Insurance Advocate March 26, 2018

LADIES WHO LUNCH:

IBANY Serves 100 Women at Inaugural Women Executives’ Event

Vol. 129 No. 5 | March w26, 2018

INSIDE: PIANY

Legislative Agenda Gets Boost from Senate Action

NEW YORK

PAID FAMILY LEAVE

It’s here!

Bonding

Caring

Military Find out what you need to know:

www.newyorkpfl.com Copyright © 2018. ShelterPoint Life Insurance Company | Mktg#18-11 | G1 01/18

March 26 2018 | Volume 129 Number 5

10 L adies Who Lunch

Contents

IBANY Inaugural Women’s Executive Lunch

4 Foreword: What Do Home Run Hitters Hit?

Steve Acunto, Publisher 6 In the Associations: PIANY Legislative Agenda Gets Boost From Senate Action

PIANY Hails Removal of Onerous Items in Executive Budget Proposal 8

Guest Article: New York Extends Time to File Malpractice Claim David E. Richman and Ada Kozicz∆

12 Cyber Update: CyberCube Analytics Provides the First Inside-Out View of Risk Exposure for the Cyber Insurers 14 Guest Opinion: Diagnosis: Dereliction of Duty is the Diseases

Elizabeth Lee Vliet, M.D. 16 On My Radar: Why Labor Must Be Depreciated to Find ACV

Barry Zalma 18

Looking Back: December, 1994

20 Courtside: Burden of Proof is on Insurer to Show That Providers Failed to Respond to Verification Requests

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

Even Without a Good Denial, Plantiff Cannot Collect More than Fee Schedule Amount

Lawrence Rogak

[ FOREWORD ]

STEVE ACUNTO

What Do Home Run Hitters Hit?

Homers.

1 8 8 9

VOLUME 129 NUMBER 5 MARCH 26, 2018

EDITOR & PUBLISHER

uIn a season that will have a 21st Century Murderers’ Row coming off the Yankee bench (Stanton, Judge, Sanchez and the rest), Hank Greenberg has managed to make his way onto the line up card. Starr Companies, a his global insurance and investment organization, has entered into a multi-year sponsorship agreement with the New York Yankees of Major League Baseball. This sponsorship names Starr Companies as the Official Commercial Insurance Company of the New York Yankees starting with the 2018 regular season. Former Yankees shortstop Bucky Dent, remembered for the home run that helped drive the Yankees to their 1978 championship with a crushing win over the Red Sox, joined Mr. Greenberg in kicking off the sponsorship at an employee reception held on March 12th. Fans will see Starr Companies’ branding throughout the regular season on a billboard on Yankee Stadium’s right centerfield scoreboard, on in-stadium TVs, on the Terrace level LED boards, as well as when entering the stadium by the Great Hall. Additionally, Starr will have full-page advertisement within each issue of Yankees Magazine. In addition, during the 2019 season, Starr Companies will also celebrate its 100th anniversary in China milestone during a future Yankees game. “We are proud to be the Official Commercial Insurance Company and a sponsor of the New York Yankees,” stated Maurice R. Greenberg, chairman and chief executive officer. “It’s an honor to partner with one of the most trusted and respected franchises in professional sports and an iconic New York institution.” Bryan Calka, vice president of partnerships for the New York Yankees, said: “We are excited to partner with such a prestigious company and are looking forward to many years of mutual success.” Hank Greenberg hits the long ball, supporting the team, its fans and a great New York tradition…….

Speaking of the long ball and great New York teams, following a record-breaking 2016, New York Life reached a new company high for operating earnings, insurance and annuity sales, assets under management, and surplus, now paying the largest dividend payout in company’s history. Company records were also achieved in the metrics that directly capture the value New York Life delivers to its policy owners: dividends and benefits paid to eligible policy owners and beneficiaries. In November 2017, New York Life announced the largest dividend payout in the company’s history, up 36 percent since 2012.In an important part of the announcement, the Company credited its agency force: “The company’s outstanding bottom line results were driven by company records in a number of top line measures, none more important than sales of life insurance.

New York Life achieved its 21st consecutive year of growth in life insurance sales in 2017, with sales through New York Life agents up 4 percent over the prior year,”.

John Kim, president of New York Life, said, adding: “Personal guidance, delivered by the dedicated and diverse agents of New York Life, remains at the heart of our business model. At the same time, the company continues to invest in digital capabilities to enhance the service our field force provides. We applaud the outstanding commitment of our 12,000 professional agents, who day after day help people make the important decisions needed to achieve financial security. These results again validate New York Life’s business strategy, which pairs our market-leading life insurance and agency franchise with a diverse set of supporting businesses, all aligned with the interests of our policy owners,” Ted Mathas chairman and CEO of New York Life noted. “While markets fluctuate, our time-tested approach has enabled New York Life to consistently grow the value we deliver to policy owners year over year while continuing to provide peace of mind to the families and businesses who rely on us.”

