MASS GOOD BUSINESS

Insurance for reality tv shows

Labels: game shows, reality tv 0 comments

I admit it. I'm a fan of reality tv. Not only that, I don't understand the disdain people hold for that genre. I don't see a bright line between "scripted" and "unscripted" shows. Plenty of so-called scripted shows feature ad libs or at least input by actors. Reality shows are plotted, just by people whose job title is producer rather than writer. I liken the process to eliciting testimony at trial. You can prep your witnesses, you can ask the right questions, but sometimes it's the unexpected answer that leads to magic (or the money shot).

Here's a great article by Emily Holbrook at Risk Management Monitor on insurance issues for reality tv. Best quote:

What types of reality shows spur the most insurance claims?

LM: Many times it’s more of the “walk and talk” shows as opposed to
those with stunts that spur the most claims. Audience members are often hurt
while being moved in and out of the auditorium.

I'm waiting for the lawsuit by the estate and family of Russell Armstrong from Real Housewives of Beverly Hills.

On a related note, here's an article on how game shows insure large prizes.

Michigan Health Plan Tax Lawsuit Tests Business Community Priorities

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A lawsuit filed last week in Federal Court seeking a declaration that Michigan’s Health Insurance Claims Assessment Act is preempted by the Employee Retirement Income Security Act (ERISA) will certainly test existing legal precedent, but perhaps the more interesting test will be how the business community responds.

This blog previously reported that officials from one prominent business organization in the state had no intention of pushing back against the legislation at the time citing both internal and external political concerns. That said, they suggested that there would likely be “private” support of a legal challenge from within their organization if in fact the law was challenged.

It will be interesting to see how this “leading from behind” approach plays out. In a conversation with my source shortly before the lawsuit was filed, it was noted that Michigan self-insured employers are now starting to pay more attention to the law and what it means to them.

More specifically, this blog has learned that one prominent multi-state self-insured employer based in Michigan calculated its yearly projected expenses to comply with new law to be more than $250,000. Of course, the administrative headaches are just a bonus.

But even with such a direct adverse impact on their company, senior company executives remain guarded about expressing opposition to the new law.

Now that the legal flaws of new law have been laid bare in the detailed complaint filed against the state and word is starting to get out about its practical impact, we’ll see if any heads pop up out of the foxholes.

And while the this legal challenge is important to self-insured employers in Michigan and to other entities that pay healthclaims for Michigan residents for services received within the state, its significance extends more broadly.

Michigan is not the only state that is strapped for cash and looking for new revenue streams. If its new health plan tax law goes unchallenged, this will likely embolden other states to consider this same approach and the cornerstone of ERISA preemption will be greatly compromised, and with it, the viability of self-insured health plans.

I suspect that if Michigan self-insured employers in large numbers estimated the financial impact to their balance sheets if they were forced to switch to fully-insured health plans and publicly communicated this to policy-makers and business association leaders early on this train would have been pulled off the track before arriving at the courthouse door.

The state has declined to comment on the lawsuit thus far but is required to file a formal legal response in the next 30 days so it will soon become clear how they intend to fight this challenge.

Perhaps the business community may yet demonstrate some clarity with regard to where it stands.

A Tale of Two Domiciles...Revisted

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We suggested a narrative earlier this year that two southern captive insurance domiciles would be worth watching to compare and contrast based on insurance commissioner appointments in each state. Let’s review.

The captive industry in South Carolina fell on hard times during the regime of Insurance Commissioner Scott Richardson who left office at the end of 2010. When newly-elected Governor Nikki Haley named David Black as his replacement in February, this blog reflected the puzzlement expressed by many industry and political insiders.

Mr. Black was a largely unknown quantity aside from being the CEO of an inconsequential life insurance company.

But the sparse resume and lack of ART industry credentials didn’t deter Governor Haley from appointing Mr. Black and pronouncing him as a savior. Consider her comments when naming him to the position where she said “Understanding the importance of your industry, I chose David Black to lead the Department of Insurance. He has the energy and capability to revitalize the captive industry for our state.”

As it turned out, he had neither

Earlier this week, Mr. Black abruptly announced his resignation to his staff via e-mail giving no specific reason for his decision.

So now Governor Haley has a chance for a second bite of the apple to get it right. This means naming someone to the position who is willing and capable to shake up the bureaucracy within the department and establish a firewall between the regulation of traditional insurance companies and alternative risk transfer programs, as originally envisioned by former commissioner Ernie Csiszar more than a decade ago.

A tall order for sure and we’ll be watching.

