05152016 Insurance Advocate by C Acunto

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Serving New York, New Jersey, Connec cut, Eastern Pennsylvania and Washington, DC

PIANY Honors Hourihan, Jarvis at LI RAP

Jerry Hourihan

Vol. 127 No. 9 | May 15, 2016

Dave Jarvis

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[ FOREWORD ]

STEVE ACUNTO

Heck Honored. And Just What is a “Stevie”? uAt a time when personnel needs in the industry are becoming acute (with an estimated 18% loss among professionals through retirement, etc.), a sure 60% percent of people working in the U.S. insurance industry are women. The New York City Association of Insurance Women (NYCAIW) reminds us that only six percent of them hold “C” suite positions – CEO, CFO, COO – according to data from the Insurance Information Institute and the Insurance Industry Charitable Foundation, respectively. The list leaves out CIO, CAO and CMO, but the point is made in any case. One “C” suite leader, Elizabeth Heck, CEO of GNY, was honored as the Insurance Professional of the Year by the NYCAIW at its annual luncheon in mid-May. She is a great example for her colleagues. A “sold-out” crowd of 250 gathered to honor Ms. Heck at the Loeb Boathouse in New York City’s Central Park. Professional networking ruled the day as Liz lived up to her reviews, according to attendees. “Professionally Liz is among the elite handful of women leading insurance companies and influencing industry best practices,” said Jillian Menna, President of NYCAIW and General Counsel at the SterlingRisk agency in Woodbury, NY. In accepting the award, Ms. Heck reflected on the changes she’s seen during her 30-plus-year career, confiding that when she was offered one of her first promotions, her boss asked her to check with her husband to see if it was alright. “I can see by the look on your faces, you get how bizarre that is,” Ms. Heck commented to some women in the first row. “Now, women, by their sheer numbers, women dominate the industry. It’s only a question of time before they assume the leadership positions they’ve earned, as the current executives retire.” She joined GNY in 2001 as the company’s Corporate Controller, and was promoted to Chief Executive Officer in 2014. She serves on the Board of the New York Insurance Association and is a member of the Innovation Advisory Council. She is also an active member of the National As4 May 15, 2016 / INSURANCE ADVOCATE

sociation of Mutual Insurance Companies, and the American Society of Workers Compensation Professionals, where she is Treasurer. Ms. Heck is the Chair of the Board of Governors ELIZABETH HECK of the New York Compensation Insurance Rating Board and is also a Director of the Executive Committee of the Crohn’s & Colitis Foundation of America. She is a recent recipient of the Israel Bonds' Neil D. Levin Memorial Government Service Award, the Women in Insurance Leadership award, and was recognized by the Crohn’s & Colitis Foundation for her role as the 2013 Take Steps Revenue Chair. Under her leadership, GNY employees are currently raising money for Alzheimer’s research. NYCAIW is a nonprofit made up of both male and female insurance professionals dedicated to leadership development, continuing education, networking, charity and industry alliances. It currently has 100 members and over 800 industry contacts. … Speaking of awards, ProSight Specialty® Insurance, the fifth fastest-growing company in New Jersey and something of an innovator in the rather traditional world of insurance, has been named the winner of three Silver and four Bronze Stevie® Awards. ProSight’s honors span a broad spectrum of categories in The 14th Annual American Business Awards, including recognition for the company’s “growth, innovation, business-tobusiness services and leadership.” ProSight received recognition as a Silver Stevie® Award winner in the following categories: Business-to-Business Services: ProSight Specialty Insurance Drone Offering; Fastest Growing Company of the Year - Up to 2,500 Employees: ProSight Specialty Insurance; Management Team of the Year – Business Services Industries: ProSight Specialty Insurance Management Team. ProSight was also recognized as a Bronze Stevie® Award CONTINUED ON PAGE 10

VOLUME 127, NUMBER 9 MAY 15, 2016

EDITOR & PUBLISHER Steve Acunto 914-966-3180, x110 sa@cinn.com CONTRIBUTORS Peter H. Bickford Jamie Deapo Kelly Donahue-Piro Michael Loguercio Christopher Paradiso Lawrence N. Rogak N. Stephen Ruchman Jerome Trupin, CPCU Barry Zalma PRODUCTION & DESIGN ADVERTISING COORDINATOR Creative Director Gina Marie Balog 914-966-3180, x113 g@cinn.com COPYEDITOR & PROOFREADER Maria Vano mariavano9@gmail.com SUBSCRIPTIONS P.O. Box 9001, Mt. Vernon, NY 10552 914-966-3180, x111 circulation@cinn.com PUBLISHED BY CINN Media, Inc. P.O. Box 9001, Mt. Vernon, NY 10552 (914) 966-3180 | Fax: (914) 966-3264 www.cinn.com | info@cinn.com President and CEO Steve Acunto

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INSURANCE ADVOCATE® (ISSN 0020-4587) is published bi-monthly, 20 times a year, and once a month in July, August, September and December by CINN ESR, Inc., 131 Alta Avenue, Yonkers, NY 10705. Periodical postage paid at Yonkers, NY and additional mailing ofﬁces. POSTMASTER Send address changes to Insurance Advocate®, P.O. Box 9001, Mt. Vernon, NY 10552. Allow four weeks for completion of changes. SUBSCRIPTION RATES $59.00 US, Canada $65.00, International $110.00. TO ORDER Call 914-966-3180, fax 914-966-3264, write Insurance Advocate® PO Box 9001, Mt. Vernon, NY 10552 or visit www.Insurance-Advocate.com. INSURANCE ADVOCATE® is a registered trademark of CINN ESR, Inc. and is copyrighted 2016. All rights reserved. No part of this magazine may be reproduced in any form without consent. Trademark registered U.S. Patent and Trademark Ofﬁce.

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Contents

May 15, 2016 | Volume 127 Number 9

[COVER STORY]

PIANY Honors Hourihan, Jarvis, at LI RAP

[FEATURES] 4

Foreword: Heck Honored. And Just What is a “Stevie”? Steve Acunto, Publisher Exposures and Coverages: Six Short Takes on Six Signiﬁcant Topics Jerome Trupin, CPCU

Guest Article: Protecting Fifty Years of Child Health Progress Marian Wright Edelman

In the Associations: Minkler Honored with Woodworth Memorial Award

In the Associations: PIANY Honors Hourihan as LI RAP Executive of the Year Jarvis Accepts LI RAP Distinguished Insurance Service Award

On the Level: What is Your Customer? Jamie Deapo

On My Radar: Sit on Your Rights & You Will Lose Them Barry Zalma

Courtside: Was the Cure Worse than the Disease? Homeowner Alleges that Tear Gas Remediation Chemical Made Her Sick Lawrence N. Rogak, Esq.

Looking Back: March, 1991

Classiﬁeds

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Guest Opinion: The Maze of Medical Pricing — How Much Does It Cost and What are We Paying For? Gerard Gianoli, M.D.

info@insurance-advocate.com www.insurance-advocate.com

INSURANCE ADVOCATE / May 15, 2016 5

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[ EXPOSURES & COVERAGES ]

J E R O M E T R U P I N , C P C U, C L U, C h F C

Six Short Takes on Six Significant Topics uWe have a bumper crop of short takes on significant topics ranging from cat (catastrophe) bonds to hail this month. It’s going to be all the news that fits, we print.

Cat Bond Issuance Sets First Quarter Record of $2.2 Billion Despite Fall in Interest Rates Cat bonds once again set a quarterly record in the first quarter of 2016: $2.2 billion, despite the drop in interest rates. For example, in 2011 Chubb paid an interest rate of 6.65% when it sold a $250 million northeast hurricane bond that also covered earthquake and winter storm risks. When the bond renewed in 2015, the interest rate fell to 3.75% and the perils were broadened to include wildfire, volcanic eruption and meteorite impact. Like premiums, interest rates are higher for higher risk bonds, but the interest rates fell also. Florida hurricane cat bonds sold by Citizens Property Insurance Corp., the insurer of last resort in the Sunshine State, carried an interest rate of 17.75% in 2012, but renewed for 7.5% interest in 2014, and $1.5 billion in bonds were sold instead of the original offering of $400 million.1 Interest rates are comparable to the premiums charged by reinsurers; the fall is due to the dearth of high quality, high interest short term investments (as of May 6, 2016, US Treasury bonds paid under one percent on three-year bonds). Another factor is the broadening of the market as institutional investors gain an understanding of cat bonds as a safe place to earn higher interest rates. You might think that the comparison with US government bonds isn’t valid because there’s almost no credit (default) risk with US government bonds. However, there’s little credit risk with cat bonds. The insurance company sets up a special trust that holds the investments until they are

The reason for the higher interest rates paid on cat bonds than on other high quality investments is the risk of the occurrence of an event insured against…

either disbursed at maturity or used to pay claims. The trust is obligated to invest in only the highest quality investments. The reason for the higher interest rates paid on cat bonds than on other high quality investments is the risk of the occurrence of an event insured against (e.g., a hurricane). That can cause a loss of principal and interest. Reinsurance premiums have also fallen sharply in the last three years. This is good news for insureds with good loss records. For those insureds, premiums should stay low.