CONTINUED ON PAGE 6 4 March 26, 2018 / INSURANCE ADVOCATE

S I N C E

Steve Acunto 914-966-3180, x110 sa@cinn.com CONTRIBUTORS Jamie Deapo Kelly Donahue-Piro Christopher Paradiso Lawrence N. Rogak N. Stephen Ruchman Stephen M. Soble Barry Zalma PRODUCTION & DESIGN ADVERTISING COORDINATOR Director of Operations and Creative Services Gina Marie Balog-Sartario 914-966-3180, x113 g@cinn.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) 613-1595 www.cinn.com | info@cinn.com President and CEO Steve Acunto

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What’s New?

What’s Not?

Now a billion dollar company . . . and still growing! (Sales passed the mark in 2016.)

Secure financial strength that comes from being a member of the Berkshire Hathaway family.

Nationwide geographical scope.

Our A+ (”Superior”) A.M. Best Company Rating.

An increasingly robust product suite that features Workers’ Compensation, Businessowner’s Policy, Commercial Auto, Umbrella, and Professional Liability coverage.

Average annual growth in premium in excess of 25% per year for the past five.

Ongoing product and service enhancements to win renewals and keep a high retention ratio.

Our focus on being data-driven and using business intelligence to gain a competitive edge.

A superior combined ratio that (according to A.M. Best) outperforms our peers.

Our commitment to distribution through independent agents!

Enhanced infrastructure to support growth.

Balancing Change with Continuity!

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Broader appetite for select risks (including Total Insured Property Values as high as $50 million for certain industries and risks).

G

[ IN THE ASSOCIATIONS ]

FOREWORD

PIANY Legislative Agenda Gets Boost From Senate Action uThe Professional Insurance Agents of New York State has focused upon several issues in its Position Paper – in play now as the Budget appears completed and the session turns to other legislation.

As we go to press, PIANY is thanking Sen. James L. Seward, R-51, and the state Senate for passing S.3960/A.7012, a bill that would amend the Insurance Law Section 2123 “to allow insurance producers who maintain an active membership in a professional insurance association to receive continuing-education credit, per a biennial period”. The bill defines “statewide professional insurance producer association” as “an association that has been in existence for at least 10 years and derives its membership from individuals who received their insurance producers’ licenses from the superintendent of insurance for the

New York State Department of Financial Services”. Several statewide insurance associations have endorsed the bills.

“PIANY supports S.3960/A.7012 and any bill that would reform the insurance producer licensing process to make CE compliance and renewals easier,” said PIANY President Fred Holender, CLU, CPCU, ChFC, MSFS. “This bill recognizes that insurance producers—who are involved in a professional association, such as PIANY—are knowledgeable about the insurance industry and it would reward them for their professionalism by granting them six CE credits every other year. This would lessen the burden that many agents feel when they are trying to maintain their licenses in various states and insurance classes. The association urges the Assembly to vote on and pass this legislation.”[IA]

PIANY Hails Removal of Onerous Items in Executive Budget Proposal uThe Professional Insurance Agents of New York State is pleased to have defeated a proposal to enact massive and unwarranted penalty increases for violating the state’s Insurance Law, while protecting insurance consumers against insurance adjusters who are convicted of felonies, both of which were proposed originally in the executive budget.

The budget proposal for a 900 percent increase in Insurance Law penalties—from $1,000 per offense to $10,000 was dropped when lawmakers finalized New York’s $168 billion spending plan for 2018-19 on Saturday. The final budget does not include any increase or change in the current penalties under the Insurance Law. The final budget also left out licensing for insurance adjusters who have been convicted of a felony, which PIANY had opposed.

6 March 26, 2018 / INSURANCE ADVOCATE

“For the second consecutive year, the New York State Department of Financial Services tried to increase fines by an unnecessarily large amount,” said PIANY President Fred Holender, CPCU, CLU, ChFC, MSFS. “Changing the fines from $1,000 to $10,000 could be detrimental to smaller insurance agencies. PIANY is working to protect the insurance producers and the insurance-buying community, and we are pleased that lawmakers recognized the burden of the fees and the danger of licensing adjusters convicted of felonies.”

Eliminating the state budget fee increase was one of the items on PIANY’s 2018 legislative agenda (pia.org/IRC/qs/ qs_other/QS31003.pdf). The association also has worked toward: producer licensing reform; eliminating bait-and-switch

CONTINUED ON PAGE 4

Record Surplus Continues to Drive Unsurpassed Financial Strength Ratings New York Life is in the enviable position of declaring all-time company highs in both dividend payout and surplus, and remains one of only two companies out of more than 900 in the industry to receive the highest possible financial strength ratings currently awarded to any life insurer by all four major financial rating agencies.

