More potentially useful information on COBRA comes from "Patient Money/Steps to Take Before Cobra Subsidy Ends" by Walecia Konrad (New York Times Online, Saturday, December 12, 2009).
Sadly, inevitably, assistance in paying the very high COBRA Premiums is coming to an end for many people, which means that their Health Insurance Coverage Premiums will rise like a rocket if things remain as they are, let alone if things get worse. See Patrick McGeehan, "Unemployed Facing End of Subsidy for Insurance Bought Through Cobra" p. A39, col. 1 (New York Times Nat'l ed., Thursday, December 17, 2009).
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One of the repeating themes in newspaper reports about the Obama Administration is the theme that the new Administration is focused on achieving results. Any result, so long as the Administration can call the result a "win".
One of the recurring concepts in newspaper reports is that the Obama Administration will compromise on anything at all, except for achieving a result.
Oh come on, oh come on, Emmanuel.
This way of governing is failure.
The Health Bill making the rounds of the gantlet known as the United States Senate is a good example. The Health Bill that the Senate is likely to vote up or down, no longer has any provision for a Public Health Insurance Option. It no longer has a provision that would extend Medicare Benefits to people younger than 62 and the disabled. However, it does retain all provisions that would require people to buy Health Insurance from private Health Insurance Companies, which would thereby receive a wealth of new Policyholders paying Premiums.
What for?
So that the Obama Administration can declare that they have a result and therefore a "win"?
Senators, vote against the current Health Bill. It has no good and much bad in it. Start over if you cannot come up with something Good -- something more than just a declared "win".
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A new decision by the Federal Fifth Circuit Court of Appeals, under Missouri law, has addressed the question of whether an "occurrence" triggers a defense under a CGL Policy because of the facts alleged against the insured defendant, or because of the causes of action alleged. (Or, as in this case, because of the facts actually appearing in the record where apparently no lawsuit had yet been filed.)
In Download Westchester Surplus Lines Insurance Co. v. Maverick Tube Corp. (5th Cir. Opinion Filed December 10, 2009), a panel of the Fifth Circuit answered this question squarely in favor of the facts being the trigger for an "occurrence" to defend under a CGL Policy.
This is an important and continuing question. See generally Dennis J. Wall, "Does Insurance Coverage for a Duty to Defend Depend on Causes of Action and Claims Alleged, or on the Facts That Are Alleged?", 14 Coverage 23 (American Bar Association, Litigation Section, LexisNexis January/February 2004).
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Fifteen years ago or so, Lloyd's of London allowed its underwriters to reinsure the same risks many, many times. When the risks became losses, Lloyd's "Names" lost their shirts because they paid so many Claims. The cures for that fiasco included "improving transparency about where risk is accumulating, centralizing oversight of the activities of those risk-takers, and bundling old, impaired assets into a separate unit to free up capital." Simon Clark and Kevin Crowley, "Lloyd's of London, 'RBS of 15 Years Ago,' Has Lessons for Banks (Update 1)" (Bloomberg.com, Tuesday, December 15, 2009), citing Lloyd's Chair Peter Levens.
"The reinsurance bubble" suffering which was caused by some at Lloyd's and endured by many 15 years ago, "is comparable to the subprime crisis" now, according to an Insurance industry official. Id. "'We've learned about aggregation of risk,'" says another Insurance industry official. "'The banking industry didn't seem to have in place the same mindset that looked at causality, and underlying causality -- if this went, that could go.'" Id., quoting Dane Douetil, CEO of Lloyd's Insurer Brit Insurance Holdings PLC.
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A spokesperson for Zurich Financial AG's "global corporate division" reports that a new German law called "VorstAG" will force Directors and Officers Insurance Premiums to increase. Carolyn Bandel, "German Salary Law Boosts Executive Insurance Cost (Correct[ed])" (Bloomberg.com, Friday, December 11, 2009).
VorstAG is the German abbreviation for the new law. Not only will it likely increase the cost of Directors and Officers Insurance Premiums, but "VorstAG stipulates manager pay needs to be in line with the achievements of the board and lets shareholders decide on the compensation of their management." Id.
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The General Counsel of the U.S. Consumer Product Safety Commission has addressed "Chinese drywall and the casualty loss deduction available to taxpayers under section 165 of the Internal Revenue Code." It is fair to say that the General Counsel has left open that possibility at this time. 11.23.09 Letter from Cheryl A. Falvey, General Counsel, U.S. Consumer Products Safety Commission, to Senators Bill Nelson, Mark Warner, and Jim Webb, and Member of Congress Glenn Nye.
Further, it appears that a small number of Claims based on Damages allegedly caused by DOMESTIC Drywall can also now be expected. According to Mr. Scott Wolfson handling Press Relations for the CPSC, about 25 Homeowners out of 2,100 who filed complaints about Drywall with the CPSC have reported "issues with American wallboard". Associated Press Copyrighted Story, "U.S.-made Drywall Now Under Scrutiny" (Washington Post Online, Thursday, November 26, 2009).
Whether any of these Drywall Claims will be covered under any Policy of Insurance remains to be determined, of course. Based on general principles, including those which have been and continue to be reviewed in this space, the likelihood of Coverage for Drywall Claims does not appear to be great.