Sonoma Valley Bank Executives Settle With FDIC— We Don’t Get No Respect The newspaper headline was: “Sonoma Valley Bank executives settle with FDIC over bank’s collapse.”2 The lead paragraph talked about a $5.4 million payment that settled the FDIC’s claims against three officers of a failed California bank. The third paragraph reads: “It calls for payments from the bank’s former president and chief executive officer, Sean Cutting, as well as former CEO and director Mel Switzer and vice president and chief loan officer Brian Melland.”3 Only when you get to the fourth paragraph, do you discover that the payments were funded by insurance (presumably directors and officers coverage). With apologies to Rodney Dangerfield, we don’t get no respect.

1 Matthew Lerner, “Investors Undeterred By Lower Catastrophe Bond Yields” Business Insurance April 5, 2015 2 “Sonoma Valley Bank Executives Settle With FDIC” The Press Democrat, Santa Rosa, CA 4/39/16 3 Ibid

6 May 15, 2016 / INSURANCE ADVOCATE

Jerome “Jerry” Trupin, CPCU, is a partner in Trupin Insurance Services located in Sleepy Hollow, NY. He provides property/casualty insurance consulting advice to commercial, nonprofit and governmental entities. He is, in effect, an outsourced risk manager. Jerry has been an expert witness in numerous cases involving insurance policy coverage disputes and has taught many CPCU and IIA courses. Jerry has spoken across the country on insurance topics and is the co-author of over ten insurance texts used in CPCU and IIA programs including Commercial Property Risk Management and Insurance and Commercial Liability Management and Insurance. He regularly contributes articles to CPCU Society publication, the Insurance Advocate®, and others. He can be reached at jtrupin@aol.com. Thanks to Jerry Trupin for this article and to the CPCU Society for letting us reprint it.

Federal Court Rules CGL Insurance Covers Data Breach—Don’t Rely On It In a decision that has legal eagles salivating, a Federal appeals court affirmed a lower court ruling that the CGL policy may cover liability for a data breach. A Travelers insured, Portal Healthcare Solutions, was hired by Glens Falls NY Hospital to do electronic medical recordkeeping. The hospital’s records were hacked and posted on the Internet, resulting in a class-action lawsuit against the hospital. The hospital in turn claimed against Portal. Travelers rejected the claim against its insured stating that the CGL CONTINUED ON PAGE 8

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[ EXPOSURES & COVERAGES ] CONTINUED FROM PAGE 6

policies it had issued to Portal did not require it to provide defense for this claim.4 The court ruled that the CGL policy may cover data breach liability, and the appellate court affirmed. The decision runs counter to decisions in New York, Connecticut, and other states holding the CGL policy does not cover data breach liability. That’s good news for attorneys; conflicting decisions create more lawsuits. However, there are reasons why insureds should not rely on this decision for data breach coverage in a CGL policy: • The Travelers policy wording differed from ISO. Travelers policy covers “electronic publication of material that…discloses information about a person’s private life.” ISO’s policy includes in the definition of personal and advertising injury coverage for claims arising out of “oral or written publication, in any manner, of material that violates a person’s right of privacy.” Coverage territory includes for: “Personal and advertising injury offenses that take place through the Internet or similar electronic means of communication.” It can be argued the net effect of the differing wording is the same, but that overlooks the cases holding that “written publication in any manner” refers to publication by the insured, not by someone else, such as hackers.

• The Portal case only dealt with coverage for defense costs. It did not settle whether there would be coverage for a judgement or settlement. The

The court ruled that the CGL policy may cover data breach liability, and the appellate court affirmed. The decision runs counter to decisions in New York, Connecticut, and other states holding the CGL policy does not cover data breach liability.

court cited the familiar phrase that the duty to defend is broader than the duty to indemnify. That means the insurer may still deny coverage. • ISO has introduced an optional endorsement CG 21 06 05 14 (Exclusion – Access Or Disclosure Of Conﬁdential Or Personal Information And Data-Related Liability – With Bodily Injury Exception). It excludes coverage for injury or damage claims arising out of any access to or disclosure of any person’s or organization’s

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confidential or personal information. If there are more decisions that the unendorsed CGL covers data breach, ISO will undoubtedly incorporate the exclusion in the CGL form. • In any event, a lawsuit is a terrible way to obtain coverage. The winners are the attorneys; the insurance company and the insured lose even if the decision is in their favor. Despite this decision, don’t advise clients to rely on CGL policies for data breach coverage. They need cyber insurance.

Designated Premises Endorsement Again Snares the Insurance Company, Not the Insured I hate the designated premises endorsement. It unreasonably narrows CGL coverage. I’ve railed about this endorsement in several prior columns, but now we’re seeing decisions that may give insurers second thoughts about adding the endorsement to their insureds’ policies. In some cases, the courts are reading the endorsement to expand coverage. In June 2015, I wrote about a Hawaii case holding that a CGL policy with a designated premises endorsement covered bodily injury and property damage liability from a dam collapse on property that the insured had sold many years before.5 The court explained that the designated premises endorsement includes coverage for: “the ownership, maintenance or use of the premises shown in the Schedule and operations necessary or incidental to those premises (emphasis added).” The court ruled that the use of corporate offices (the designated premises in the policy) to make decisions about the dam triggered coverage. In a recent decision in a convoluted State of Washington case involving the use of an auto, the court awarded CGL coverage based on the designated premises endorsement. The new decision quoted so liberally from the Hawaii case that Randy Maniloff, a frequent commentator on insurance issues and a prolific blogger, wrote: “In reaching CONTINUED ON PAGE 10

4 The Travelers Indemnity Company Of America v. Portal Healthcare Solutions, L.L.C., US Court of Appeals Fourth Circuit No. 14-1944 5 “Designation Premises Endorsement” Insurance Advocate June 15, 2015, page 12

8 May 15, 2016 / INSURANCE ADVOCATE

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[ EXPOSURES & COVERAGES ] CONTINUED FROM PAGE 8

this conclusion, the court quoted several pages from the Hawaii Supreme Court’s decision in C. Brewer. I’ve never seen a court quote verbatim, to such extent, from another court’s decision.”6 Randy headlined his article “ISO Take Note.” I hope ISO takes Randy’s advice and does something about the designated premises endorsement or, better yet, gets rid of it.

Last Year’s Top 10 Equal Employment Opportunity Commission Claims Every year, the EEOC (Equal Opportunity Commission) publishes a list of the top 10 EEOC charges in the prior year. Here’s the latest list: • Retaliation: 39,757 (included in 44.5% of all charges filed) • Race: 31,027 (34.7%) • Disability: 26,968 (30.2%) • Sex: 26,396 (29.5%) • Age: 20,144 (22.5%) • National Origin: 9,438 (10.6%) • Religion: 3,502 (3.9%) • Color: 2,833 (3.2%) • Equal Pay Act: 973 (1.1%) • Genetic Information NonDiscrimination Act: 257 (0.3%) (The percentages total much more than 100% percent because many complaints cite more than one type of offense. For example, retaliation claims often accompany other complaints–the employee may claim that s/he was discriminated against because of race and that the employer then retaliated when the employee filed a complaint.) Many, perhaps more, employment practices claims are made without filing EEOC

charges and the fact that the EEOC took no action on the complaint does not prevent the employee from pursing it further.

The National Weather Service has size rankings for hail going from BB (less than ¼ inch in diameter) through half-dollar (1-¼ inches) up to compact disk DVD (4-¾ inches). My favorites are golf ball, billiard ball, tennis ball, baseball and softball.

In April, the San Antonio, TX area was struck by a hailstorm with baseball-size (2¾ inch diameter) hail. Amazingly, the insured damage is expected to exceed $1.36 billion.8 In absolute dollars, it’s the most expensive in Texas history, but a 1995 hailstorm in the Fort Worth area, which did $1.1 billion in damage, would come in at $1.6 billion when adjusted for inflation. Makes our area look good for insurers. I’ve never had a client with a hail claim and our area doesn’t have tsunamis or typhoons, and suffers little damage from tornadoes and earthquakes. What’s that you say? What about Sandy? Oh.[IA]

FOREWORD CONTINUED FROM PAGE 4

Even so, the list of claims is useful information for clients; it may alert them to the exposures they face and encourage them to purchase employment practices liability insurance.