New York Life’s financial strength reflects the performance of the company’s insurance business, including strong investment results from its $242.5 billion general account portfolio despite a persistent low interest rate environment, and contributions from the company’s diverse set of businesses. While these results also include a one-time $600 million reduction in surplus related to tax reform, the company expects that tax reform will positively impact its financial position over the long term.

Additional performance highlights as of December 31, 2017: • Reached $2.06 billion in operating earnings[1] for 2017, the highest in the company’s history.

• Paid over $10.6 billion in total dividends and benefits to policy owners .

• Announced a dividend payout of $1.78 billion in 2018, a 36 percent increase since 2012.

• Grew surplus (including the asset valuation reserve) to $24 billion.

• Reported life insurance sales of over $1.3 billion and individual life insurance in force of $993 billion.

• Reached a record high in annuity sales of $13.8 billion.

• Reported a general account balance of $242.5 billion in cash and invested assets, and total assets under management of $586 billion.[IA] practices; scaffold law/tort reform; cybersecurity regulations; eliminating the 30day rule for the New York State Insurance Fund and permitting commission payments through the NYSIF; and standardizing hurricane deductible triggers for coastal home insurance policies.[IA]

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2015-16 2014-15 2013-14

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Retail

2003 Bakeries 7998 Hardware Store 8001 Florist Store 8006 Food/Fruit/Deli/Grocery 8008 Clothing/Shoe/Dry Goods 8013 Jewelry Store 8016 Quick Printing 8017 Retail (Not Classified) 8031 Meat/Fish/Poultry Store 8033 Supermarkets 8039 Department Store 8043 Retail (including Food) 8044 Furniture Store 8046 Auto Accessories 8072 Book/Music Store 8105 Leather Store 8382 Self serve gas w/conv. store Residential Care Facilities

8864 Developmental Organizations 8865 Residential Care Facility Hotel/Motel 9052 Hotels NOC 9058 Restaurants in Hotels

Wholesale

4310 Greeting Card Dealer 7390 Beer/Ale Dealer 7999 Hardware Store 8018 Wholesale Store/NOC 8021 Meat, Fish Dealer-Wholesale 8032 Dry Goods, Clothing, Shoe 8047 Drug Store 8048 Fruit & Vegetables 8111 Plumbers Supplies Dealer-Wholesale Restaurant 9061 Clubs 9071 Full Service Restaurants 9072 Fast Food Restaurants– Including Drivers 9074 Bars & Taverns Social and Health Services 8854 Home Health Care – Prof. Employees 9051 Home Health Care – Non Prof. Employees 8857 Counseling – Social Work – Traveling Oil and Gas Dealer 5193 Oil Burner Installation 8350 Fuel Oil & Gas Dealer 8353 Gas Dealers, LPG & Drivers

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[ GUEST ARTICLE ]

DAVID E. RICHMAN AND ADA KOZICZ

New York Extends Time to File Malpractice Claim u Governor Andrew Cuomo has signed a new law, known as “Lavern’s Law,” that extends the amount of time a patient has to file a medical malpractice claim for a missed cancer or malignant tumor diagnosis. Patients now have 2 1/2 years to file a claim from the date the misdiagnosis is discovered by the patient, or the date it should have been reasonably discovered by the patient, rather than from the date the misdiagnosis occurred.

Since the time to file a claim does not begin to run until the date of discovery, the new law may significantly increase the number of claims that will be filed.

However, the law also includes a cap of seven years, meaning that no patient can file a claim for a missed cancer or malignant tumor diagnosis if more than seven years have passed from the date of the alleged misdiagnosis or the date of the patient’s last treatment of continuous care with the health care provider.

The law was named after Lavern Wilkonson, who died of cancer that could have been curable if properly detected and treated sooner. Three years prior to her death, a radiologist noticed a suspicious mass in Lavern’s lung but did not warn her about it. Under the old law, Lavern’s family could not file a malpractice claim against the radiologist because more than 2 1/2 years passed since the alleged malpractice. Yet, under the new law, this type of claim would not be barred.

With this legislative change, some critics believe that health care costs may increase as health care providers will be incentivized to order extensive, and arguably unnecessary, tests to reduce their liability exposure and adequately confirm that a patient does not have cancer or a malignant tumor.

While on its face, Lavern’s Law significantly increases the period of time within which a patient may bring suit for an alleged missed cancer diagnosis, the relief presumed to be afforded by 8 March 26, 2018 / INSURANCE ADVOCATE

We anticipate that the controversy will be less about when a definitive diagnosis was made but when the cancer “should have been discovered.” the Law is not clear-cut. In fact, this will likely result in additional litigation between patients and their physician over the question of when the Statute of Limitations should be triggered for the purpose of determining when a “failure-to-diagnose-cancer-claim” should have been brought.