A very different story continues to play out in nearby Tennessee where Governor Bill Haslam tapped Julie Mix McPeak to head up the insurance department in that state.

This blog noted that Ms. McPeak had both the credentials and reputation to turn heads within the ART marketplace when word of her appointment surfaced. But her future success was not assured.

The first order of business as it related to the ART industry was to shepherd a bill through the Legislature that made comprehensive updates to the state’s captive statute. This effort proved more difficult than expected but Ms. McPeak was up to the task and that legislation, which she helped draft, was signed into law.

Since that development, she has been working methodically to assemble a top notch regulatory team and now most of the key positions have been filled and she introduced these individuals at an industry event earlier this month.

So armed with a progressive captive stature and a regulatory team inspired to transform Tennessee into a premiere captive insurance domicile, the stage has now been set for her to make it happen.

But let’s not get ahead of ourselves as there are certain to be pitfalls ahead as the domicile finds its footing under Ms. McPeak’s leadership in 2012. That said, the fact that leadership is on display is certainly refreshing for those vested in the growth of the ART marketplace.

This tale of two domiciles will continue.

Happy New Years, Everyone.

Labels: jokes 0 comments

I wanted to post some funny insurance jokes today, but after wasting a lot of time searching the web I couldn't find any that were actually funny. So I asked my ten year old daughter for the best joke she knows. This is what she said:

An alien comes down from Mars. He changes into the form of a human except he doesn't give himself any ears because he thinks they look weird.

He starts a business and puts a "Now Hiring" sign on the window. The first person comes in to ask for a job. The alien asks, "Do you notice anything odd about me?" The person says, "Yes, you don't have any ears." The alien disintegrates him on the spot.

The second person comes in to ask for a job. The alien asks, "Do you notice anything odd about me?" The person says, "Yes, you don't have any ears." The alien disintegrates her.

The third person comes in to ask for a job. The alien asks, "Do you notice anything odd about me?" The person says, "Yes, you're wearing contacts."

The alien says, "How did you know that?"

The person answers, "You can't wear glasses if you don't have any ears."

Appeals court holds judge not required to give jury instruction on presumption of consent to use vehicle if contrary evidence has been offered

Labels: auto coverage presumption of permission to use car, presumption of permission to use car 0 comments

McConnico, an employee of Dollar Rent-A-Car, struck and killed Kohlmeyer, a pedestrian, while he was driving one of Dollar's automobiles.

McConnico's primary responsibility was to deliver automobiles to hotels. On the evening before the accident McConnico took a Dollar vehicle to run a a personal errand. The accident occurred as he was driving the car back to Dollar the next day.

McConnico had signed a written acknowledgement when he was hired that he was prohibited from using company rental vehicles except under the direction of a Dollar manager, and that unauthorized use of a vehicle was grounds for discharge. He was in fact fired on the morning of the accident for violating the policy.

There was evidence that personal use of Dollar automobiles was commonplace and few employees were reprimanded for doing so.

Dollar and its excess carrier filed a declaratory judgment action seeking a declaration that there was no coverage because McConnico did not have express or implied permission to drive the car.
The excess policy provided coverage for liability incurred by Dollar and "anyone . . . using with [Dollar's] permission" an automobile Dollar owned.

After trial the jury returned a verdict that McConnico was an unauthorized driver, thereby finding no coverage.

On appeal, Kohlmeyer's estate argued that under Mass. Gen. Laws ch. 231, § 85C*, McConnico was presumed to be driving with Dollar's express or implied consent. The statute states that in certain circumstances in cases against automobile insurers a driver is presumed to have consent to drive a car.

In United Nat'l Ins. Co. v. Kohlmeyer, 81 Mass. App. Ct. 32 (2011), the Massachusetts Appeals Court held:

The presumption embodied in G. L. c. 231, § 85C is part of a legislative structure
supporting the Commonwealth's compulsory motor vehicle insurance requirements.
Read in the context of the statutes to which § 85C refers, the support structure operates in this fashion. An insurer's liability under an automobile policy “insuring against liability for loss or damage on account of bodily injury or death” becomes absolute when a covered loss occurs and is not conditioned on an insured's payment of the loss to the injured party. See G.L. c. 175 § 112, amended by St.1977, c. 437. If the injured party obtains a judgment against the insured, the injured party is entitled to bring an action against the insurer to reach and apply the insurance proceeds.
See G.L. c. 175 § 113; G.L. c. 214 § 3(9). In an action to reach and apply, the
presumption desired by the estate applies but, as § 85C expressly states, only if the plaintiff is seeking to “reach and apply the proceeds of [a] motor vehicle liability policy, as defined in” G.L. c. 90 § 34A.