Hail, Hail, The Gang’s All Here–Together With Insurance Claims I am referring to the frozen stuff that falls from the sky. We do have hailstorms in the NY Metro area, but they pale compared to those in the mid-west.7 The National Weather Service has size rankings for hail going from BB (less than ¼ inch in diameter) through half-dollar (1-¼ inches) up to compact disk DVD (4¾ inches). My favorites are golf ball, billiard ball, tennis ball, baseball and softball.

winner in the following categories: Executive of the Year – Insurance: Joe Beneducci, Chairman, President and CEO; and Company of the Year – Business Services: ProSight Specialty Insurance. “We are passionate about bringing unrivaled value to our customers to help them succeed. We are proud to have the work that we do recognized by the American Business Awards,” Beneducci stated in accepting the awards. The American Business Awards is one of the nation’s premier business awards programs. Nicknamed the Stevies for the Greek word meaning “crowned,” the awards will be presented to winners at a gala ceremony at the Marriott Marquis Hotel in New York on Monday, June 20. More than 3,400 nominations from organizations of all sizes and in virtually every industry were submitted this year for consideration in a wide range of categories.[IA]

6 Randy Maniloff, “ISO Take Note: Another Court Gives ‘Designated Premises Endorsement’ A Way Too Broad Interpretation” Coverage Opinions April 29, 2016, http://coverageopinions.info/Vol5Issue5/CurrentIssue.html 7 Fire was the first property peril for which insurance was available. Hail, windstorm and a few other coverages became available relatively recently as stand-alone coverages that could be covered, the so-called allied perils. They were then combined into the extended coverage (EC) endorsement, which in turn was replaced by the special, broad, and basic coverage forms that ISO introduced in 1986. The basic form is comparable to the old extended coverage endorsement; it includes hail and most of the other EC perils. 8 Patrick Danner and David Hendricks, “San Antonio’s Hailstorm Most Expensive in Texas history” San Antonio Express-News (TX), April 20, 2016

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49th Annual Insurance Industry “Good Scout” Award Luncheon

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[ GUEST ARTICLE ]

MARIAN WRIGHT EDELMAN

Protecting Fifty Years of Child Health Progress uIt was a generation ago that Harry Truman said, and I quote him: "Millions of our citizens do not now have a full measure of opportunity to achieve and to enjoy good health. Millions do not now have protection or security against the economic effects of sickness. And the time has now arrived for action to help them attain that opportunity and to help them get that protection. … The need for this action is plain; and it is so clear indeed that we marvel not simply at the passage of this bill, but what we marvel at is that it took so many years to pass it." President Lyndon B. Johnson said this as he signed Medicaid into law on July 30, 1965, thanking former President Harry S. Truman and the many members of Congress from both parties who laid the groundwork and worked tirelessly to make the Medicaid program and its protections reality. Not only has Medicaid been a lifesaver for tens of millions of older Americans for fifty years, it has helped Americans of all ages, including millions of children. Together with the Children's Health Insurance Program (CHIP) it has brought the number of uninsured children to a historic low. Medicaid and CHIP provide comprehensive and affordable health coverage to more than 44 million children—57 percent of all children in America. With the new coverage options offered by the Affordable Care Act (ACA), 93 percent of all children now have health coverage. Yet at a time when we should be celebrating Medicaid and CHIP successes, serious threats to Medicaid, CHIP, and the ACA continue to surface in Congress. So in addition to advocating for continuing improvements in children's health coverage, we must also play defense to protect the hard-earned gains made for children as well as adults. The 2016 Budget Resolution passed by both the House and the Senate paves the way to radically restructure Medicaid, making deep cuts that will reverse the progress made in reducing the rate of uninsured 12 May 15, 2016 / INSURANCE ADVOCATE

children, pushing tens of millions of Americans—including millions of children—into the ranks of the uninsured and underinsured. The Budget Resolution also puts in motion a process to repeal the ACA, which prohibits discrimination against the 129 million children and adults with preexisting health conditions, helps over five million uninsured 18-26-year-olds now covered under parental insurance plans, and extends Medicaid coverage to age 26 for some youths leaving foster care. More than 10 million near-poor adults, including many parents, in the twenty-nine states and the District of Columbia that have expanded their Medicaid rolls under the ACA will lose Medicaid coverage as a result. While children comprise 48 percent of those enrolled in Medicaid, they account for less than a quarter of Medicaid costs. Medicaid's current structure guarantees children the health and mental health care to meet their individual needs when they need it and must be protected. Major structural changes like block grants or per capita caps that limit expenditures for the entire Medicaid program don't create cost efficiencies. They shift costs from the federal government to states, local communities, and/or beneficiaries. To meet rigid constraints of such federal limits states would have to increase their spending, make deep cuts, or both. Any "savings" would likely come from reducing eligibility, limiting benefits, increasing cost sharing, or cutting already below-market provider payment rates. Any of these steps would impose significant harm on millions of vulnerable children and families. Changes that result in loss of or limits on children's health coverage would also require states and local communities to absorb substantial costs. An uninsured child costs the local community $2,100 more than a child covered by Medicaid. Right now Medicaid's Early and Periodic Screening, Diagnostic, and Treatment (EPSDT) benefit guarantees the full range of comprehensive primary and preventive coverage children need, pre-

Marian Wright Edelman is President of the Children's Defense Fund whose Leave No Child Behind® mission is to ensure every child a Healthy Start, a Head Start, a Fair Start, a Safe Start and a Moral Start in life and successful passage to adulthood with the help of caring families and communities. For more information go to www.childrensdefense.org.

venting more serious and costly consequences later on. Almost 75 percent of children enrolled in Medicaid had a preventive well-child visit in the past year compared to 41 percent of uninsured children. Children enrolled in Medicaid miss fewer classes and perform better in school than uninsured children. Medicaid covers more than 40 percent of all births in the United States, and every $1 spent on prenatal care can save $3.33 in costs associated with care immediately after birth and another $4.63 associated with costs later in the child's life. Medicaid is also a special lifeline for children with disabilities, serving 40 percent of children in America with special health care needs. For many of these children Medicaid is the only source of financing for their care. For others Medicaid supplements private coverage to help ensure access to the medical equipment and devices (such as hearing aids) they need to survive and thrive. New research documents the longterm benefits of Medicaid coverage in childhood. The National Bureau of Economic Research compared children eligible for Medicaid during childhood to their non-eligible peers and found that the Medicaid-eligible children were more likely to attend college, make greater contributions as adult taxpayers, and live longer than those without coverage. The findings reaffirm the economic case for doing what common sense and morality already dictate: by investing in childhood well-being now, the government will recoup the benefits later. After fifty years of Medicaid's protections, how can any elected leaders still not get it, or get it but simply not care about the most vulnerable among us? We should let them hear from us.[IA]

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[ IN THE ASSOCIATIONS ]

Minkler Honored with Woodworth Memorial Award uWASHINGTON, D.C.—The Independent Insurance Agents & Brokers (IIABA or the Big “I”) has awarded Tom Minkler, CIC, with the Woodworth Memorial Award, the highest honor the association bestows on one of its members, during the annual Big “I” Legislative Conference. Minkler is president of the Clark-Mortenson Agency in Keene, New Hampshire, and former Big “I” chairman. The Woodworth Memorial Award recognizes the meritorious and outstanding contributions of an independent agent or broker to the national association, to his or her Big “I” colleagues and to the insurance industry. “The Big ‘I’ is proud to present Tom Minkler with the Woodworth Memorial Award for his service to our industry and our association,” said Randy Lanoix, Big “I” chairman and president of Lanoix Insurance Agency in Lutcher and Brusly, Louisiana. “Tom’s dedication to the independent agency community and to his local community fully epitomizes the very principles of this prestigious award.” Minkler is a past chairman of the Independent Insurance Agents and Brokers of New Hampshire (NHAIA), past New Hampshire director on the Big “I” Board of Directors and past president of the Massachusetts Association of Insurance Agents. “The state of New Hampshire insurance community can never repay Tom for his lifetime of hard work and dedication to the industry,” said Will Infantine, NHAIA chairman. “His unparalleled commitment in the state and on a national level has resulted in lasting innovation and set the foundation for the next generation of insurance professionals. The award is certainly representative of New Hampshire’s appreciation for his tireless service.” At the national association level, in addition to having served on the executive committee and rising to the rank of chairman, Minkler has championed the Consumer Agent Portal project since 2009 and is past chairman of the Big “I”

Government Affairs Committee. He has also served on various other Big “I” committees including the Professional Liability Committee, the Agents Advocacy Fund, the

IIAA Agency Administrative Services board of directors, and the Captive Study Committee. He is a frequent speaker for the insurance industry and has provided testimony before the U.S Congress on behalf of the Big “I” on a variety of topics. In 2007, Minkler received the highest IIABA Government Affairs award, the Sydney O. Smith National Legislative Award, and in 2006, 2010 and 2012 he was recognized for his outstanding service to the insurance industry with an IIABA Chairman’s Citation.[IA]

