June 18th, 2019

Geico Asks for Immunity

New York’s annual legislative session ends Wednesday. And that means, predictably, a mad rush to get legislation enacted without having to wait another year. Or, conversely, a mad rush to stop legislation.

And that’s where we are today, with Geico attempting to halt legislation that would hold it (and other insurance companies) accountable for bad faith in settlement negotiations. Yes, out-of-state- readers, it’s true, New York currently has very limited ways to stop insurance companies from trying to screw you over in your time of distress.

This legislation was first proposed in the wind-swept wakes of Hurricane Sandy in 2013, when insurance companies thought it would be a really cool idea to deny coverage for damaged homes. If a policy excluded wind damage, the insurers would claim water was to blame. If it excluded water damage, they would claim wind was to blame.

The denials had a common background – they were dealing with people who had their homes destroyed and were, therefore, in great economic distress. Because everyone needs a roof over their heads. So the denials gave the insurance companies some, let’s call it, leverage.

Delay and delay and force the homeowners to hire lawyers to sue. Then, when the pain is deep enough and the homeowners desperate enough, maybe settle for 50 cents on the dollar. Or 70. But even if the insurers had to cough up 100 cents on the dollar on some of the claims, so what? That was merely what they had to do anyway. Every cent saved was profit.

And that is part of the base model of the insurance company: Take in as much as you can in premiums and pay out as little as possible and invest the money in the interim.

The legislation that is proposed, that Geico is afraid of, would put a stop to that as well as bad faith tactics in auto policies and elsewhere.

Right now, in an auto case, if an insurance policy is only the bare minimum $25,000 or maybe $100,000, and the damages are $500,000, the insurance company has a vested interest in offering only a portion of the policy. Sure, it’s possible that someone will spend $20,000 and try the case to verdict. But that often makes little economic sense, and all the lawyers know it. You can win but still lose. So why offer the whole policy even if you would, in good faith, owe it?

The only avenue for relief currently is to take an excess verdict against the insured when the insurance company has elected to put its own interests ahead of those customers, because you can’t sue the insurance company directly.

And then, only then, if the insured is smacked for a big, fat verdict in excess of the insurance policy, there might be some relief. But that relief only comes if the defendants — who you just sued and perhaps, inflicted a bit of anxiety — then assigns their own rights to sue the insurance company for bad faith back to the people that had sued them. And if those people are gone? Or say “screw you, we don’t feel like helping you as we got nothing to take anyway so it doesn’t matter to us?” Well, sorry Charlie.

The bad faith legislation that is now pending would fix this problem, a problem created by the fact they are currently required to act in good faith but there is only one very poor method of enforcement.

Enter, stage right, Geico to oppose this common-sense legislation. In a mass email yesterday from Rick Hoagland, a Geico senior vice president, to its policy holders, it urges people to call their legislators to stop the legislation and protect the insurance company profits.

OK, maybe Hoagland didn’t word it quite that way. He claimed, instead, that legislation protecting both policy holders and the people they may injure would someone be bad for them. George Orwell would have been proud.

He writes, instead that:

I am the senior vice president of GEICO, your insurance company in New York, and I am writing to ask for your help. The New York State Senate and Assembly are considering multiple pieces of legislation in the next few days that, should they pass, will likely increase insurance premiums for YOU and all New Yorkers, even if you’ve never had an accident.

He doesn’t say it would increase premiums but rather, he speculates. He provides no empirical data. More importantly, he doesn’t tell his insured that the legislation protects them from the bad faith practices of Geico, the company that they paid money to in order to protect them in the event something goes awry. And it is those bad faith practices that could put their own homes at risk in the event of a verdict in excess of their insurance policies.

And, of course he doesn’t tell his readers that the bills are designed to protect them. No, he claims that “make it easier for trial lawyers to sue insurance companies.”

Here’s an idea, why not just put us personal injury lawyers out of business by dealing in good faith to begin with? Look, Geico I solved your problem! (You’re welcome. No charge.)

Here’s the Geico pitch, compete with links to the bills, which I urge people to read so the they know they are consumer protection bills. The reason he provided links is because he knew, no doubt, that few people would actually click them or get an explanation as to their true purpose:

Assembly Bill 5629-B and its companion bill, Senate Bill 3634-B, along with Assembly Bill 5623 and its companion bill, Senate Bill 6216 , are going to make it easier for trial lawyers to sue insurance companies and will have negative, long-lasting impacts on New York policyholders and taxpayers. (Simply click on the appropriate bill number to link to the text of the legislation.)

