Mr. O’Donnell recently successfully concluded an insurance “bad faith” case against Allstate Insurance Company. After a two-week trial, the jury found that Allstate had failed to disclose and pay Mr. O’Donnell’s client $100,000 in Underinsured Motorist Coverage that was available from a prior class action settlement. The jury not only awarded Mr. O’Donnell’s client the underlying $100,000, but also awarded an additional $300,000 for financial distress resulting the delayed payment of the claim. The jury further found that Allstate had acted with reckless disregard of its insured’s interests. In Alaska, a jury can only hear evidence of the defendant’s financial condition, and determine the amount of a punitive damage award, after first finding that the plaintiff is entitled to an award of punitive damages. In that situation, the jury reconvenes to hear evidence of the defendant’s financial condition. The case settled here for a confidential amount the morning that the punitive damage phase of the trial was to begin with plaintiff’s CPA expert witness about to testify that Allstate made $2.4 billion last year. Mr. O’Donnell has handled, and continues to handle, numerous insurance “bad faith” cases against Allstate. The attorneys at the Alaska Personal Injury Law Group, including Mr. O’Donnell, have extensive experience with claims against insurance companies for failing to fulfill the special fiduciary duties they owe their insureds.
Over the years we have handled numerous “insurance bad faith” claims against auto insurers. These cases often involve situations where, following a serious auto accident, the insurance company fails to disclose and pay all the insurance coverage that is owed to the injured insured. We have seen that auto insurers often treat insureds as if they are adverse parties. They leave it up to the injured person to figure out which insurance policies apply. They leave it up to the injured insured to figure out what benefits they are entitled to under a 30-page or longer fine print contract. This approach to claims handling is both improper and illegal. Insurance companies owe their insureds an obligation of good faith and fair dealing. Alaska insurance regulations specifically require insurance companies to “fully disclose” to insureds “all relevant benefits and other provisions of coverage under which a claim may be covered.”
Determining what insurance policies and what coverages apply is often a complicated task, particularly in the event of a death or a serious injury. In a recent case, Allstate’s handling of a claim where a woman’s husband died in a head-on collision came to our attention many years after the fact. Our investigation determined that Allstate had denied underinsured motorist (UIM) coverage to the widow under a second household auto policy through a tortured and self-serving “interpretation” of the policy that the Allstate claims managers never disclosed to the widow. Indeed, Allstate never even told the widow (who was not represented by an attorney) about the possibility of coverage under this policy. After Allstate’s conduct came to light and we filed suit, the court granted summary judgment in the widow’s favor ruling that a “coverage determination based on arcane legal doctrine [followed by Allstate] is at odds with Alaska’s reasonable-lay-interpretation doctrine, which expresses clear Alaskan public policy.” The moral of the story is that unfortunately there is a need, in the event of a serious injury or death, to verify that you are actually receiving the “Good Hands” treatment your insurer promised and is required to provide as a matter of Alaska law.
The Alaska Personal Injury Law Group recently successfully resolved the claims of a client who was injured in a 2010 crash of a Dehavilland Beaver float plane at a remote fishing lodge is Southwest Alaska.
The crash occurred after the pilot failed to back-taxi an adequate distance on a lake before turning and attempting a takeoff run. Despite reaching his predetermined abort point without having achieved takeoff, the pilot continued toward the shoreline under full power and simply hoped for the best. The best did not occur and the plane slammed into the lake embankment under full power. Alaska Personal Injury Group attorney Neil O’Donnell successfully resolved the claim against the lodge and successfully negotiated resolution of the various lien claims by the client’s medical providers and health care insurers. This matter is one of the many aviation matters the Alaska Personal Injury law group has handed over the years. The practice group has extensive experience with aviation cases involving pilot error, inadequate pilot training, mechanical problems, and design defects.