We anticipate that the controversy will be less about when a definitive diagnosis was made but when the cancer “should have been discovered.” The patient’s attorney will likely argue that the Statute of Limitations should begin to run as of the date of diagnosis. The attorneys for the health care provider will undoubtedly argue that an earlier date – the date on which the cancer should have been diagnosed – should apply. The latter argument requires a far more subtle analysis than simply focusing on the date a definitive diagnosis was made. The argument must look at such factors as the onset of symptoms that ultimately were proven to be the early signs of the cancer that was eventually diagnosed.

New York courts have grappled with this type of analysis for several years in applying a so-called “discovery rule” to toxic tort claims to remedy the perceived unfairness of a statutory period that expired years before the disease was or could have been diagnosed. Decisions resolving this question of when a disease “should have been diagnosed” in the toxic tort area have found the courts to be quite receptive to defense arguments and we anticipate that those precedents will be applied to claims seeking to be brought with the benefit of Lavern’s Law to the same effect.[IA]

David E. Richman concentrates his practice in the areas of medical malpractice defense, construction-site accidents, New York Labor Law litigation, pharmaceutical product liability, product liability defense and toxic torts.

The head of Rivkin Radler’s Complex Tort & Product Liability and Medical Malpractice Defense Practice Groups, and a former member of the firm’s executive committee, David has tried hundreds of complex cases in both state and federal courts, many carrying million-dollar exposures for the clients he has represented.

Ada Kozicz concentrates her practice on regulatory and transactional matters within the healthcare industry.

An associate in Rivkin Radler’s Health Services Practice Group, Ada represents healthcare providers, medical groups, hospitals, outpatient facilities, and other business entities that serve the healthcare industry.

She advises clients on a wide variety of legal matters, including formation of business entities, joint ventures, employment negotiations, and compliance programs involving Medicaid and Medicare, Stark and Anti-Kickback Law, and the False Claims Act. Ada also practices in Rivkin Radler’s Privacy, Data & Cyber Law Practice Group, where she advises clients both in and outside of the healthcare industry on complying with HIPAA and the HITECH Act and responding to any threats or breaches to an organization’s privacy and cyber security.

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LADIES WHO LUNCH:

IBANY Serves 100 Women at Inaugural Women Executives’ Event Nearly 100 people braved the latest winter storm on Thursday March 22nd to attend “Breaking Through & Moving Up: A Panel Discussion Featuring Women Executives” presented by the Insurance Brokers’ Association of the State of New York (IBANY) at The Down Town Association in New York City.

Panelists at IBANY’s debut women’s luncheon – a sold-out event that was open to men as well – addressed the unique challenges women face in the insurance industry, the barriers they encountered and how they broke through the glass ceiling to get where they are today. The panel featured Theresa Lally, EVP Property Broker at AmWINS; Aileen Marchese, Senior Vice President – Northeast at Ironshore; and Christine Sadofsky, Managing Partner of Integro’s Entertainment Division. David J. Bresnahan, Executive Vice President of Berkshire Hathaway Specialty Insurance, moderated the discussion.

Among other topics, the panelists addressed recent headlines about sexual harassment and discrimination in the workplace and stressed the importance of speaking up if one experiences or witnesses inappropriate behavior.

“You need to raise your hand,” Lally said. “Advocate for yourself. Orchestrate the resources to advocate for yourself. Don’t stay quiet.”

10 March 26, 2018 / INSURANCE ADVOCATE

Asked what advice they would give young women entering the industry, the three panelists offered a variety of responses.

“Knowledge is key,” Sadofsky said. “If you know your business better than anyone else on your team, no one can knock your intelligence. Knowledge is power and will take you further than anything in your career.”

The event’s coordinator, Amy Kansay of Arthur J. Gallager, introduces the event’s moderator and panelists.

“Be on time for work,” said Marchese.

“If you want increased responsibility, show that you are responsible.”

“We were thrilled with the turnout and the response to this program,” said IBANY President Paul Rovelli, Vice President, AmWINS Brokerage of NY. “The weather had us fearing the worst, but only a few attendees had to cancel, which speaks to our members’ commitment to educating themselves and supporting their colleagues in the industry.”

Rovelli also expressed gratitude to IBANY President, Paul Rovelli of AmWINS Brokerage of NY, welcomes attendees and behalf of IBANY and the Board of Directors.

the event’s sponsors: Ironshore, PL Risk Advisors, AmWINS Brokerage of NY and Markel Assurance Northeast Region.

IBANY: More than a century old, the Insurance Brokers’ Association of the State of New York (IBANY) has represented the interests of the New York Metro insurance marketplace. Overseen by a volunteer board of highly influential

A packed room of attendees enjoyed lunch at the Down Town Association prior to the kick-off of the event’s panel discussion.

brokers, IBANY provides a platform for education, professional development and networking, serving all generations of the insurance industry, including top level executives, experienced professionals and emerging leaders.[IA] INSURANCE ADVOCATE / March 26, 2018 11

[ CYBER UPDATE ]

CyberCube Analytics Provides the First Inside-Out View of Risk Exposure for the Cyber Insurers

Trident Capital Cybersecurity and Symantec Ventures support the Launch u CyberCube Analytics, an innovator in cyber risk analytics for the insurance industry, has emerged from “stealth mode”, backed by investment from Silicon Valley based investor Trident Capital Cybersecurity and by technology developed by Symantec Corporation. The CyberCube team brings together experts in insurance, risk modeling and cyber security to provide the industry’s first risk modeling platform that provides an inside-out view of risk exposure to cyber insurers, reinsurers and reinsurance brokers.