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Working From Home – Pros & Cons for Agents ADVANCES IN TECHNOLOGY have changed the face of customer service and the insurance industry. Customers expect to be able to reach your company 24/7, either via a call center or online. Premium payments can be made, policy changes requested, or claims reported at the touch of a button. Accessibility can be 24/7 via use of Internet phones, cell phones, laptops and other mobile devices. Taking advantage of technology to improve service to customers, and flexibility to your employees, is another value-added service of the professional insurance agent. The Internet is available on smartphones in virtually every country on Earth. Fifty percent of the US workforce holds a job that is compatible with at cane Sandy or Katrina, least partial telework and when roads are not navapproximately 20-25% of igable or power at the the workforce teleworks main office may be disat some frequency (www. The “cloud” rupted. Claims can be globalworkforceanalytics. com). Working remotely has truly changed reported from a computer, phone or other reduces a company’s exour lives, mobile device. penses, decreasing or elimMany people stress inating the cost of office both professionally the desire for work/life space, and frees up reand personally. balance when choosing sources for additional serva job. Benefits of workice reps and equipment. ing remotely include The ability to work from elimination of commutanywhere also broadens ing times, and the ability the pool of available employees, since reto be home with children, family memlocation is no longer required. The “cloud” bers or pets that may need assistance. has truly changed our lives, both profesParents spend less time away from their sionally and personally. children, and are able to participate in acAccess to assistance 24/7 can be crutivities more easily. The transition to recial if the system crashes after normal tirement can also be eased by working working hours, or a claim happens in from home, especially if a part time opthe middle of the night. Working in the tion is available. Cost savings to the emcloud allows employees to do their job ployee include reduced commuting and from anywhere in the world if they have wardrobe expenses. A safety benefit is the Internet capability. Phone calls and ability to avoid roads on stormy days. The emails can be forwarded to cellphones. disturbing question of, “Am I well Even small companies can benefit enough to go to the office?” is eliminated from the ability to have their employees to the advantage of both the ailing emwork remotely. This is especially true if ployee and their colleagues. customers are in multiple time zones. Drawbacks include lack of interacBeing accessible to customers during tion and developing relationships with their time zone’s work hours is very coworkers. With employees scattered important. across the country, it can be difficult to Remote access can be crucial for get to know one another and develop claims departments, especially during a camaraderie. Another drawback can be storm-related disaster, such as Hurri14 May 15, 2016 / INSURANCE ADVOCATE

an increase in impromptu conference calls. For the employee, ready access to family is not always a plus, since there may be increased demands for attention. Where there are young children, daycare or an in-house caregiver can help to provide the employee with uninterrupted work time. Standard homeowners policies may not provide adequate coverage for the business property used in the home. Additionally, if clients travel to employees' homes, additional liability coverage may be required. The days of the 9-5 office are long gone. Improved technology has made global staffing possible. Many benefits result for both the employee and the company. An awareness of the drawbacks can assist in overcoming or ameliorating them. No longer are employees tied to a desk in an office. The use of technology to work remotely and offer 24/7 service to your clients is another sign of the true insurance professional.

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PIANY Honors

Hourihan, Jarvis, Seeks to Inspire and Build Agents’ Business at LI RAP THE LONG ISLAND RAP COMMITTEE POSES WITH KEYNOTE SPEAKER AND FORMER NEW YORK JET MARTY LYONS.

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uHundreds of professional, independent insurance agents from the Long Island and greater New York area gathered on May 4 at the sprawling Crest Hollow Country Club in Woodbury for a day of networking, tradeshow, education and ceremony at the Professional Insurance Agents of New York State’s Long Island Regional Awareness Program.

Tradeshow Long Island RAP offered participants the opportunity to connect with fellow agents, catch up with friends and make new contacts at its expansive trade show. With more than 50 exhibitors, a shoe-shine booth, a back massage station, and plenty of door prizes, the trade show offered participants the perfect venue to catch up with colleagues and stay upto-date on the latest innovations, products and markets.

JERRY HOURIHAN, PRESIDENT OF AIG PRIVATE CLIENT GROUP, ACCEPTS THE EXECUTIVE OF THE YEAR AWARD

Awards Ceremony During the Long Island RAP luncheon, Long Island RAP Chair Michael A. Loguercio, Jr. presented Jerry Hourihan, president of AIG Private Client Group, with the Executive of the Year award; and Dave Jarvis, vice president of agencies for Utica First Insurance Co. was presented with the Distinguished Insurance Service award.

Keynote Address: Marty Lyons Marty Lyons, former defensive tackle on the New York Jets and member of the famed New York Sack Exchange, keynoted the awards luncheon. Through his work with the Marty Lyons Foundation, Lyons has granted more than 3,000 wishes to children suffering from life-threatening or terminal illnesses. His efforts also led the Jets to name the Outstanding Community Service award the Marty Lyons Award, presented to the player who gives from the heart through charity and community involvement. During his address, Lyons shared his experience working with his foundation to encourage the audience to make an impact by stepping out and serving others. Lyons traced the history of the Marty Lyons Foundation and made note of three events that triggered his desire to do more than just play football: the sudden passing of his father, the unfairness of the death of a young man whom he mentored, and the birth of his son. Through these events, Lyons said he was pulled to use his football fame to make a difference in others’ lives.

DAVE JARVIS, VICE PRESIDENT OF AGENCIES FOR UTICA FIRST INSURANCE CO., ACCEPTS THE DISTINGUISHED INSURANCE SERVICE AWARD.

CONTINUED ON PAGE 18

FORMER NEW YORK JET MARTY LYONS DELIVERS THE KEYNOTE ADDRESS. INSURANCE ADVOCATE / May 15, 2016 17

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CONTINUED FROM PAGE 17

LONG ISLAND RAP COMMITTEE CHAIR MICHAEL A. LOGUERCIO, JR. (LEFT) PRESENTS JERRY HOURIHAN (RIGHT), WITH THE DISTINGUISHED INSURANCE SERVICE AWARD.

“The game of football has enabled me to make a difference by giving me a platform,” Lyons said. “But surely all of you have that platform as well, should you choose to step on it.” By recounting stories from his own life, Lyons challenged the luncheon audience to use their platform as business owners, insurance agents, and members of the community to make an impact. “If you make an impact, you change the way people think and the way people act,” he said. “The only way to do that is to live by example and to understand that when you want to communicate, you need to connect.” The Long Island RAP luncheon closed with the PIANYYIP Ice Cream Social immediately following Lyons’ address. The reception, which featured live music provided by Mark Newman, offered insurance professionals the opportunity to enjoy ice cream and desserts to cap off the day.

Education

LONG ISLAND RAP COMMITTEE CHAIR MICHAEL A. LOGUERCIO, JR. (LEFT) PRESENTS DAVID JARIS (RIGHT), WITH THE EXECUTIVE OF THE YEAR AWARD.

BRUNO FALVO, CIC, CPCU, ARP, TEACHING THE MORNING EDUCATION SESSION AT LIRAP 18 May 15, 2016 / INSURANCE ADVOCATE

Long Island RAP attendees had two chances to bolster their continuing education credits by participating in a morning and afternoon education session with insurance expert Bruno Falvo, CIC, CPCU, ARP. During the morning session, Unlocking the Mystery of Insureds, Additional Insureds and Contractual Liability, Falvo explored the differences between insureds and additional insureds through the lens of the contractual liability exclusion. “I want people to leave here knowing the difference between insureds and additional insureds because there are a lot of differences,” he said. “They have different coverage and should be treated differently. Even though a lot of people think they’re the same, they are dramatically different.” In the afternoon session, attendees learned how to address errors and omissions claims more effectively in Errors & Omissions Loss Control by Example. The class focused on specific E&O issues Falvo has seen in the industry and how such claims can be better handled in the future. “I try to share my experience being involved with E&O claims, so people can learn from others’ mistakes, and hopefully they won’t make them,” he said.[IA]

“I want people to leave here knowing the difference between insureds and additional insureds because there are a lot of differences. They have different coverage and should be treated differently. Even though a lot of people think they’re the same, they are dramatically different.”