Congratulations to my partner Mike Moody, and his co-counsel Dennis Mestas, for their excellent work in the Ennen v. Integon Insurance case. The Alaska Supreme Court recently held in Ennen v. Integon Insurance Corp., Opinion No. 6637 (1/20/12 Alaska), that insurance companies owe a duty of good faith and fair dealing to all their insureds, not just to the individual or the business which happens to be listed as the named insured on the policy. This is a very important decision. Insurance companies are liable for damages in tort when they breach their duty of good faith and fair dealing by, for example, hiding coverages from the insured, unreasonably low-balling the value of a claim, or unreasonably delaying or denying payment of a valid claim. This cause of action is called an insurance bad faith claim. It allows the insured to recover not just what the insurance company should have paid to begin with (before years of litigation finally made them do it), but also the additional damages the insured suffered in the meantime by not having the insurance policy benefits they should have promptly received from the insurance company. If the insurance company’s improper conduct was reckless or intentional, the insurance company may also be liable for punitive damages.
In two earlier blog posts, we discussed how pervasive this type of improper claims handling is. The first post discussed the results of an 18-month investigation by CNN which concluded that many insurance companies engaged in systematic bad faith claims handling. The second post discussed an American Association for Justice Report which showed that such hardball claims tactics had gone hand-in-hand with record industry profits.
The Ennen v. Integon Indemnity decision is extremely important in light of these problems because many insurance companies (including Integon and Allstate) have taken the position that they owe no duty of good faith and fair dealing to their insureds who are not the named policy holder. A motor vehicle insurance policy typically protects many types of insureds who are not the named insured on the policy. For example, permissive drivers are covered under the liability coverage for any accidents they cause and medical payments coverage if they are injured. If they are injured by the negligence of another driver, they may be entitled to uninsured or underinsured motorist (UM/UIM) coverage. The policyholder’s spouse and other resident relatives of the named insured and guest passengers are expressly included as insureds for UM/UIM coverage. If Integon’s (and Allstate’s) position had been accepted by the Alaska Supreme Court, they would have been insulated from bad faith claims by any of these insureds. Insurers in Alaska could have hidden policy benefits from these types of insureds; delayed their claims for years; or denied their claims entirely for no valid reason and faced no penalty whatsoever. If the insurance company got caught, it would only have to pay what it should have paid to being with.
Most individuals who call our office recognize they can recover damages when they have been injured through the negligence of others. The wrongful conduct could be any number of things: drunk driving, running a stop sign, speeding, crashing a plane, marketing a defective product, creating a dangerous work environment. They understand the defendant will typically deny he was negligent. They are not surprised when the defendant next argues that even if he was negligent, the plaintiff’s problems don’t really exist, or were caused by something else, or were all pre-existing anyway. They understand that the defendant will finally argue that even if he was negligent, and even if he did cause the plaintiff’s injuries, the resulting damages are nowhere as significant as plaintiff claims. Clients expect that if they ultimately prevail over all these defenses, they have won the war. Unfortunately, this is not necessarily the case.
Over the last decade, insurers and government agencies have become much more assertive in claiming priority repayment (“subrogation”) rights from individuals who have received insurance or government benefits and subsequently recover damages in a personal injury or wrongful death lawsuit. This is a marked change from the traditional common law. Historically courts put the interests of the injured person ahead of the interests of insurance companies and government programs under what is called the “made whole” doctrine. Under the “made whole” doctrine, an injured person is entitled to be fully compensated for his loss before the health insurance company that paid plaintiff’s medical bills is entitled to be repaid those expenses out of the proceeds of a lawsuit. For example, if a jury awarded a plaintiff $50,000 for medical expenses, $50,000 in lost wages and $50,000 for impairment, pain and loss of function, but the defendant only had $100,000 in insurance and no other assets, the plaintiff would receive the entire available $100,000 under the principle that insurance is first supposed to protect the insured.
Times have changed. Many health insurance policies and government programs have invested a great deal of effort over the past decade into re-writing policies and regulations in an attempt to abolish the “made whole” doctrine and limit other legal and equitable doctrines that place the interests of the injured person first. In general, they want to be paid first out of the funds you recover in your lawsuit, and they do not want to share any of the costs and attorney fees you incurred in producing that recovery. This has now become a very complicated area of the law. The rules that apply to one government program (Medicare) may not apply to other government programs (Medicaid, Veterans’ Benefits, Workers Compensation, etc.). The interpretation and enforcement of contractual terms in insurance policies is also subject to a set of specialized statutes, regulations and case authorities. Sometimes finding an attorney with expertise in these types of specialized “subrogation” issues is as important as finding an attorney who can handle the traditional part of your claim. Now obtaining adequate compensation in a personal injury or wrongful death lawsuit often requires fighting a “two front war.”