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In a "sinkhole insurance coverage case," a Florida intermediate appellate court ruled in favor of the Appellant Policyholder and ordered a New Trial in a recent 2-to-1 decision: Download Warfel v. Universal Insurance Co. of North America (Fla. 2d DCA Case No. 2D08-3134 Opinion Filed December 9, 2009).
The majority on the appellate panel ruled that in the first Trial, the Trial court "should not have instructed the jury on an evidentiary presumption that impermissibly shifted the burden of proof" to the Policyholder in that case. Download Warfel v. Universal Insurance Co. of North America (Fla. 2d DCA Case No. 2D08-3134 Opinion Filed December 9, 2009), attached Official Slipsheet Opinion at 1-2. The evidentiary presumption arose under Florida Statute Section 627.7073(1)(c)(2005), brought forward without material change. The Florida Statute addresses the "'findings, opinions, and recommendations of [an] engineer and professional geologist'" concerning proof of Sinkhole Damage, in basic terms. Id.
The Statute also provides an evidentiary presumption but one about which the Jury is not to be told, the majority for the Appellate Court held in this case. Download Warfel v. Universal Insurance Co. of North America (Fla. 2d DCA Case No. 2D08-3134 Opinion Filed December 9, 2009), at 8. The presumption provided by Section 627.7073(1)(c) is instead "a 'vanishing' or 'bursting bubble' presumption that affected only Mr. Warfel's burden of producing evidence." Download Warfel v. Universal Insurance Co. of North America (Fla. 2d DCA Case No. 2D08-3134 Opinion Filed December 9, 2009), at 7. The Appellate Court reversed because the Trial Judge had instead instructed the Jury in the first Trial that the Policyholder had the burden to prove by a preponderance of the evidence that the findings, opinions, and conclusions in the only report apparently in evidence, were not correct.
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I just learned that I have been elected to the American Law Institute. The ALI is made up of over 4,000 judges and lawyers of the highest qualifications. One of the most prestigious organizations open to selected lawyers, the ALI is the leading independent organization in the United States dedicated to producing quality work to clarify and modernize the law and to make the law work better.
This is an honor. I am both gratified and humbled by it. Thank you, ALI.
Payment rights have been preserved by the United States Senate for two unlikely groups of frequent adversaries: Health Insurance Company Executives, and Policyholder Attorneys.
In a vote on Sunday, December 6, 2009, the U.S. Senate defeated an amendment offered by Senator Blanche Lincoln, Democrat of Arkansas. The amendment would have reduced or eliminated tax deductions for corporations paying high salaries to their executives, in basic and simple terms, thereby reducing the incentive of such corporations to pay such salaries: but the amendment was limited to payments by Health Insurance Companies to Health Insurance Company executives. The amendment was defeated.
In another vote on Sunday, December 6, 2009, another amendment was defeated. The second amendment was offered by Senator John Ensign, Republican of Nevada. Mr. Ensign's amendment would have reduced or eliminated contingency fees for attorneys who represent persons suing doctors for medical malpractice. That amendment was also defeated.
The newspaper reports of Senate action over the weekend were focused instead on other activities, such as whether the Senate will find happiness in a compromise over a Public Health Insurance Option. For example, in this report by Robert Pear and David M. Herszenhorn, "Push For Public Plan Deal Intensified" p. A12, col. 1 (New York Times Nat'l ed., Monday, December 7, 2009), the following two paragraphs are literally the bottom line:
The Senate on Sunday rejected two proposed amendments to the health care bill. One, offered by Senator Blanche Lincoln, Democrat of Arkansas, would have limited the tax deductions that health insurance companies could take for compensation paid to top executives.
The other, by Senator John Ensign, Republican of Nevada, would have limited contingency fees that could be paid to plaintiffs' lawyers in medical malpractice lawsuits.
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Not content with the limitations of securitization and bundling so amply revealed in late 2008 and early 2009, many investors are turning to Computer Models to calculate the risks of buying Life Insurance Policies -- from you and your clients. The prospects held out by this approach include bigger returns on investments for Wall Street and maybe most investors, but not for you.
Wall Street investors are reportedly gathering steam as they grow excited about the returns they could receive on investments in other peoples' Life Insurance Policy payouts. Investors' risks in "life settlements" and "viatical settlements" include the Insured outliving her or his life expectancy. "The sooner the seller [Insured] dies, the more money the investment makes." Michelle Singletary, "Playing Investment Games With Life and Death" (Washington Post Online, Thursday, September 10, 2009).
This particular "investor's risk" carries with it the specter of potential fraud and potential peril to the Insured seller. If investors receive a sufficiently greater return on their investment if you or your client die sooner rather than later, i.e., if the purchaser of your Life Insurance Policy payout gets more money the sooner you die, there is obviously a range of incentives built in to that investment, ranging from an incentive to perpetrate mayhem to at least acquiesce in all sorts of life-threatening policies, practices, and procedures. Talk about "Moral Hazard"! This type of 'investment' gives a whole new meaning to that phrase.
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