The court noted that the statute applied only to compulsory policies, and the policy at issue was excess, not compulsory.

It went on to hold that even if the statute had applied, the presumption would have been enough to meet the estate's burden initially, but it was rebuttable, "and continue[d] only until evidence [was] introduced which would warrant a finding contrary to the presumed fact." Because there was such evidence, the judge was not required to instruct the jury on the presumption.

*This link is to the statutes posted by the Commonwealth of Massachusetts. Massachusetts Lawyers Weekly recently ran an article explaining that this website is not updated frequently, and recent revisions to statutes are not shown.

Gap insurance

Labels: Gap insurance 0 comments

Here's an interesting article at The Frugal Toad on a type of insurance I'd never heard of. I was hoping that Gap Insurance might cover the jeans my kid spilled tomato sauce on just after I bought them. But it actually covers the difference between the actual value of a new car and what you paid for it, since new cars lose their value the instant you drive them off the lot.

Another solution to this problem: Don't buy new cars.

U.S. District Court holds that insurer who wrongfully denied duty to defend must indemnify insured where question of duty to indemnify is in equipoise

Labels: duty to indemnify, duty to indemnify burden of proof 0 comments

A couple of days ago I wrote about Manganella v. Evanston Ins. Co., 2011 WL 5118898 (D. Mass.), in which Evanston Insurance Company denied coverage for a sexual harassment claim because the misconduct began before the policy period.

At issue was the MCAD claim of Burgess against her employer, Jasmine Company, alleging that she had been harassed by Luciano Manganella since she began her employment a couple of years before the Evanston policy went into effect. At a deposition she clarified that although Manganella had made inappropriate comments prior to the policy period, she had not felt physically or emotionally threatened by him until after the policy period began.

Evanston made an argument that I don't quite understand that it was entitled to rely on readily knowable facts outside the complaint to deny coverage. (I don't understand it because the black letter law it cites states that facts outside the complaint may be used to trigger the duty to defend, not the opposite; and because the facts outside the complaint appear to trigger coverage rather than show no coverage.)

The court rejected Evanston's argument. It went on to hold that because it had breached its duty to defend Jasmine, Evanston is liable for the costs of settlement reached with Burgess. Although a breach of the duty to defend does not provide an automatic right to indemnity, an insurer that has wrongfully declined to defend a claim has the burden of proving that the claim was not within the coverage of the policy. "Because the evidence on this later issue is in equipoise, Evanston has not met its burden of showing coverage did not attach."

U.S. District Court holds that continuing violation doctrine does not apply to insurance coverage disputes

Labels: continuing violation, sexual harassment 0 comments

Luciano Mangenalla owned and, after selling the company in 2005 to Lerner, managed a women's clothing boutique called Jasmine.

In 1998 Jasmine was sued by Sonia Bawa, a former employee, for sexual harassment. In the wake of the lawsuit Manganella caused Jasmine to purchase an Employment Practices Liability Insurance (EPLI) policy from Evanston Insurance Company. The insurance application stated that, except for the Bawa matter, Jasmine was unaware of any outstanding instances, real or alleged, of claims of wrongful employment practices including sexual harassment. Burgess, Jasmine's human resources manager, warranted that the statement was true.

In or after 2005 Manganella was terminated for sexually harassing four Jasmine employees, including Burgess.

In 2007 Burgess filed a complaint against Manganella, Jasmine, and Lerner at the Massachusetts Commission Against Discrimination. She alleged that since she began her employment in 1997, Manganella subjected her to nearly constant physical and verbal sexual harassment, and on five occasions intimidated her into engaging in sexual acts with him.

Evanston denied coverage because the "wrongful Employment Practice" had not occurred entirely during the coverage period.

At a subsequent deposition Burgess testified that she had not felt physically or emotionally threatened by Manganella before the fall of 1999, although he had made inappropriate comments before then.

Evanston argued that the continuing violation doctrine made Manganella's acts before the policy period part of a continuing pattern of harassment, so that even if Burgess did not feel threatened prior to the policy period the harassment began prior to the policy period, precluding coverage.

In Manganella v. Evanston Ins. Co., 2011 WL 5118898 (D. Mass. 2011), the court rejected the argument, noting that the continuing violation doctrine is intended to ameliorate the potentially draconian effects of the relatively short statute of limitations that governs discrimination claims. The court held that the doctrine should not be applied to shrink relief available to an insured.