The legislation would allow a direct case against the insurance company for bad faith, so that the victims don’t have to rely upon the people they just sued to tender their rights against the insurers.

Geico, of course, would like to make enforcement of good faith laws difficult, thereby giving it a certain level of immunity. Why not offer 20K on a 25K policy when you know it will cost the injured plaintiff that much just to try the case? There’s almost no downside for them for acting in bad faith.

It’s time New York finally put a stop, once and for all, to the bad faith of insurance companies. The law requires good faith dealing and the Legislature should give consumes the tools to enforce it.

The email is here:

 

February 11th, 2015

Allstate Adjuster Likely Wants Her Snark Back

Allstate

Don’t those nice Allstate hands look so friendly?

A snarky email from an Allstate adjuster may cost the company $900,000. Here’s the story.

By most anyone’s definition, 66-year-old Carol Haberman’s experience while walking her dog can be a horrible, life-altering one. Newspaper deliveryman James Burke backed out of a driveway at night while making a 3-point turn and ran her over. Realizing something happened, he pulled forward, likely running her over again.

The result? A complex left hip fracture requiring a total hip replacement, a lumbar compression fracture and compartment syndrome requiring a fasciotomy of the left leg.

What happened in litigation, however, was astounding. You may hear me rant about insurance companies and adjusters sometimes, and now you’ll see another reason why. The difference here is that the adjuster actually put her Kool-Aid inspired thoughts into writing.

There were two fundamental issues to deal with: How to apportion fault as between a driver and pedestrian. And how severe the injuries were. This would include, of course, the extent to which she had prior injuries that may have been affected.

But any way you sliced it, this was a significant matter to be deftly handled. Practically speaking, both plaintiff and defendant would want to limit their exposure with a jury. This is the type of common sense risk management of which settlements are made.

This is also one of the primary reasons that picking stupid personal fights with the other side is detrimental to a client. Because one day you might need to talk turkey over coffee with that other side about how to best serve your client with a negotiated deal.

And so it came to pass that, with a $1.25M insurance policy on the line, the parties in Haberman v. Burke thought that they had reached a settlement of sorts. This would have been what we call a high-low agreement that limits the financial exposure of both sides, with the high being $1.1M and the low being $100K.

The problem? Plaintiff’s counsel, Paul Edelstein, believed that this established the high and low of damages, and that only the issue of liability would be tried. Given the costs of hauling experts into court, this is an arrangement that can make sense for both sides.

But no. Allstate insurance adjuster Andrea Sewsankar thought that both liability and damages would still be tried. And she wanted that despite the fact that her “expert” was the discredited orthopedist Robert Israel.

OK. An understandable miscommunication occurred. But one would logically then assume that an effort would be made to hash out a solution, especially since the defendant had a problem with its expert. Whether agreement would have been ultimately reached, who knows, but certainly the efforts would be continued. Right?

Dear Reader, would I be writing this if that effort were made?

No. Instead, Allstate’s Ms. Sewsankar shot off a deliciously snarky email after Edelstein said that the two of them were not on the same page as to the details of the high-low. This was the set-up to the nastiness, via emails that I have obtained that were  being used to confirm the deal:

Sewsankar: As we discussed, win or lose, your client is guaranteed a payout of $100,000 in exchange for a cap at 1.1 million. No appeal & your client will be responsible for all liens including and not limited to Medicare.

Edelstein: Correct.  But also no damages trial.  We will do hold harmless and deal with any medicare lien

Sewsanker: Oh no, damages trial also.

Edelstein: Oh man. Sorry. We weren’t on the same page.  I cant do that.  Only high low if we do away with damages trial

So far, not a problem, right? Just two sides trying to confirm in writing the nature of a deal, and then realizing that they had an unresolved issue.

And then, Boom! The testy little missive that will likely cost Allstate a bucket full of money before it’s all over, and which cracks open the Kool-Aid drinking mindset of some insurance adjusters, and which will be extremely important after this week’s verdict:

Sewsankar: No problem, I thought you had recognized the awesome skills of my defense counsel & wanted to garner a six figure payout for your client, so I took the opportunity to solidly protect my insured with this cap. Luckily, no payout will be warranted when Ed scores a defendant verdict on liability.