CyberCube also announced the general availability of its risk-modeling platform, which processes terabytes of unique data sets and applies multidisciplinary analytic methods. As part of the company’s launch, Symantec has contributed technology assets, developed in collaboration with leading insurance underwriters, in return for an equity stake. In addition, Symantec will provide an exclusive, proprietary telemetry data license to augment CyberCube’s risk models. The investment will be managed under the Symantec Ventures portfolio.

“Symantec Ventures was created to be a catalyst for critical breakthroughs and innovation in the cyber security industry,” said Symantec CEO, Greg Clark.

“We are excited about CyberCube’s ability to address the needs of the cyber insurance market and believe that they are well positioned to realize the full potential of this large opportunity.

We partnered with Trident Capital Cybersecurity to launch CyberCube because of their proven success in growing cyber security companies.”

12 March 26, 2018 / INSURANCE ADVOCATE

tion visit www.cybcube.com or contact info@cybcube.com.

Trident Capital Cybersecurity is a $300 million fund exclusively investing in cybersecurity companies. The firm brings deep industry expertise and a strong network of relationships.

Trident’s 50-person Cybersecurity Advisory Council includes industry CEOs, security entrepreneurs, senior information security executives, and former government security leaders. Portfolio companies now include CyberCube and 4iQ, Attivo, Appthority, Bayshore Networks, BehavioSec, ID Experts, IronNet Cybersecurity, Prevoty,

“Cyber is one of the most important risks facing society in the 21st century and therefore it is one of the most important risks facing the insurance industry.”

- Pascal Millaire, CEO of CyberCube

“Cyber is one of the most important risks facing society in the 21st century and therefore it is one of the most important risks facing the insurance industry,” said Pascal Millaire, CEO of CyberCube. “With the backing of Trident Capital Cybersecurity and Symantec Ventures, CyberCube is uniquely positioned to help insurers underwrite and model cyber risk in a way that no one else can.”

CyberCube is dedicated to delivering the world’s leading cyber risk analytics for the insurance industry.

The company’s Software as a Service platform helps insurance companies make more informed, effective and efficient decisions when underwriting cyber risk and managing cyber risk aggregation. CyberCube’s enterprise intelligence layer provides insights on 7 million companies globally and includes modeling on over one thousand single points of technology failure. The platform leverages distinctive sources of data and advanced analytic methods to solve the specific challenges faced by the insurance industry. For more informa-

and ReversingLabs. Trident’s principals have been investing in cybersecurity since 1998 and have made a total of 34 cybersecurity investments. For more information, please visit www.tridentcybersecurity.com.

Symantec Corporation (NASDAQ: SYMC), the world’s leading cyber security company, helps organizations, governments and people secure their most important data wherever it lives.

Organizations across the world look to Symantec for strategic, integrated solutions to defend against sophisticated attacks across endpoints, cloud and infrastructure. Likewise, a global community of more than 50 million people and families rely on Symantec’s Norton suite of products for protection at home and across all of their devices. Symantec operates one of the world’s largest civilian cyber intelligence networks, allowing it to see and protect against the most advanced threats. For additional information about the company’s venture capital arm Symantec Ventures, please visit www.symantec.com/theme/ symantec-ventures.[IA]

518.583.0300 | www.mountainmedia.com

[ GUEST OPINION ]

ELIZ ABETH LEE VLIET, M.D.

Diagnosis: Dereliction of Duty is the Diseases uMost Americans have at some time been a patient needing medical care.

How did you get the right help for what ailed you? Your doctor had to evaluate you and identify the problem, or diagnosis, needing treatment before the correct treatment could be prescribed.

Physicians cannot treat you effectively if they do not first establish the correct diagnosis. Physicians “ready” themselves to treat by going through a systematic process of evaluating the patient, and only then are able to “aim” treatment at the proper “target, then “fire” a prescription to help the patient.

We have a duty to go through this process in the right sequence - it is not ethical for physicians just “fire” off a treatment without aiming our treatment at the right target.

But that reverse course - Fire, Aim, Ready - is exactly what the mainstream media, politicians, law enforcement officials, and liberals are doing in the debate over “Gun Control” following the Parkland, Florida, shooting. One “treatment”—restrict gun rights (i.e. self-defense rights)—is recommended for everyone across the country, whether or not it actually addresses the correct “disease” that led to Nicholas Cruz’s horrific killing spree. There has been little effort to evaluate what led to this young man’s slaughter of his high school peers, or to even consider other “treatments.”

