Articles Posted in Insurance & Bad Faith Claims

In an insurance bad faith case, a retired judge, sitting as an arbitrator, has found a willful scheme to cheat the insured and imposed punitive damages against a health insurer for post-claim underwriting. Post-claim underwriting is a scheme where an insurer facing a claim for benefits “investigates” the policy application and rescinds the policy on the ground that some important information was not disclosed by the insured. Post-claim underwriting is discussed in more detail in an earlier article by the Alaska Personal Injury Law Group.

In the case reported upon here, the insured incurred medical bills of more than $125,000 for breast cancer treatment. While she was still being treated, the health insurance company did its post-claim underwriting and cancelled her policy. The poor insured was left facing not only a life-threatening event, but also huge medical bills with no way to pay them.

The ultimate unfairness was that this policy had been sold to her to replace a policy that unquestionably would have covered these bills. She did not need this new, replacement policy but the insurance company’s agent sold it to her anyway. The most likely reasons were to generate new business for the company and a commission for himself. It was the insurance company’s own agent, not the insured, who had filled out the application that the insurance company later used to cancel the coverage. None of that caused the insurance company to hesitate in the least when it came time to save $125,000 by canceling the policy.

Wouldn’t it be great if you could get paid for making a promise to do something in the future, but when the time came to keep your side of the bargain you could cancel the contract and not have to pay? The person you made the promises to might be upset at paying you for all those years for nothing, but you get free money! Ignoring the moral and ethical flaws with the scheme, it would be a great way to improve your financial position. Of course, that’s how insurance companies often operate these days. One tool they use is “post-claim underwriting.” It is a terrible, dishonest practice that reneges on the insurer’s promises when the insured most needs the benefits promised in the insurance policy.

What is post-claim underwriting? In its simplest form, an insurance company takes a cursory look at your application, sells you a policy, collects premiums until you make a claim, and then does an “investigation” to determine that they should not have sold you the policy in the first place. Instead of doing a true underwriting analysis before issuing the policy, the insurer waits until after you make a claim and then decides you tricked them into insuring you. The insurance company then rescinds the policy, claiming you misrepresented something or failed to disclose something on your application for the insurance.

From the insurer’s perspective, it’s the perfect scam. The insurer gets to collect premiums on a policy, but does not have to pay the benefits promised. Of course, it is also a bad faith practice, a flagrant breach of the covenant of good faith and fair dealing that is part of every insurance policy, and may be a crime. Unfortunately, those problems will not deter an insurer who cares more about its bottom line than for the rights and interests of its insureds.

We recently reported on the CNN study that found insurers like Allstate and State Farm have systematic programs to force their insureds to settle for less insurance proceeds than the insurance company promised them in their insurance policies. CNN concluded that these programs have resulted in billions of dollars of excess profits for insurance companies. Allstate alone has given $23 billion of profits to its shareholders in only twelve years of using such a program.

How do those programs work? Let’s look at Allstate’s program, which it calls DOLF — Defense of Litigated Files. Allstate makes the insured a lowball offer. If the insured refuses to settle for less than the insurance benefits she bought, the claim will be litigated. In fact, Allstate will send a letter telling the insured that this is the only offer they are going to get and that, if the lowball offer is not accepted, Allstate will vigorously litigate the claim. So, instead of the insurance benefits she paid for, the injured insured is threatened with years of litigation to get what she was promised and deserves.

There is a theoretical possibility that Allstate will increase its offer, but only if the insured provides documentation of some “value changing event.” An example would be a doctor’s report that the insured needs surgery. But even if there is a significant change, the system is tilted against you. In one case, Allstate representatives testified at trial that new information about a significant value changing event did not go back to the original adjuster. Instead, it went from the Allstate defense lawyer to the “gatekeeper” in the Allstate claim office. The gatekeeper decided the adjuster did not need to know about the new information. That made it impossible for the adjuster to reevaluate the claim on the basis of the new evidence. Such a reevaluation was required by the insurer’s duty of good faith and by state claim handling regulations.

We at the Alaska Personal Injury Group have seen it again and again with insurers, and have documented the practices in this blog: insurers mercilessly attempting to reduce costs by withholding policy benefits owed to policyholders, all the while justifying outlandish premium rate hikes by claiming that costs are too high. As insureds, we have almost become jaded to the extraordinary level of intrusion by insurers into our personal lives as they wage this campaign. For example, we think nothing of having to wrestle with an insurer who challenges our physician’s prescription for medication-the insurer intrudes into our relationships with our physicians as if it belongs in the room with us and our physician, challenging the physician’s choice of medication, the length of prescription, and even whether we should have the medication at all.

One of the most outrageous moves by health insurers yet is a letter Blue Cross of California recently sent to physicians asking them to “rat out” (my wording) their patients who might have preexisting medical conditions, which, of course, would then allow Blue Cross to cancel the patient’s coverage for the treatment sought from the physician. WellPoint, Inc., the Indianapolis-based company that owns Blue Cross of California justified the move because it was (and where have we heard this before?) trying to hold down costs. This is apparently a justification for intruding upon one of the most sacred of relationships, that of physician and patient.

Blue Cross is actually forwarding to the physician the patient’s insurance application (!) along with the letter instructing that:”Any condition not listed on the application that is discovered to be pre-existing should be reported to Blue Cross immediately.” To its credit, the California Medical Association contacted California insurance regulators immediately, explaining that the maneuver by Blue Cross was “deeply disturbing, unlawful, and interferes with the physician-patient relationship.”

An 18-month study by CNN has confirmed that most of the major insurers, lead by Allstate and State Farm, are engaging in institutional bad faith claim practices. The study found that insurers, including Allstate and State Farm, have not been treating their insureds fairly. Instead of fair treatment for insureds, they follow a strategy of “deny, delay, defend.” Deny the claim, do whatever they can to delay the claim, and defend the resulting lawsuit to the hilt.