Thanks a million.

Don’t you love the hubris? I’m not sure which part of the email is the best: Is it boasting of the “awesome skills” of her counsel? The “no payout will be warranted?”

I’m betting it’s the “thanks a million” part that really must be hurting Allstate now. Because the liability verdict found 65% in favor of the plaintiff, meaning that Allstate would have been on the hook for only 65% of $1.1M high-low, or $715K.

But instead the case then proceeded to a damages trial with this result this week in very conservative Suffolk County:

past pain/suffering: $500K

future pain/suffering: $750K

future medical expenses: $400K

future home health aid/ assisted living facility costs: $800K

Add that up, and it comes to $2.45M, and 65% of that is $1.6M. And the insurance policy was only $1.25M.

So, when Ms. Sewsankar wrote “thanks a million” she was off by a bit. (I emailed her for comment yesterday morning but she has not responded.)

Her hubristic and intemperate email will, no doubt, be part of plaintiff’s efforts to collect the excess against Allstate in an action for bad faith. Her snark may cost Allstate about $900K. Either that, or it may bankrupt its insured.

You can almost feel the love from Allstate’s “good hands” logo. Almost.

 

April 8th, 2014

New York Central Mutual Slammed in Bad Faith (And What it means for you)

Helene Blank

Helene Blank

Her name is Helene Blank and she last appeared on this page ripping into the City’s Corporation Counsel for his incredible hypocrisy in calling our courts inefficient.

She isn’t just a top trial lawyer here in New York, and a frequent lecturer to others. No, she is also something else. She’s pissed. Again.

And she’s got a damn good reason…so without further ado, Helene Blank as guest blogger…

——–

It’s a tale of corporate greed, in all its ugly manifestations, which starts with grave human suffering. And thanks to a federal court decision last week, we share it today in all that ugliness.

We turn the clock back to November 11, 2000, in the Town of Ulysses, New York, when Peggy Horton, a married mother of three and licensed registered practical nurse, was struck by Ralph Wade when he failed to yield at a stop sign.

No one disputes that Wade caused the collision (not an accident). What he did was unfortunate. But what his insurance companies did next to the two of them for almost a decade – and what they almost got away with and could get away with today — is inconceivable. Yet it continues to happen all the time.

Horton underwent six separate surgeries to correct the damage done to her back — starting with a fusion of two spinal levels and progressing to the insertion of hardware due to instability, incisional hernias, hardware removal and additional fusion.

She never returned to work as a nurse. She suffered from depression and post traumatic stress. Even the doctors hired by the insurance company agreed, finding that she suffered from what is known as failed back syndrome and that she would have nothing but a life of pain to look forward to.

Eleven months after the collision, Horton sued Wade.

Wade was insured by New York Central Mutual for $500,000.00. In addition, he had an umbrella policy with his homeowners insurance, Quincy Mutual, for another million. This is where the ugliness comes in.

Despite the fact that both insurers were immediately notified of this lawsuit, the primary insurer (New York Central Mutual) withheld the existence of the excess million for years. Horton, unaware of the extra million, had agreed to accept the 500K in settlement, perhaps recognizing that a personal judgment against Wade would be useless, under the well-known legal theory that you can’t get blood from a stone.

For her massive injuries and inability to work, New York Central offered the piddling sum of $75K.

The irony is that if it hadn’t been for its greed in refusing to offer the primary $500K when it had multiple opportunities, New York Central would have gotten away with hiding the existence of the excess policy. Instead, because of its greed, New York Central not only has to pay its primary policy of $500K, but also has to pay the excess million excess held by Qunicy (plus interest).

The long, sad and shocking  story only came to light when the excess/umbrella carrier brought a law suit in bad faith, against New York Central Mutual in the Northern District of New York. The suit was based on New York Central’s apparent failure to cheat this plaintiff in a timely fashion and settle quickly before the excess was revealed, resulting in it being on the hook for the late-revealed excess million.  See: Qunicy Mututal v.New York Central Mutual

Quincy Mutual showed that, at multiple times, the plaintiff had agreed to accept the $500K in final settlement of her action because at that time, despite being legally entitled to the knowledge of all available insurance — that knowledge was withheld from her lawyers. New York Central fouled up yet again, apparently, as after the excess million was finally revealed, she still gave them a short time to meet the 500K demand.