Instead, the knee-jerk response to the Parkland shooting has been exactly like the reactions to other killings by mentally disturbed persons at Virginia Tech, Tucson Safeway, Ft. Hood, the Orlando nightclub, San Bernadino, and most recently Central Michigan University campus: ban “assault” weapons, confiscate guns from law-abiding citizens, vilify the NRA, and/or revoke the Second Amendment.

Physicians have a legal and ethical duty to carry out a proper diagnostic evaluation of their patients, and only then recommend treatment. Why don’t 14 March 26, 2018 / INSURANCE ADVOCATE

Physicians have a legal and ethical duty to carry out a proper diagnostic evaluation of their patients, and only then recommend treatment.

we apply similar standards to evaluating the problem of violence and killing in our society?

Many contributing factors beg to be discussed—many originating in the “progressive” social policies of the past 40-50 years: • The breakdown of our traditional values and the removal of God from the public arena; • The breakdown of the family, and the marked increase in children growing up without fathers in the home; • Loss of respect for human life with the dramatic increase in abortion on demand; • The constant exposure to violence in games, TV, movies and social media from early childhood on; • Closing state mental facilities and putting mentally ill out on the streets without adequate treatment resources or support systems; • 10-minute “med-check” psychiatry visits and overuse of psychoactive medicines without adequate time for evaluation, or development of non-pharmacologic therapies; • Emphasis on “political correctness” by public officials, including school boards, and then failing to report seriously disturbed students for CONTINUED ON PAGE 22

Dr. Vliet has been a leader in patient centered, individualized medical care.

Since 1986, she has practiced medicine independent of insurance contracts that interfere with patient-physician relationships and decision-making. Dr. Vliet focus is medical freedom and free market approaches to healthcare. Dr. Vliet is the founder of Vive Life Center and Hormone Health Strategies with medical practices in Tucson AZ and Dallas TX, specializing in preventive and climacteric medicine with an integrated approach to evaluation and treatment of women and men with complex medical and hormonal problems from puberty to late life.

Dr. Vliet has appeared on FOX NEWS, Cavuto, Stuart Varney Show, Fox and Friends, Sean Hannity and many nationally syndicated radio shows across the country as well as presented hundreds of Healthcare Town Halls addressing the economic and medical impact of the 2010 healthcare law and free market reforms, as well as seminars and radio shows on healthcare reform, Men’s Health and Women’s Health.

Dr. Vliet speaks as an independent physician, not as an official spokesperson for any organization or political party. Dr. Vliet has no financial ties to any health care system or health insurance plan. Her allegiance and advocacy is to and for patients.

…10-minute “med-check” psychiatry visits and overuse of psychoactive medicines without adequate time for evaluation, or development of non-pharmacologic therapies…

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[ ON MY RADAR ]

BARRY Z ALMA

Why Labor Must Be Depreciated to Find ACV Materials and Labor Depreciate to Reach Actual Cash Value uThe intent of a first party property insurance policy is to place the insured, after a loss, back in the same financial situation the insured was in before the loss. Insurance does not rebuild a damaged structure. It pays the insured sufficient money to rebuild using material and labor of like kind and quality.

No insurer or builder can replace a 20-year-old damaged roof with a 20-year-old roof. When a policy insures only up to the actual cash value (ACV) of a loss after a peril insured against damages property its value is paid to indemnify the insured.

That amount is determined, when there is no definition of ACV in the policy, by either reducing the cost of replacement by physical depreciation, by determining the difference between the fair market value of the property before and after the loss, or by applying the broad evidence rule to establish ACV. In Rosemary Henn, Individually And On Behalf Of Others Similarly Situated v. American Family Mutual Insurance Company, No. S-16-597, 295 Neb. 859, Supreme Court Of Nebraska (February 17, 2017) a class action attempt was made to profit from a small loss by claiming bad faith when an insurer included the value of labor as well as materials in reaching an ACV indemnity payment.

THE REFERRAL TO THE SUPREME COURT

The U.S. District Court for the District of Nebraska certified the following question to the Nebraska Supreme Court: “May an insurer, in determining the ‘actual cash value’ of a covered loss, depreciate the cost of labor when the terms ‘actual cash value’ and ‘depreciation’ are not defined in the policy and the policy does not explicitly state that labor costs will be depreciated?”

16 March 26, 2018 / INSURANCE ADVOCATE

When a policy insures only up to the actual cash value (ACV) of a loss after a peril insured against damages property its value is paid to indemnify the insured.

The dispute centers on whether labor costs can be depreciated in determining the actual cash value of covered damaged property under a homeowner’s insurance policy. The parties agree that actual cash value is replacement cost minus depreciation, but disagree as to whether the labor component can be depreciated.