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[ IN THE ASSOCIATIONS ]

PIANY Honors Hourihan as LI RAP Executive of the Year uGLENMONT, N.Y.—The Professional Insurance Agents of New York State Inc. presented Jerry Hourihan, president of AIG Private Client Group, a division of American International Group Inc., with its Executive of the Year award at the annual Long Island Regional Awareness Program, May 4, at the Crest Hollow Country Club in Woodbury, N.Y. The award recognizes an individual from an insurance company, a general agency or a managing general agency who has demonstrated qualities that best foster a strong working relationship with agents and brokers, and who has exemplified a commitment to professionalism and service. Active in industry affairs, Houirhan has been with AIG for 14 years, and has held roles with increasing responsibility throughout his tenure. Most recently, he served as executive vice president and chief marketing officer for AIG Personal Lines in the U.S. and Canada. Prior to joining AIG, Hourihan worked for Chubb Insurance. “This award honors Jerry for his professionalism and demonstrated commit-

“This award honors Jerry for his professionalism and demonstrated commitment to the insurance industry.” ment to the insurance industry,” said PIANY president Gene A. Sandy, CIC. “It is my privilege to recognize a company representative with such a high-level of dedication to service.” The day’s events also included an expansive trade show, and timely education sessions including Unlocking the Mystery of Insureds, Additional Insureds and Contractual Liability, presented by Bruno Falvo, CIC, CPCU, ARP, in the morning. Errors & Omissions Loss Control by Example, also presented by Falvo, was held in the afternoon. PIANY is a trade association representing professional, independent insurance agencies, brokerages and their employees throughout the state.[IA]

Jarvis Accepts LI RAP Distinguished Insurance Service Award uGLENMONT, N.Y.—The Professional Insurance Agents of New York State Inc. presented Dave Jarvis, vice president of agencies for Utica First Insurance Co. with its Distinguished Insurance Service award at the 41st Annual Long Island Regional Awareness Program, May, 4, 2016. The event was held at Crest Hollow Country Club in Woodbury, N.Y. “Dave is admired and respected by his peers and colleagues in the industry. This award recognizes his long-standing commitment to the insurance industry,” said Gene Sandy, CIC, president of PIANY. 20 May 15, 2016 / INSURANCE ADVOCATE

“Dave is admired and respected by his peers and colleagues in the industry. This award recognizes his long-standing commitment to the insurance industry.”

been with Utica First Insurance Co. for 15 years, managing the marketing and agency operations. In addition to the presentation of the Distinction of Professionalism awards, PIANY’s LIRAP also featured Marty Lyons, formerly of the NY Jets, who presented the keynote address. Participants also had access to a soldout trade show and networking opportunities throughout the day. The day also included timely education sessions approved for continuing education credits. Participants attended the education session Unlocking the Mystery of Insureds, Additional Insureds and Contractual Liability in the morning and Errors & Omissions Loss Control by Example in the afternoon. PIANY is a trade association representing professional, independent insurance agencies, brokerages and their employees throughout the state.[IA]

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[ GUEST OPINION ]

G E R A R D G IA NOL I , M . D.

The Maze of Medical Pricing – How Much Does It Cost and What are We Paying For? uIn a previous editorial, I commended candidate Trump’s proposal of price transparency for hospitals and doctors. It is astounding that this has not been an element of the GOP formula for healthcare reform until now and that an outsider had to bring it up. It is so obviously part of a free market that only in an overly regulated healthcare market could it be overlooked. However, there is another element of price transparency that the Trump campaign (along with the rest of the GOP hopefuls) missed. What about insurance industry price transparency? Insurance premiums and deductibles are advertised by the insurance industry, but patients do not know what they are really getting for their money. Patients have no idea how much the insurance company will pay the hospital or the doctor for any of the services rendered. And most doctors and hospitals don’t know how much they will be paid by the insurance companies either. Some may think this is unimportant. But these same people may also wonder why their insurance is not accepted by most of the doctors or hospitals in their town. For example, imagine that the Cheapo Insurance Co. pays a cardiologist $500 to do an angioplasty and the Luxor Insurance Co. pays a cardiologist $5,000 for the same procedure. Which insurance company do you think most cardiologists will want to sign with? Most would obviously not want to accept the Cheapo Insurance because they might actually lose money every time they did an angioplasty. Yes, doctors can lose money when they are paid too little. If the doctor’s overhead is $600 per hour and it takes him an hour to do the angioplasty, he just lost $100 on the patient with Cheapo Insurance. Many doctors, who are focused on doing a good job, are not even aware of this until it’s too late. Now, as a patient, you wouldn’t care so much what the exact fees your insurance company is paying your doctor or hospital. 22 May 15, 2016 / INSURANCE ADVOCATE

In a free market, honest prices are essential—not just for what doctors and hospitals charge, but for what insurance companies pay. However, you would want to know how much they’re paying the doctor or hospital relative to how much your treatment costs. If you learn that almost all of the cardiologists accept Luxor Insurance, but almost none accept Cheapo Insurance, and that the reason is that the Cheapo payment doesn’t cover most doctors’ costs, you might have some concerns about going to the cardiologist who accepts Cheapo Insurance. He might be desperate, or foolish, or both. Unfortunately, the situation is not quite so simple. In the real world, the fees an insurance company pays doctors or hospitals will usually not be the same for all. If a hospital has a large patient population or has a monopoly in the community, it can negotiate much higher fees from an insurance company. The insurance company has no option but to make a deal with that hospital if it wants to be in the market in that town. However, that is an unusual situation. Most of the leverage is on the side of the insurance company. A large private company like Blue Cross of Louisiana insures close to half of the privately insured patients in the entire state. So, if Blue Cross doesn’t make a deal with a particular hospital, it could ruin the hospital financially by sending half of the privately insured patients to the hospital’s competitors. In the eyes of the insurance companies, all doctors are all equivalent. For doctors, the insurance contract is a take-it-or-leave-it deal. The insurance companies don’t want price transparency since this would result in reducing their competitive edge and

Gerard Gianoli, M.D., F.A.C.S. specializes in Neuro-otology and Skull Base Surgery. He is in private practice at The Ear and Balance Institute, located in Covington, but is also a Clinical Associate Professor in the Departments of Otolaryngology and Pediatrics at Tulane University School of Medicine. He pioneered treatments for Superior Semicircular Canal Dehiscence and other vestibular disorders. His private practice has a worldwide reach, with patient referrals coming from all over the United States and from around the world. Dr. Gianoli opted out of Medicare in 2001 and has had a 100% third-partyfree practice since 2005. He’s lectured and written extensively (as well as had numerous media interviews) on thirdparty-free medical practices and free market medicine. His editorials have appeared in The Wall Street Journal, Forbes, Investor’s Business Daily, The Hill and other popular periodicals. He has received numerous awards, including the American Academy of Otolaryngology’s Honor Award, and has been named in America’s Top Doctors and America’s Top Physicians every year since their inception in 2001 and 2003, respectively. Dr. Gianoli practices all aspects of neurootology but has a special interest in vestibular (balance) disorders. He has researched, lectured and published extensively on the topic of vestibular disorders.

hurt their bottom line. Doctors, hospitals, and patients all suffer. So why isn’t the Republican Party pushing for price transparency for insurance companies? Why hasn’t the Democrat Party mentioned it either? It seems apparent that lobbyists for the insurance industry have more influence with both politicians of both parties than their constituents do. In a free market, honest prices are essential—not just for what doctors and hospitals charge, but for what insurance companies pay.[IA]

5-15-16_INA 5-15-16 5/17/16 11:08 AM Page 23

Independent Insurance Agents & Brokers Brokers of Suffolk County Invite Y You oou T Too Their Annual Scholarship Golf Outing Benefiting The IIABSC Scholarship Endowment Fund at Stony Br Brook roook University College of Business

Honoring Peterr N. N Resnick NEW LOCATION

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AS Special pe p ciall T Thanks hanks ttoo O Our ur Tournament Tou o rnament Sponsor Spponsor Companies Com mppanies

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5-15-16_INA 5-15-16 5/17/16 11:08 AM Page 24

[ ON THE LEVEL ]

JAMIE DEAPO

What Is Your Customer? uHow well do you know and understand your customer? Not only your current customer but the customer you are looking to add in the future. Are they similar in their wants, needs and motivations? What are their expectations? Meeting and exceeding customer expectations is the key to growing a successful agency today and going forward. Do you ask your current customers what motivated them to allow you and your staff to handle their insurance protection? The reasons that motivated them are critical for you to know and understand. I think all of us would like to believe that it was our knowledge and professionalism that secured their business, but many experts tell us that it’s liking someone and trusting them that may be the prime motivator. If you haven’t been reaching out to your customers I suggest you seriously consider starting. You can’t make someone happy and satisfied if you don’t know what makes them feel that way. You should ask when they first come to you, when they buy their first policy from you and along the way, as they go from being just a customer to being a loyal client. You might be surprised with their answers. All customers aren’t alike. You need to keep that in mind because your current clients may have very different expectations and motivations than the new customers you are trying to attract. That means what is and was attractive today might not meet the needs of the future clients you are looking to attract. Simply put, your Baby Boomer clients may have very different expectations than the Millennials you are looking to attract. That means you have to make sure that both groups’ expectations are met. Our business is getting very competitive. The new competition coming into the marketplace are all about using technology to speed up service times and allow customers to access services whenever it is convenient for them. Having and using today’s technology to better provide for your customers is important, but I also 24 May 15, 2016 / INSURANCE ADVOCATE

believe it has to be tempered with the personal touch or you run the risk of making customers frustrated and unhappy.

Engaging customers and finding out what motivated them to buy from you and keeps them as a client is important.