The CNN findings focused on cases involving soft tissue injury and minor impact. Insurers have their own euphemisms for this type of claim, such as Allstate’s MIST, which stands for Minor Impact Soft Tissue. The personal injury attorneys at the Alaska Personal Injury Law Group do not handle MIST cases, but we have seen the same tactics employed in Alaska in cases that are neither minor impact nor soft tissue cases. We also handle bad faith cases that arise when insurers like Allstate and State Farm break the promises they made when they took the insured’s hard-earned premium dollars.

CNN’s investigation found that the insurers’ hardball approach to claims is the result of programs developed for insurers like Allstate and State Farm by The McKinsey Company. The Alaska Personal Injury Law Group and other lawyers throughout the country have been trying to get Allstate’s McKinsey documents into the hands of the public, but Allstate has been successful in obtaining orders that keep the documents hidden. As we reported earlier, insurance regulators in Florida may be the public’s best hope of seeing the McKinsey documents. CNN did confirm, however, the existence of the formal program where the good hands people at Allstate are told to use boxing gloves on the insureds who refuse to accept Allstate’s lowball offers.

As reported in earlier articles here, Allstate Insurance companies are under intense scrutiny by insurance regulators and legislators in Florida. The state officials suggest Allstate is gouging consumers with unjustified requests for rate increases as high as 42%. It is instructive to contrast the tale of woe Allstate is telling those Florida insurance officials to what Allstate tells investors. One thing Allstate told investors was that it has benefited from the lack of major hurricanes in 2006 and 2007.

The President and CEO of Allstate also touted how Allstate had reduced its hurricane exposure. This was partly by canceling hundreds of thousands of homeowners’ policies. Allstate also bought $900 million a year of reinsurance, which was a much larger amount of reinsurance than it had carried in the past. Undoubtedly that purchase ties in with concerns of Florida legislators that Allstate has wrongly failed to lower premiums after taking excessive advantage of the new Florida reinsurance program. That publicly funded program allows Allstate to shift the risk of major losses onto the citizens of Florida, many of them the same citizens who had their homeowners’ coverage cancelled by Allstate. The regulators and legislators believe Allstate has greatly reduced its hurricane risk by canceling most of its homeowners’ policies, and reduced its risk even further by foisting the risk onto the Florida reinsurance fund, so the huge rate increases Allstate requested are not justified.

The President and CEO also told investors that Allstate has done extremely well on the financial front for many years. In little more than a decade, Allstate has raised dividends an average of 11.7% annually. In that same timeframe, Allstate repurchased more than 40% of its outstanding common stock at a cost of almost $16 billion. In sum, those figures mean Allstate has returned more than $23 billion of “excess” capital to shareholders in less than twelve years. To put those outsized profits into perspective, Allstate’s market capitalization when it went public was only $19 billion. Allstate is still extremely well capitalized, even after giving $23 billion, almost $2 billion a year, to its shareholders.

As everyone knows, Florida suffered significant hurricane damage in 2004 and 2005. Since then, however, Florida has avoided major hurricane damage. Thus, Allstate has avoided significant hurricane losses over the last two years. In addition, new laws were passed in Florida to use billions of dollars of public funds to help insurers like Allstate avoid major hurricane losses . Seems like good news for property insurers like Allstate.

But despite that good news and the greatly reduced risk, Allstate’s Florida insurance companies are seeking rate increases of up to 42%. How do Allstate’s actuaries justify that huge increase in insurance rates when their risk has gone down? Global warming!

Florida regulators and legislators were shocked to discover Allstate is using a global warming model to justify these huge rate increases. The first reason they are shocked is that the global warming model is not approved by the state insurance regulators. There is a model that was approved by the Office of Insurance Regulation, but Allstate is not using it. They were also surprised that Allstate is using a short-term model that only looks at what might possibly happen in the next five years, rather than the approved model which looks at the long term history and actual trends of hurricanes. In addition, there is wide disagreement among scientists whether there is any basis to believe there will be more or worse hurricanes in the next five years. Finally, state officials are concerned because Allstate’s model is based on Allstate’s assumptions that hurricanes in the next five years will be more severe and more frequent than the historical data suggest. It’s the old “garbage in, garbage out” scenario. Make the correct assumptions and the computer will spit out whatever result you want.

Allstate continues to be investigated for bad faith claim handling practices, wrongful termination of policies and excessive rates. Regulators and the Florida legislators who grilled Allstate representatives earlier this week have discovered that Allstate terminated the homeowners’ policies of thousands of insureds who had their auto coverage with an insurer other than Allstate. Those seeking answers contend that Allstate has been less than candid. One Senator said, “I haven’t seen so much bobbin’ and weavin’ since Muhammad Ali did the rope-a-dope.” Listen here.

Why did Allstate cancel those folks, but not cancel similar Allstate insureds who also had Allstate automobile insurance? Because Allstate’s auto insurance business is far more profitable for Allstate than its property insurance business, particularly in Florida. In typical Allstate double-speak, however, Allstate claims to have done it for the convenience of the terminated insureds-that way the terminated insureds would not have to deal with two insurance companies. Allstate said, in effect, “we terminated your policy for your own good!”

Over the last couple of years, Allstate has reportedly reduced the number of homeowners’ policies it writes in Florida from over 700,000 to less than 300,000. Those insureds were supposedly cancelled because they were high risks for hurricane damage. Allstate also reduced its risk even further by buying cheap reinsurance from the fund the state created. Having culled those supposedly bad risks and shunted off a lot of the loss exposure via cheap reinsurance, Allstate still claims it needs a rate increase of 42%. Regulators and legislators want to know why.