BACKGROUND

The policy allowed for payment of full replacement cost. However, it allowed the insured to take only ACV and, after replacing the property, to receive the difference between replacement cost value (RCV) and ACV. The policy does not define “actual cash value” or depreciation, or describe the methods employed to calculate ACV. The policy also does not explain how American Family determines the difference between replacement cost value and actual cost value.

After inspecting the storm damage, American Family provided Henn with a written estimate that explained the calculations for replacement cost value, actual cash value, and depreciation for the claim. The written estimate defined actual cash value as being “based on

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/ZalmaLi brary. 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/ProductDetails.aspx?produc tId=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.

[ ON MY RADAR ] the cost to repair or replace the damaged item with an item of like kind and quality, less depreciation.” The estimate further stated that “replacement cost” was the “cost to repair the damaged item with an item of like kind and quality, without deduction for depreciation.” In the estimate, American Family’s adjuster determined that the cost to repair and replace the damaged portions of Henn’s home with new materials would be $3,252.60. From this amount, American Family subtracted $276.67 in depreciation, to arrive at an actual cash value amount of $2,975.93. American Family then subtracted Henn’s $1,000 deductible, leaving her with an actual cash value payment of $1,975.93. The depreciated amount includes both material costs and labor costs. The estimate did not show how much it depreciated from building materials as opposed to labor.

Henn failed to make a claim for payment of replacement costs.

Henn sued and American Family moved for summary judgment in the U.S. District Court.

ANALYSIS

American Family argued that ACV, as used in the policy, is not ambiguous because the term incorporates the concept of depreciation from the cost of repairs, which includes both materials and labor. American Family further contended that ACV is merely an interim payment and that depreciation of both materials and labor properly indemnifies the insured.

A court interpreting an insurance policy must first determine, as a matter of law, whether the contract is ambiguous. In an appellate review of an insurance policy, the court construes the policy as any other contract to give effect to the parties’ intentions at the time the writing was made. Where the terms of a contract are clear, they are to be accorded their plain and ordinary meaning. There is no legal requirement that each word used in an insurance policy must be specifically defined in order to be unambiguous or insurance policies would be hundreds of pages and impossible to read and understand.

The Nebraska Supreme Court has set forth three approaches to determining actual cash value:

The Supreme Court concluded that the term “ACV” is unambiguous and that depreciation of labor does not lead to underindemnification and failure to depreciate labor would result in overindemnification.

(1) Where market value is easily determined, actual cash value is market value, (2) if there is no market value, replacement or reproduction cost may be used, (3) failing the other two tests, any evidence tending to formulate a correct estimate of value may be used (the “broad evidence rule”). [Olson v. Le Mars Mut. Ins. Co., supra note 2, 269 Neb. at 806, 696 N.W.2d at 458, citing Sullivan v.

Liberty Mutual Fire Ins. Co., 174 Conn.

229, 384 A.2d 384 (1978)].

In its determination of the actual cash value of the property involved an insurer may consider every fact and circumstance which would logically tend to the formation of a correct estimate of the building’s value, including the original cost, the economic value of the building, the income derived from the building’s use, the age and condition of the building, its obsolescence, both structural and functional, its market value, and the depreciation and deterioration to which it has been subjected.

Nebraska applies, for partial losses, the broad evidence rule. The rule allows a fact-finder to consider what the life of the destroyed property, both materials and labor, would have been, as well as any other relevant evidence presented.

LABOR CAN BE DEPRECIATED

ACV is not a substantive measure of damages, but, rather, a representation of the depreciated value of the property immediately prior to damages. Instead, ACV is intended only to provide a depreciated amount of the replacement

cost to start the repairs or, if the insured decided not to repair, the value of the property damaged or destroyed.

The Supreme Court found that the term ACV is not ambiguous in the policy. The unambiguous definition of ACV is a depreciation of the whole. As such, the insured is not underindemnified by receiving the depreciated amount of both materials and labor. A payment of ACV that included the full cost of labor would amount to a prepayment of unearned benefits. An insured is properly indemnified when the amount calculated for ACV equals the depreciated value of the property just prior to the loss, which includes both materials and labor.

Under both the market value test and the broad evidence rule, all relevant evidence is considered in determining the value. Both materials and labor are elements that help establish the value of the property immediately prior to the time of loss. ACV applies to the insured property as a whole. Therefore, the Supreme Court refused to accept the distinction that Henn attempted to read into the policy. The Supreme Court concluded that the term “ACV” is unambiguous and that depreciation of labor does not lead to underindemnification and failure to depreciate labor would result in overindemnification.

The Supreme Court, therefore, answered the certified question in the affirmative.