They say today’s consumer is more educated in general and specifically about the products they buy. That may be true; however, because of the complicated nature of insurance protection, I don’t believe it can ever be sold in a self-service fashion. Insurance policies hold too many slight variations of coverage that can mean the difference between having a good claims experience and a bad one. Unfortunately, that bad claim experience could actually be financially devastating if someone doesn’t know how to select the right protection. Engaging customers and finding out what motivated them to buy from you and keeps them as a client is important. It’s too easy to believe you know what the answers are without actually checking. You may be surprised by some of the responses you get. Even without asking clients about their experience and whether you are meeting and exceeding their expectations, there are some simple common sense follow-ups you can do to make sure you have the best chance of pleasing your clients. When people call your agency are they greeted in a happy and professional manner? Do they get the feeling your staff truly wants to help them and make their experience a positive one? If they leave a message or voice mail does everyone return those messages promptly? Does your customer know what to do in the event of an accident

Jamie Deapo is AVP of Membership & Member Programs for IIABNY and is an approved CE instructor in New York. Prior to being with IIABNY, he was an independent agent in the Syracuse area for 15 years. Jamie started his career in 1972 working for insurance carriers, and he has held various underwriting and marketing positions with several national as well as regional companies. He is a past president of the Independent Insurance Agents of Central New York and served on the board of directors of IIABNY.

or loss? Does that include even when the office isn’t open? Is your website easy to reach and does it contain useful information that is easily found? Can your website be read on a mobile device? Do you have a mobile app for customers who want that capability? Do you take the time to adequately explain to customers the protection they are buying and why it is important? Knowing your customer requires a dialogue and a clear understanding of what makes them happy and keeps them as a customer. Every agency should have in place a procedure for reaching out to customers at different times to find out how your agency is performing and what you could do better. Even without the feedback of your customers, every agency knows and should take the time to make sure that the way the staff handles customers meets the standards of care the agency insists on. Quality customer service is not a mystery; we all know what goes into it. As our business progresses, changes will occur that make handling customers’ needs quicker and more convenient. To be successful it’s important to know your customers and their expectations. It’s also important to make sure your agency is providing the level of customer service you want and expect. Failure to do so could result in a serious loss of business.[IA]

5-15-16_INA 5-15-16 5/17/16 11:08 AM Page 25

Strength. Honor. Stability.

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[ ON MY RADAR ]

BA R RY Z A L M A

Sit on Your Rights & You Will Lose Them Statutes of Limitation Serve an Important Function uIn an attempt to clean up with damages after Hurricane Katrina after sitting on its rights for many years, Marion’s Cleaners, LLC, sued its insurer seeking indemnity from its insurer for damages that resulted from Katrina. In Marion’s Cleaners, LLC v. National Fire & Indemnity Exchange, Slip Copy, 2016 WL 952247 (March 14, 2016), the United States District Court, E.D. Louisiana, was faced with a claim that, although the suits were filed late, the limitation period (called “prescription” in Louisiana) was tolled. National Fire & Indemnity Exchange (“National Fire”) filed two motions; first, a motion for summary judgment and second, a motion for judgment on the pleadings. Both motions were opposed by Plaintiff Marion’s Cleaners, LLC (“Marion’s” or “Plaintiff ”).

BACKGROUND This consolidated matter addresses two post-Hurricane Katrina insurance-coverage lawsuits filed by Marion’s Cleaners against National Fire. Prior to Hurricane Katrina, National Fire issued policies of insurance to Marion’s Cleaners for its commercial properties located at 106 Severn Avenue in Jefferson Parish, Louisiana, and at 3142 Calhoun Street in New Orleans. The parties agree the insurance policies were in effect when Hurricane Katrina made landfall in Louisiana and Mississippi on August 29, 2005. According to Marion’s, Hurricane Katrina inflicted “serious and devastating damages” to its business locations in Jefferson Parish and New Orleans, causing Marion’s to incur a “loss of inventory, loss of use and loss of business income” at both locations.

DISCUSSION National Fire contends, in both motions, that it is entitled to judgment as a matter of law because Marion’s claims are prescribed. Because jurisdiction in this case is premised on diversity of citizenship, the Court must apply the applicable Louisiana prescriptive period. Under Louisiana law, 26 May 15, 2016 / INSURANCE ADVOCATE

the deadline for filing insurance claims for property damages and losses caused by Hurricane Katrina was September 1, 2007. Both parties agree Marion’s claims against National Fire were subject to the September 1, 2007 deadline. Nevertheless, Marion’s filed the instant lawsuits years later. It is beyond dispute that Marion’s did not sue National Fire prior to the September 1, 2007 prescriptive deadline. As a general rule, the burden of proving prescription rests with the moving party. However, if the petition is prescribed on its face, prescription is presumed and the burden of proof shifts to the Plaintiff to negate that presumption by proving suspension or interruption. Marion’s claims against National Fire are prescribed on their face. As a result, it is Marion’s burden to prove that the prescriptive period was either suspended or interrupted. To receive the benefit of the suspension of prescription provided for in the statutes, an individual filing an independent suit must establish three predicate facts: (1) the existence of a timely-filed class action proceeding against the defendant; (2) that he or she is a member of the class described or defined in the identified class petition; and (3) that the claims asserted in the independent action arise “out of the transaction or occurrences described” in that petition. The Motion to Dismiss Because Marion’s claims are prescribed on their face, it is Marion’s burden to show the prescriptive period was suspended or interrupted. But nowhere in its state-court petition does Marion’s even mention the class-action tolling doctrine or allege that Marion’s is or was a member or putative member of a class. Marion’s only invokes the class-action tolling doctrine in its opposition to National Fire’s motion, and it does so summarily. Marion’s state-court petition does not even list the class or putative class actions which Marion’s claims to be a part of, let alone identify itself as a member of those

Barry Zalma, Esq., CFE, has practiced law in California for more than 42 years as an insurance coverage and claims handling lawyer. He now limits his practice to service as an insurance consultant and expert witness specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He founded Zalma Insurance Consultants in 2001 and serves as its only consultant. Look to National Underwriter Company for the new Zalma Insurance Claims Library, at www.nationalunderwriter.com/ZalmaLibrary. The new books are Insurance Law, Mold Claims Coverage Guide, Construction Defects Coverage Guide and Insurance Claims: A Comprehensive Guide. The American Bar Association, Tort & Insurance Practice Section has published Mr. Zalma’s book “The Insurance Fraud Deskbook” available at http:// shop.americanbar.org/eBus/Store/Pro ductDetails.aspx?productId=214624, or 800-285-2221 which is presently available. Legal Disclaimer: The author and publisher disclaim any liability, loss, or risk incurred as a consequence, directly or indirectly, of the use and application of any of the contents of this blog. The information provided is not a substitute for the advice of a competent insurance, legal, or other professional. The Information provided at this site should not be relied on as legal advice. Legal advice cannot be given without full consideration of all relevant information relating to an individual situation.

classes or explain how its claims are similar to the claims asserted therein. Summary, conclusory allegations are not sufficient to invoke the class-action tolling doctrine. Based on these allegations, the Court found that Marion’s state-court petition

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[ ON MY RADAR ] does not state a plausible claim for relief, and granted National Fire’s Rule 12(c) motion. The Motion for Summary Judgment In the motion for summary judgment, National Fire contends, as above, that Marion’s claims are prescribed and that it is entitled to summary judgment as a result. Marion’s two state-court petitions are identical and deficient. Assuming, however, that the petition did satisfactorily state a plausible claim for relief on its face, Marion’s has still failed to establish, by pointing to undisputed facts in the record, that the prescription of its claims was suspended. However, unlike its opposition to National Fire’s motion for judgment on the pleadings, Marion’s opposition to the motion for summary judgment specifically identifies the class of which Marion’s contends it is a member. That class action is Louisiana State, et al. v. AAA Insurance, et al. (E.D. La. 07-5528), known as the “Road Home litigation.” Marion’s argues the Road Home litigation, which was filed in Louisiana state court on August 23, 2007, interrupted the running of prescription on its claims against National Fire, because Marion’s was a member of that class and National Fire was involved in the action as a defendant. Because there has been no allegation that Marion’s applied for Road Home benefits prior to July 31, 2007, Marion’s has failed to carry its burden to show that the filing of the Road Home class suspended the prescription of its claims. Moreover, the Road Home litigation involved plaintiffs who sustained damages and losses to residential properties. In fact, the class in the Road Home litigation was defined as “current and former citizens of the State of Louisiana who have applied for and received or will receive funds through The Road Home Program…and to whom insurance proceeds are due and/or owed for damages sustained to any such recipient’s residence.” Therefore, even if Marion’s alleged it had applied for Road Home benefits prior to July 31, 2007, it is not clear whether Marion’s would qualify as a member of that class, as Marion’s seeks to recover for damages sustained by commercial properties. Therefore the motion for summary judgment was granted.