But this isn’t about the good faith of a plaintiff keeping the settlement door open. It’s about the greed of the insurance company. Perhaps the insurance carrier thought that, if the litigation was delayed long enough and Horton suffered more due to her inability to work, it could strike a better deal.

U.S. Magistrate Judge David Peebles found New York Central had acted in “gross disregard” of the excess carrier’s interest when it stuck to its $75K settlement offer and lost opportunities to settle with Horton.

The real outrage for all consumers is that you could not open up a settlement, which is induced by the insurance company, if you learned later that there was in fact more coverage.

Wade — the negligent driver that started it all —  was put to the expense and worry for years that his personal assets might be in jeopardy because all the experts agreed that Horton’s losses well exceeded his available coverage. He was forced to hire private counsel to protect him because his insurance companies were not keeping their part of the contracts that he had bought and paid for.

Both the plaintiff and the defendant lost here. But the insurance companies did not. They kept their money for years longer than they ever should have been allowed to, dragging the parties through the court system for almost a decade before they resolved this matter.

New York Central Mutual continued to use the money without a care towards their statutory obligation to negotiate in good faith to protect their insured.

So it’s time that victims like Peggy Horton get the right from Albany to open up a settlement if you learn after you accept what you were mislead into believing was all the available insurance when in fact it wasn’t.

This unbridled corporate greed has to end. Insurance companies should not be allowed to cause additional harm to injured victims, to their insureds, and needlessly keep un-winnable litigation going for years and years without any recourse by the people they harm.

We all lose when this happens – our courts’ limited resources are clogged up with cases that should be resolved, victims who can’t work, who need the money to live are kept waiting forever and dragged through the system for no reason, and the people who paid their hard earned money to protect themselves with insurance are entitled to have the contract they paid for honored.

 

 

October 19th, 2011

Insurer Slammed For Bad Faith as Judge Cites “A Few Good Men”

Can you handle the truth? Just to make sure, Brooklyn Supreme Court Justice Arthur Schack opened his opinion yesterday — wherein he castigates a New York insurer for bad faith in settlement negotiations — by citing to the famous courtroom showdown in A Few Good Men in Taveras v. American Transit Ins. Co.

Col. Jessup: You want answers?
Lt. Kaffee: I think I’m entitled to them.
Col. Jessup: You want answers?
Lt. Kaffee: I want the truth!
Col. Jessup: You can’t handle the truth!

And the truth, as seen through the eyes of Justice Schack, is that American Transit, which insures many of New York’s taxis, is now on the hook for $2,250,000 after refusing to settle for the $200,000 limits of the insurance policy.  That is 2.25M plus interest from 2006, at 9% per annum, which should add about another million. According to Justice Schack, American Transit, “refuses not only to acknowledge, but to handle the truth!”

American Transit refers to itself this way on its website:

The Company has established itself as the leader and principal market for this type of business and its resultant premium volume has established the Company as the leading commercial automobile underwriter in New York State for the past several years.

So let’s see what this insurance carrier did to deserve their comeuppance from Justice Schack:

It all started with a car accident in which Taveras was a back-seat passenger in Amir’s taxi, insured by American Transit. Amir rear-end another car, and was then rear-ended itself.  All three drivers were sued by Taveras, who suffered serious injuries to his neck, back and knee, requiring surgeries to his back and knee.

With multiple cars involved, a liability trial followed, and the jury found the American Transit taxi 70% liable with 30% liability on the car that plowed into them (the second hit). That other liable car, the one with the 30% liability, also happened to be insured by American Transit. Each taxi had $100,000 in coverage.

With liability established,  and such significant injuries, the combined $200,000 insurance policy would have been clearly inadequate. The claims included, in addition to the pain and suffering, future medical needs of $636,000 and lost earnings of about $924,000

But the plaintiff recognized, as so many plaintiffs do, that going after personal assets beyond the insurance policy was likely to be a losing proposition, as you can’t get blood from a stone. Or a taxi driver.

So the plaintiff said, both before the liability trial and again afterwards, that he would take the 200K policy and be done with it. American Transit responded to the demand at one point, according to plaintiff’s counsel, by saying it would pay the 200K “over our dead bodies.”