As noted in a recent post here, Allstate has instituted a systematic, nation-wide claims handling system designed to drive down the amount of money it pays on personal injury claims. That system came under review in a recent New Mexico case where five individuals sued Allstate for “low balling” their auto personal injury claims. The Court found that Allstate had violated fair claims handling requirements “by not attempting to effectuate . . . prompt, fair and equitable settlement[s],” “compelling each of the plaintiffs to litigate their claims through a jury trial to final judgment,” and improperly using the judicial system in “an attempt to delay or extort each of the plaintiffs into accepting less than the full value of their benefits under their policy.” The Court found Allstate’s conduct constituted “malicious abuse of process.” Martinez et. al. v. Allstate, Case No. D-0101-CV-200400963, County of Santa Fe, First Judicial District, oral order dated 11/13/09). This case illustrates that injured individuals often receive Allstate’s promised “Good Hands” treatment only if they accept Allstate’s “low ball” settlement offers. Otherwise they are subject to — as an Allstate consultant put it — the “Boxing Gloves” treatment. Be prepared to put on your boxing gloves when dealing with Allstate!
Over the last decade, Allstate and other insurance companies have adopted highly standardized claims handling systems designed to drive down the amount of money they pay on personal injury claims. These systems generally involve (1) reducing the percentage of injured individuals who hire an attorney by quickly contacting such individuals, building rapport with them, and making early (and low) settlement offers; (2) using main-office-controlled computer programs to provide low “recommended” claim settlement values to their adjustors; and (3) implementing a policy of vigorously litigating with injured individuals who do not accept the insurer’s low-ball settlement offers. For example, the Montana Supreme Court last year noted that there was a “high probability” under Allstate’s claims handling system that “an unrepresented claimant would receive less than a represented claimant.” Jacobsen v. Allstate, 215 P.3d 649, 659 – 60 (Montana 2010). Likewise, the federal district court stated in Wells v. Allstate, 210 F.R.D. 1, 4 (D. D.C. 2002), that “Allstate concedes that claimants represented by counsel receive settlements two to three times greater than those who proceed without counsel, and admits that the goal of [its redesigned claims system] was to reduce the level of attorney representation.” If anything, these observations are understated. Internal Allstate documents from that redesign effort state, for example, that “Opportunity [to save Allstate money] is driven by attorney involvement . . . Payments on represented claims is on average five times the size of uprepresented claims . . . Attorney representation can be reduced.” Insurance companies do not want to you to consult with an attorney for a reason, and that reason is to save them money.
Recent congressional testimony by the Legislative Director of the Consumer Federation of America (CFA) catalogued several major trends in the insurance industry over the past two decades. Most of these trends are extremely adverse to consumers including small businesses. The first trend is the “hollowing out” of the benefits provided in many insurance policies through more restrictive coverage provisions and expanding exclusions that are poorly understood by the insureds who purchase these legally complex documents. The second trend is that many major insurance companies have turned their “claims operations into ‘profit centers’ by using computer programs and other techniques designed to routinely underpay policy holder claims.” As a result, the percentage of each premium dollar that goes to pay claims has fallen dramatically over the past 20 years, producing “unprecedented profits” for insurance company shareholders and insurance company executives at the expense of the insureds. The full report can be found at:
Testimony of Travis V. Plunkett, Legislative Director, Consumer Federation of America, 7/29/08.
The Alaska Personal Injury Law Group has frequently warned injured Alaska consumers about various bad faith tactics used by insurance companies. A new study just released by the American Association for Justice documents many of the bad faith and fraudulent tricks and tactics insurance companies use to evade paying valid claims. Tricks of The Trade: How Insurance Companies Deny, Delay, Confuse and Refuse. All Alaskan consumers, but especially injured Alaskans making claims against an insurance company, need to read this revealing study.