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[ COURTSIDE ]

L AW R E N C E N . R O G A K , E S Q .

Was the Cure Worse than the Disease? Homeowner Alleges that Tear Gas Remediation Chemical Made Her Sick

Lawrence N. ("Larry") Rogak has been practicing insurance law since 1981. He has defended over 23,000 lawsuits and arbitrations and has represented over 75 different insurance companies and self-insured corporations. Lawrence N. Rogak LLC is listed in Best's Recommended Insurance Attorneys, a distinction that requires written recommendations from at least 12 insurance carriers. A 1981 graduate of Brooklyn Law School, Mr. Rogak has published more books and articles on insurance law than any other New York attorney in the field.

Kendall v Amica Mut. Ins. Co. A tenant in plaintiffs’ home had to be subdued by police using tear gas. Plaintiffs had an adverse health reaction to the tear gas residue and their homeowners’ insurer hired a remediation company which used a chemical to remove the tear gas. Plaintiffs then alleged an adverse health reaction to the remediation chemical. The insurer and remediation company moved for summary judgment, which was granted by Supreme Court. The Appellate Division affirmed, holding that the deposition testimony of experts established that plaintiff ’s health symptoms were caused by her initial exposure to tear gas residue, not to the remediation chemical. — LNR uAppeal from an order of the Supreme Court (Teresi, J.), entered June 19, 2014 in Albany County, which, among other things, granted defendants’ motions for summary judgment dismissing the complaint(s). Plaintiffs own a three-level home in the town of Colonie, Albany County; plaintiffs previously utilized the main and second floors of the structure as their residence and rented out the basement level to a young man and his fiancée. On the morning of April 5, 2009, the Colonie Police Department was told that the male tenant had barricaded himself in the basement apartment and allegedly was threatening suicide, and a patrol officer was dispatched to undertake a welfare check. Later that afternoon, and following unsuccessful attempts to voluntarily extricate the tenant from the apartment, a SWAT team fired CS tear gas canisters into plaintiffs’ home. The tenant then was removed from the scene and transported to a local hospital.

As USA Decon was not licensed to perform heating, ventilation and cooling work, it subcontracted such work to defendant Duct and Vent Cleaning of America, Inc. Plaintiffs, who initially were not at home and thereafter watched the events unfold from a neighbor’s property, returned to their home at approximately 9:00 p.m. When plaintiff Holly Kendall (hereinafter Kendall) went down to the basement to reset the cable box,[FN1] she began coughing and her eyes and skin started to burn. Although Kendall sought treatment at a local hospital, she left without being seen by a physician or otherwise receiving treatment. Kendall and her husband, plaintiff Richard K. Kendall, returned to their home later that evening and remained there until the following day. After staying with relatives for two days, plaintiffs moved into a local hotel, where they remained for the next six-and-a-half months while their home was being remediated, repaired and cleaned. As a result of the April 2009 incident, plaintiffs filed a claim with their homeowner’s insurance carrier, defendant Amica Mutual Insurance Company; Amica, in turn, retained AEGIS Engineering Services to investigate plaintiffs’ claim. Although AEGIS solicited bids from a number of remediation contractors, plaintiffs—independent of such efforts—identified and

selected defendant USA Decon to perform the tear gas remediation. During the course of such work, which began on or about June 1, 2009 and lasted for approximately nine days, USA Decon employed various methods to clean plaintiffs’ property, including utilizing a neutralizing agent known as “Get the Odor Out.” As USA Decon was not licensed to perform heating, ventilation and cooling work, it subcontracted such work to defendant Duct and Vent Cleaning of America, Inc. During the course of its work on plaintiffs’ property, Duct and Vent utilized a deodorizing agent known as “EnviroCon.” The remediation work was completed in June 2009 and, when Kendall did a walk-through of the premises, she did not experience any symptoms. Post-remediation air quality testing conducted by the Occupational & Environmental Health Center of Eastern New York in June 2009 revealed “that the cleanup was thorough and the air in the residence [was] no longer contaminated by the effects of the CS tear gas and powder. No further sampling for CS tear gas [was] recommended.” Plaintiffs returned to their home in October 2009. Although Kendall purportedly began experiencing adverse health

FN1: Electrical service to the residence had been turned off earlier in the day at the request of law enforcement.

28 May 15, 2016 / INSURANCE ADVOCATE

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effects one month later, plaintiffs continued to live in their home until March 5, 2010, when Kendall allegedly was told by a physician at a local emergency room that she could not return to her residence. Plaintiffs again moved into a local hotel, and neither Kendall nor her spouse thereafter returned to the residence. Subsequent testing of plaintiffs’ home for tear gas residue—conducted by Needham Risk Management in March 2010—revealed that “[t]he analyte was detected but at a level too low to be accurately quantified by the method used.” Plaintiffs, believing such testing to be invalid, hired Certified Decontamination in November 2010 to conduct further testing of the residence for the presence of tear gas residue and any chemicals used during the decontamina-

tion process. Although the general manager of that company, Michael Rowzee, concluded that “the dwelling was not properly decontaminated [and] residue of at least one hazardous compound” remained, actual testing of the residence found no evidence of tear gas; similarly, no evidence of volatile organic compounds above an acceptable level were detected. Rowzee did report, however, that “[c]ompounds consistent with the decontamination of a dwelling using chlorine dioxide/chlorite were found,” and that the symptoms reported by plaintiffs were “consistent with an overexposure to chlorine dioxide, sodium chlorite and sodium chlorate.” Plaintiffs commenced action No. 1 against Amica in June 2011 and served an amended complaint in November 2012 alleging, among other things, breach of contract. In the interim, plaintiffs commenced

action No. 2 in April 2012 against Amica, Duct and Vent, USA Decon and its president, defendant Robert Demaret, alleging, among other things, negligence and toxic tort and seeking to recover for the injuries allegedly sustained.[FN2] Supreme Court granted Amica’s subsequent motion to dismiss the complaint in action No. 1 as to the breach of contract cause of action, finding such claim to be time-barred, and joined the surviving causes of action with those asserted in action No. 2. Following discovery, defendants each moved for summary judgment dismissing the complaint(s) and any asserted cross claims against them. After reviewing the voluminous record before it, Supreme Court granted defendants’ respective motions for summary judgment and dismissed the complaint(s) against them in their entirety. This appeal by plaintiffs ensued.[FN3]

FN2: Although action No. 2 also was commenced against Colonial Cleaners, such action subsequently was discontinued by stipulation upon the merits and with prejudice. Additionally, Kendall’s spouse apparently discontinued his personal injury claims, leaving him with only a derivative claim based upon Kendall’s asserted injuries. FN3: Although the parties raise various procedural issues with regard to the viability of certain of the claims and cross claims asserted in action Nos. 1 and 2, as we are persuaded—for the reasons that follow—that Supreme Court’s order should be affirmed in its entirety, we will address the substance of the claims asserted without parsing out the specific procedural arguments relative thereto. Additionally, as is apparent from a review of plaintiffs’ brief and their verified bills of particulars, Kendall is alleging damages based upon exposure “to the remaining CS tear gas in [plaintiffs’] home and the toxic chemicals [allegedly used in the remediation and cleaning process] when they returned to live in their house in October 2009 through March 5, 2010.” Hence, our analysis of the proof tendered in support of—and in opposition to—defendants’ respective motions will be limited to this post-remediation period.

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[ COURTSIDE ] We affirm. “It is well-established that an opinion on causation should set forth a plaintiff ’s exposure to a toxin, that the toxin is capable of causing the particular illness (general causation) and that [the] plaintiff was exposed to sufficient levels of the toxin to cause the illness [alleged] (specific causation)” (Parker v Mobil Oil Corp., 7 NY3d 434, 448 [2006]; see Cornell v 360 W. 51st St. Realty, LLC, 22 NY3d 762, 784 [2014]; Lindkvist v Travelers Ins., 111 AD3d 452, 452 [2013]; Nonnon v City of New York, 88 AD3d 384, 394 [2011]; Jackson v Nutmeg Tech., Inc., 43 AD3d 599, 601 [2007]). Although neither a “precise quantification” nor “an exact numerical value” is required in order to demonstrate specific causation, it remains “a plaintiff ’s burden to establish [that there was] sufficient exposure to a substance to cause the claimed adverse health effect” (Cornell v 360 W. 51st St. Realty, LLC, 22 NY3d at 784 [internal quotation marks and citation omitted]; see Ivory v International Bus. Machines Corp., 116 AD3d 121, 126 [2014], lv denied 23 NY3d 903 [2014]; Jackson v Nutmeg Tech., Inc., 43 AD3d at 602). As to the quality of proof required, “[t]he professional reliability exception to the hearsay rule . . . enables an expert witness to provide opinion evidence based on otherwise inadmissible hearsay, provided it is demonstrated to be the type of material commonly relied on in the profession” (Matter of Greene v Robarge, 104 AD3d 1073, 1074 [2013] [internal quotation marks and citation omitted]; see Matter of Dakota F. [Angela F.], 110 AD3d 1151, 1153 [2013], lv denied 22 NY3d 1015 [2013]; O’Brien v Mbugua, 49 AD3d 937, 938 [2008]). That said, “even if the reliability of the evidence is shown, it may not be the sole basis for the expert’s opinion on an ultimate issue in the case, but rather it may only form a link in the chain of data which led the expert to his or her opinion” (O’Brien v Mbugua, 49 AD3d at 938 [internal quotation marks, brackets and citation omitted]; see Anderson v Dainack, 39 AD3d 1065, 1067 [2007]). Here, in support of their respective motions for summary judgment, defendants submitted, among other things, the material safety data sheet for “Get the Odor Out,” various laboratory analyses and test results, the examination before trial testimony of Kendall, her spouse, Demaret (USA Decon), John Van Raalte (Occupational & Environmental Health Center of Eastern