Not only did they refuse to negotiate in good faith, but they also failed to tell their insured that his personal assets would be put at risk when American Transit refused to settle for the policy. Oops.

Perhaps AT figured that, with a badly injured plaintiff, they could simply wait him out and settle for even less, regardless of whether this constituted good faith negotiations or no?. Perhaps they figured they had the upper hand, as many insurers do? Perhaps, they were simply arrogant? Perhaps they were too busy going to insurance conference conferences to bother looking at the case?

Maybe they just wanted to make the plaintiff spend his money? Because after the plaintiffs’s experts testified — a neurosurgeon, an orthopedist, a neurologist and an economist — American Transit offered up the two policies. Plaintiff told the defendant to go shit in a hat (as we say in legalese) and went on to take a verdict.

After American Transit refuses offers to settle, a whopper of a verdict comes in for $9,263,376. This was then reduced to $2,500,000, as we don’t let verdicts stand that deviate materially from what would be reasonable compensation. (See: How New York Caps Personal Injury Damages.)  Since the front car in the accident had settled for 250K, that left $2.25M

Amir, who was now on the hook for millions, assigned his rights to the plaintiff to proceed against his insurance company. And it ended this week with the court saying that:

“it is clear, as a matter of law, defendant AT engaged in a pattern of knowing and reckless disregard for the interests of its insured AMIR. Despite its protestations to the contrary, AT refuses to acknowledge its bad faith and now attempts to disclaim and throw AMIR “under the cab.”

As we say in legalese, ouch.

The standard for bad faith by an insurer in New York is:

in order to establish a prima facie case of bad faith, the plaintiff must establish that the insurer’s conduct constituted a “gross disregard” of the insured’s interests that is, a deliberate or reckless failure to place on equal footing the interests of its insured with its own interests when considering a settlement offer.

And this seemed to fit American Transit to a T.

The most striking part of the decision, however, is this: The issue was decided on summary judgment after a series of depositions of AT employees. That is, American Transit’s bad faith was so bad that the judge found it as a matter of law, as there was no factual issue for a jury to decide. Justice Schack did this while acknowledging the standard for such actions:

Courts, in bad faith actions, are hesitant to grant summary judgment against defendant insurers because typically there are issues of fact with respect to whether the conduct of the defendant insurer constituted “gross disregard” of the insured’s interests. However, courts are rarely presented, as in the instant action, with party admissions acknowledging that defendant AT’s conduct was “reckless,” demonstrating a pattern of behavior evincing a conscious or knowing indifference to its insured, AMIR. AT’s employees admitted to AT’s “reckless” conduct and one even deemed it “suicide” to go forward on damages, based upon the limited information maintained by AT and the lack of any colorable defense to plaintiff’s damages.

That is some pretty strong stuff.

The decision is long and detailed, and goes into the multiple failings of the American Transit to evaluate the case prior to trial and its attempts to shift blame to its attorney. But Justice Schack was not interested in blame-shifting to trial counsel when it was clear the powers-that-be, those with actual authority to settle the case, hadn’t even looked at it. Justice Schack wrote:

Before the liability portion of the trial began: Claims Supervisor Phyllis Toppin did not evaluate the merits of the case; Bodily Injury Manager Jay Ellenberg was not aware that the case existed; and, Vice President Richard Carroll only learned of the case one month before trial and never reviewed the file himself.  This is surprising, because only Ms. Toppin, Mr. Ellenberg and Mr. Carroll had the authority to settle a case for more than $50,000. Also, Mr. Ellenberg and Mr. Carroll were the only AT personnel with the authority to set the reserve on a case at $100,000…

A couple other points worth noting: American Transit, after years of asserting they were the insurer, tried to disclaim after they lost. The judge tossed the claim as equitably estopped. He did not appear to be amused by such tactics.

Another tidbit, the defendant driver, Amir, has a law degree from Pakistan and a degree in the US and was permitted to sit for the bar at the time of the accident. After he got blind-sided by his insurer — having never been told he might be on the hook for any excess —  they told him to file for bankruptcy and hold of sitting for the bar.

This decision sits as a textbook lesson of everything they should never do.

Elsewhere:

Insurer Acted in Bad Faith by Refusing to Settle Suit, Judge Says (NYLJ)

Insurer can’t ‘handle the truth’ in bad-faith case: judge (ThomsonReuters)