or no chance of reaching a settlement.

The facts of the case are: After examinations for discovery, plaintiff's counsel wrote counsel for the insurer asking if they could mediate the claim pursuant to s. 258.6 of the Insurance Act. The insurer ignored the first letter. Plaintiff's counsel wrote again. In both letters plaintiff's counsel referred to costs consequences following trial if the insurer failed to participate. The insurer then responded that it would not mediate because it did not think the plaintiff's injuries met threshold. A year later, the insurer made an offer to settle for $17,500 plus interest and costs. The plaintiff won the trial and plaintiff's counsel sought substantial indemnity costs against the insurer for the failure to mediate, which the trial judge refused.

The Court of Appeal, however, found that the insurer had failed to comply with its statutory obligation to mediate per s. 258.6. The appropriate costs consequences were a "significant remedial penalty" in the amount of $40,000 in addition to the costs already awarded by the trial judge for the usual partial indemnity costs award.

Appeals Court affirms $1,007,342.58 award against Arbella for unfair settlement on $20,000 policy

A cautionary tale for adjusters:

On August 30, 1998 Angelina Dattilo was seriously injured when her car was struck by a car driven by Anthony Caban. Caban had an auto insurance policy with Arbella with a per person limit of $20,000.

Both Dattilo's attorney and Arbella investigated the accident and concluded that Dattilo was not negligent. It was clear that the damages significantly exceeded the policy limits.

Dattilo's attorney sent a letter to Arbella demanding that Arbella tender within 30 days the $20,000 policy limit to Dattilo. The attorney offered to release Caban and Arbella from all additional liability in exchange for the $20,000.

Other than a voicemail message left on the attorney's answering machine, Arbella did not respond to the demand letter for five months. Nor did it notify Caban of Dattilo's demand and offer to release additional liability.

Seven months after the demand letter Arbella offered to settle Dattilo’s claims for $20,000 in exchange for a release. Dattilo refused.

Several months later Dattilo and Caban agreed that a judgment was to be entered against Caban for $450,000. Caban assigned to Dattilo his rights against Arbella for unfair settlement practices. Dattilo agreed not to execute the judgment against Caban. Arbella was aware of the negotiations and waived in writing any claim against Caban for noncooperation under the policy.

Dattilo then sent a 93A demand letter to Arbella demanding $1.4 million to settle the unfair settlement practices claim. Arbella responded with an offer of $23,966. After a jury waived trial, a Superior Court judge awarded Dattilo $1,007,342.58, which included compensatory damages, multiple damages, interest, and costs. Arbella appealed.

In Gore v. Arbella Mut. Ins. Co., 77 Mass. App. Ct. 518 (2010), issued last week, the Massachusetts Appeals Court affirmed the verdict. The decision contains a good review of 93A liability and damages. Of note, the court held that the judgment agreed to by Caban and Dattilo constituted a judgment, not a settlement, for the purpose of calculating 93A damages. (As I discussed here, where a 93A case goes to verdict the actual damages is the verdict amount. Where a 93A case settles, actual damages is lost interest on the settlement.)

It is also worth noting that the court was not unsympathetic to Arbella's claim that it needed more time than the initial 30 days given to it to determine how to proceed. The court noted that the issue was that Arbella never communicated that need to Dattilo's attorney.

Scott's Rules of Insurance - Rule 6 - Your Relationship With Your Agent Is Key

Insurance wiz Howard Candage told me twenty years ago that the most important part of the insurance transaction is an insurance buyer's relationship with his insurance agent.  It must be based on mutual trust and respect.  You should view your agent as a professional, an advisor, a confidant.  If trust and respect are at all missing, it's time to start looking for a new agent.

Court rules that insurer is not liable for low settlement offer in low impact case, or for not conceding liability

One constant area of contention between personal injury attorneys and insurers is damages from low impact collisions. A low implact collision is one in which there is contact between the vehicles but it is so slight that it often results in little or no damage to the cars. Plaintiffs' attorneys contend that despite the seemingly minor nature of the accidents, severe back injuries can nevertheless result. Insurers are dubious of such claims.

In Lanton v. Lin, 2010 WL 3038719 (Mass. Super.), Superior Court Judge Fremont-Smith held that an insurer did not violate Mass. Gen. Laws ch. 93A by offering $1,500 to settle a low impact case, especially where the jury had found that the plaintiff had not suffered any damages.

The plaintiff contended that the insurer had violated 93A on a second ground, because it did not concede liability even though the plaintiff had been rear-ended. That failure caused the plaintiff to incur additional attorney's fees to prove that the insured defendant was at fault. Judge Fremont Smith ruled in favor of the insurer on this issue as well. He held, first, that there were no damages because liability was not contested at trial and, second, that the plaintiff had not demanded in his 93A demand letter that the insurer concede damages and so it had no obligation to do so.

Employee or independent contractor?

Ligocki v. Allianz Insurance Company of Canada (2010), 100 O.R. (3d) 624 (S.C.J.)

The issue on this motion was whether the plaintiff was an employee or an independent contractor for the purpose of calculating IRBs.

Prior to the motor vehicle accident the plaintiff worked as a personal support worker for an elderly man, Mr. Deluca. Although he had initially been employed by the Victorian Order of Nurses, when it discontinued services, the plaintiff entered into an oral agreement to continue working for Mr. Deluca. The plaintiff conducted himself as if he was an independent contractor by issuing invoices and identified himself as self-employed to the accident benefits adjuster.

The Court held that despite the plaintiff's self-identification as an independent contractor, the facts indicated he was an employee, since he did not provide supplies or equipment, reported to Deluca, and did not undertake any financial risk.

One would have thought that the clear, repeated assertion by the plaintiff that he was an independent contractor would have been determinative of the issue. This decision seems to bring increased uncertainty into this area. It remains to be seen whether the decision will be appealed.