The study details the bad faith tricks and tactics insurance companies use to delay and deny claims the policy requires the insurer to pay. It illustrates its findings with examples of tricks the insurers used against real people to deny their valid claims. These true stories involve outrageous conduct by insurance companies, reminiscent of John Grisham’s novel The Rainmaker. Unfortunately for the poor victims of this insurance company bad faith, the stories are not fiction. They illustrate well the depths to which insurers will stoop to enhance profits at the expense of the insured victims.
These sinister tactics are not limited to liability claims or automobile insurance. The horror stories include insureds who had their health insurance policies revoked in the middle of cancer treatment. The wrongful cancellations resulted in suspension of the critical treatment, delay in resuming crucial treatment, and the burden of unpaid bills totaling hundreds of thousands of dollars. Other true stories involve insureds who had their long term care policies revoked when they finally needed care, after paying premiums for the insurance for many years. In one instance, the family business had to be sold to cover the unpaid bills the insurance company wrongly refused to pay.
These horror stories are not isolated occurrences. Investigating whether an insurer engaged in wrongful post-claim underwriting to cancel health policies, California insurance regulators randomly selected 90 cases where Anthem Blue Cross cancelled policyholders who made a claim. In every single one of those 90 randomly selected cases, the regulators found that Blue Cross had violated state law in cancelling the policy. Study at p. 13.
Insurance companies use these same bad faith tactics to deny claims for damage for many different kinds of insurance. They are used on claims under homeowners’ policies, health insurance policies, long term disability policies, and others. The study names companies that engage in these bad faith schemes and gives specific examples of the bad faith, fraud, and the internal insurance company programs used to implement these tactics. Some of the companies discussed are Farmers Insurance Company, Allstate Insurance Company, State Farm Insurance Company, and AIG Insurance Company.
For example, Farmers Insurance Company had an employee incentive plan called “Quest for Gold” used to reward employees who met goals for low payments.
The Alaska Personal Injury Law Group has previously discussed some of Allstate’s bad faith practices, for example Institutional Bad Faith 101 — How Allstate’s DOLF Program Works, and Study Finds Institutional Bad Faith at Allstate, State Farm and Other Major Insurers. A new study just released by a national consumer’s group has now found that Allstate’s institutional bad faith practices and mistreatment of policyholders make it the worst insurance company in America. The Ten Worst Insurance Companies in America.
The new study by the American Association for Justice was a comprehensive investigation of insurance companies across a wide variety of types of insurance. The investigation included review of thousands of court documents, FBI records, SEC records, records of state division of insurance complaints and investigations, and sworn testimony of former insurance adjusters. Based on that review, “One company stood out above all others. Allstate’s concerted effort to put profits over policyholders has earned its place as the worst insurance company in America.” The Ten Worst Insurance Companies in America p. 1.
Although Allstate beguiles consumers with its “good hands” advertising, the study examined Allstate internal documents that instruct claim handlers to use hardball “boxing gloves” tactics against its own policyholders. The Ten Worst Insurance Companies in America p. 3-4. The boxing gloves approach includes lowball offers and hardball litigation, backed up by Allstate’s huge financial might which it asserts against insureds who have the gall to seek the full compensation promised by Allstate’s insurance policy. Former employees describe the boxing gloves approach as the “three Ds”, which are deny, delay, and defend.
Allstate implemented this system, called Claim Core Process Redesign, (CCPR) in 1995 at the urging of consultants McKinsey Company. McKinsey are the “profits above all else” folks who brought you Enron. They proposed a makeover so that Allstate’s processes would focus on profits and enhancing shareholder value over all else, particularly over an insurer’s traditional duties of good faith and fair dealing towards its insureds. For more information about this scheme, see Allstate Finally Releases Development Documents For Its “Boxing Gloves” Claims Adjusting Program.
Why would the good hands people secretly start using boxing gloves on the insureds who put their trust in them? Money. The boxing gloves approach has been incredibly lucrative for Allstate. Allstate’s profit in 2007 alone was $4.6 billion. By comparison, Allstate’s surplus in 1994, accumulated over the entire life of Allstate, was only $6.5 billion. Since implementing CCPR, Allstate’s average net income per year has been approximately $2.25 billion.