New York), Timothy Gerardi (Amica) and Michael Vinick (Duct and Vent), as well as the expert affidavit and report of Jonathan Borak—a board-certified physician in internal medicine, occupational medicine and toxicology. Demaret and Vinick each described the extent of the work performed at plaintiffs’ residence, including the substances utilized during the course of the remediation and cleaning processes. Notably, Demaret testified that he had utilized “Get the Odor Out”—an “effective, nontoxic product”—on approximately 500 properties and had never received a single complaint. According to Demaret, he and his crew wore personal protective equipment for the first three days of the remediation project but thereafter wore “shorts and Tshirts” without experiencing any adverse health effects. Finally, Demaret testified that when he and Kendall did the final walk-through, neither he nor Kendall displayed any symptoms of tear gas exposure. Vinick offered similar testimony as to the scope of the work performed at plaintiffs’ residence, which was limited to cleaning the duct work, and stated that he had never received any complaints—from either his customers or his workers—of any ill effects stemming from the use of “EnviroCon” during cleaning operations. Vinick also testified that his employees did not complain of any symptoms of tear gas exposure as a result of performing work at plaintiffs’ residence. As noted previously, post-remediation air quality testing—the parameters of which were described by Van Raalte at his deposition—revealed “that the cleanup was thorough and the air in the residence [was] no longer contaminated by the effects of the CS tear gas and powder.” In addition to the foregoing, Borak provided a detailed affidavit and expert report relative to the issues of general and specific causation. Preliminarily, to the extent that plaintiffs take issue with the admissibility of certain of the test results and/or reports reviewed by Borak, we are satisfied that such documents are “the type of materials commonly relied on in the profession” (Matter of Greene v Robarge, 104 AD3d at 1074 [internal quotation marks and citation omitted]) and, further, that such materials were merely “a link in the chain of data” upon which Borak ultimately relied in forming his expert opinion CONTINUED ON PAGE 34

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(Anderson v Dainack, 39 AD3d at 1067 [internal quotation marks and citations omitted]). Accordingly, we discern no basis upon which to set aside Borak’s expert opinion or report (compare Borden v Brady, 92 AD2d 983, 984 [1983]). As to the substance of Borak’s report, Borak readily acknowledged that Kendall was exposed to tear gas residue on April 5, 2009 (and most likely the following day as well)—as the result of which she “developed acute symptoms that were consistent with the expected acute effects of tear gas exposure.” Borak further acknowledged that certain of the pulmonary symptoms of which Kendall now complains may have resulted from her acute exposure to tear gas on those dates. Borak noted, however, that there was no evidence that Kendall was exposed to tear gas residue following the remediation of plaintiffs’ residence. Absent evidence of such exposure, plaintiffs simply cannot establish that Kendall “was exposed to sufficient levels of the toxin to cause the pulmonary illness alleged (specific causation)” (Parker v Mobil Oil Corp., 7 NY3d at 448). As to the balance of Kendall’s physical complaints, Borak opined that it was “probable” that Kendall’s “skin complaints since April 2009 represented relapses and flares of her lifelong eczema,” noting that it would be “very unlikely” for CS tear gas to produce such symptoms six months after the initial exposure. Finally, Borak found “no evidence” to support a connection between Kendall’s urinary and gynecological symptoms and exposure to CS tear gas. With respect to the cleaning agents used, Borak noted that there was “no evidence of residual chlorine dioxide, sodium chlorite or sodium chlorate in plaintiffs’ home,” and no “evidence that . . . Kendall suffered ‘overexposure’ to any of those agents.” Additionally, Borak found “no evidence in the scientific literature that inhalation exposures to the cited compounds were associated with human pulmonary toxicity generally or reactive airways dysfunction syndrome (the specific ailment alleged by Kendall) in particular.” Further review of the medical literature also disclosed “no evidence” and/or “no data” to support a causal connection between exposure to chlorine dioxide, chlorite salts or chlorate salts and Kendall’s skin diseases, bladder infections or men34 May 15, 2016 / INSURANCE ADVOCATE

strual irregularities. Hence, Borak opined, there was no evidence to suggest that Kendall developed her various ailments as a result of any exposure to these particular compounds. The foregoing proof is more than sufficient to demonstrate a lack of specific causation relative to Kendall’s alleged postremediation exposure to tear gas and, further, a lack of both general and specific causation as to Kendall’s alleged exposure to the offending cleaning agents. Hence, defendants demonstrated their prima facie entitlement to judgment as a matter of law, thereby shifting the burden to plaintiffs to tender sufficient proof to raise a question of fact in this regard. Simply put, neither the assessment submitted by Rowzee (Certified Decontamination) nor the affidavits tendered by plaintiffs’ experts—John Quinn, Michael Klein and William Meggs—were sufficient as to, among other things, raise a question of fact relative to specific causation. The report authored by Rowzee reflects that no evidence of CS tear gas was found in plaintiffs’ residence during his November 2010 inspection thereof. Although Rowzee indicated that “compounds consistent with the decontamination of a dwelling using chlorine dioxide/chlorite were found” in plaintiffs’ residence, no attempt was made to quantify the levels thereof, much less demonstrate that such compounds existed in concentrations above acceptable levels. Klein, a professional engineer and certified hazardous materials manager, was critical of the remediation and cleaning processes, took issue with the cleaning agents employed and ultimately opined that the work was performed in a negligent manner, but his report failed to document the presence of any contaminants in plaintiffs’ home, nor did he make any causal connection between either the CS tear gas or the cleaning agents and Kendall’s resulting injuries. Quinn, a chemist, was similarly critical of the cleaning agent employed during the tear gas remediation phase of the work but, again, offered no causal connection between the contaminants allegedly remaining in plaintiffs’ residence and Kendall’s asserted ailments. Finally, Meggs, a board-certified physician in, among other things, medical toxicology, opined that Kendall’s “signs and symptoms were consistent with a re-exposure to CS tear gas, albeit at lower doses

than the doses classically associated with toxicity.” Meggs affidavit, however, ignores the fact that the record before us is devoid of any scientific testing documenting the post-remediation presence of CS tear gas in plaintiffs’ home. The record is similarly devoid of any measurable level of residual and allegedly hazardous cleaning agents in plaintiffs’ home. Absent such proof—and without expert testimony establishing, among other things, specific causation between the alleged contaminants and Kendall’s injuries—plaintiffs failed to raise questions of fact sufficient to defeat defendants’ respective motions (see Cleghorne v City of New York, 99 AD3d 443, 447-448 [2012]; Coratti v Wella Corp., 56 AD3d 343, 343-344 [2008]; Nawrocki v Coastal Corp., 45 AD3d 1341, 1342 [2007], lv denied 10 NY3d 710 [2008]). As Supreme Court succinctly stated, “allegations of inadequacies in the decontamination process do not equate to the existence of CS tear gas or other chemicals in plaintiffs’ home.” Plaintiffs’ remaining arguments, to the extent not specifically addressed, have been examined and found to be lacking in merit, and Amica’s arguments relative to the cross claims asserted against it are, in light of our conclusions, academic. Peters, P.J., McCarthy, Devine and Clark, JJ., concur. Ordered that the order is affirmed, with one bill of costs. [Prior Case History: 44 Misc 3d 1201(A), 2014 NY Slip Op 50943(U).][IA] 2016 NY Slip Op 00409 [135 AD3d 1202] January 21, 2016 Appellate Division, Third Department

IN THE ASSOCIATIONS CONTINUED FROM PAGE 27

ZALMA OPINION Grasping at straws the plaintiff, Marion’s, argued tolling of the statute of limitations without even reading the class action – limited to residences – that they claimed supported the tolling. The reason for prescription – statutes of limitation – is to protect defendants from stale claims where witnesses’ memories have faded and physical evidence has changed. Regardless of the horrors and damages caused by Katrina, attempting such a belated lawsuit is a waste of legal and judicial time and effort.[IA]

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