ZALMA OPINION

The Supreme Court of Nebraska applied common sense to find that to determine ACV. The insurer must first determine the RCV loss, deduct from that amount the physical depreciation the damaged item had incurred before the loss, and thereby provide indemnity to the insured. A product, whether a widget, an air conditioner, a roof or a dwelling, requires the labor of a person to put together the item and make it a whole. The materials used are only a small part of the value while the labor of the people making it is a major part of its value. If only the value of the materials are depreciated the insured will recover more than the policy promised. [IA] INSURANCE ADVOCATE / March 26, 2018 17

[ LOOKING BACK ]

INSURANCE ADVO CATE - 25 YEARS AGO

18 March 26, 2018 / INSURANCE ADVOCATE

INSURANCE ADVO CATE - 25 YEARS AGO

[ LOOKING BACK ]

INSURANCE ADVOCATE / March 26, 2018 19

[ COURTSIDE ]

LAWRENCE RO GAK

Burden of Proof is On Insurer to Show That Provider Failed to Respond to Verification Requests TAM Med. Supply Corp. v Travelers Ins. Co. Edited by Lawrence N. Rogak In this no-fault suit, the Appellate Term holds that where the insurer’s defense is that the plaintiff failed to respond to verification requests, the burden of proof at trial is on the insurer to show that the verification remains outstanding.—LNR In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to pro-

Contrary to plaintiff’s assertion, the Civil Court properly stated that plaintiff bears the burden at trial of proving its prima facie case.

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.

vide verification which defendant had requested. Plaintiff opposed the motion and annexed its verification responses to

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[ COURTSIDE ] its opposition papers. Plaintiff appeals from so much of the order of the Civil Court entered September 29, 2014 as declined to make a finding, pursuant to CPLR 3212 (g), that plaintiff had timely submitted its bills to defendant and stated, “At trial [plaintiff] has the burden to prove its prima facie case and whether it fully complied with [defendant’s] verification requests.”

Contrary to plaintiff ’s assertion, the Civil Court properly stated that plaintiff bears the burden at trial of proving its prima facie case. However, inasmuch as it is a defendant’s burden at trial to show that it has a meritorious defense and that such a defense is not precluded, the Civil Court improperly determined that, at trial, plaintiff must prove “whether it fully complied with [defendant’s] verification requests.”

Accordingly, the order, insofar as appealed from, is modified by striking the provision therein that, at trial, plaintiff has the burden to prove “whether it fully complied with [defendant’s] verification requests.”

2018 NY Slip Op 50315(U) Decided on March 9, 2018 Appellate Term, Second Department

the excessive fees. The Appellate Term reversed, and granted summary judgment to the insurer, holding that it had established what the correct fee schedule was, and paid that amount. -- LNR Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.). The judgment, entered pursuant to the January 27, 2016 order granting plaintiff ’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $1,103.32. ORDERED that the judgment is reversed, with $30 costs, the order entered January 27, 2016 is vacated, plaintiff ’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff seeks the unpaid balance of two claims for services that plaintiff rendered from May 7, 2014 through July 16, 2014. Plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff seeks to recover amounts which are in

Even Without a Good Denial, Plaintiff Cannot Collect More Than Fee Schedule Amount Oleg’s Acupuncture, P.C. v Hereford Ins. Co. Edited by Lawrence N. Rogak The New York PIP regulations, as amended on 01 April 2013, do not permit medical providers to charge more than the amounts set forth in the Workers Compensation Fee Schedule, even if the insurer fails to timely or properly deny the claim. In this suit, the insurer did not issue a timely denial but paid the bills at the correct fee schedule amount. Civil Court granted judgment to plaintiff for

excess of the amounts permitted by the workers’ compensation fee schedule.

Defendant supported its cross motion with an affidavit by its certified medical coder and biller, which affidavit was sufficient to establish, prima facie, that defendant had fully paid the claims in accordance with the fee schedule. In opposition, plaintiff failed to raise a triable issue of fact, as plaintiff submitted only an affirmation by its counsel, who did

Plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff seeks to recover amounts which are in excess of the amounts permitted by the workers’ compensation fee schedule. not establish that she possessed personal knowledge of the facts. In an order entered January 27, 2016, the Civil Court granted plaintiff ’s motion, and denied defendant’s cross motion on the ground that defendant was precluded from interposing its defense because defendant had failed to timely deny plaintiff ’s claims.

As defendant argues, 11 NYCRR 653.8 (g) (1) (ii); (2) provides that, effective April 1, 2013, “no payment shall be due for claimed medical services under any circumstances . . . for those claimed medical service fees that exceed the charges permissible pursuant to Insurance Law sections 5108 (a) and (b) and the regulations promulgated thereunder for services rendered by medical providers.” Thus, defendant was not required to establish that it had timely denied the claims in order to preserve its fee schedule defense, as the services at issue had been provided between May 7, 2014 and July 16, 2014 (see 11 NYCRR 65-3.8 [g] [1] [ii]; [2]).

Accordingly, the judgment is reversed, the order entered January 27, 2016 is vacated, plaintiff ’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

2018 NY Slip Op 50095(U) Decided on January 19, 2018 Appellate Term, Second Department

INSURANCE ADVOCATE / February 11, 2018 21

GUEST OPINION CONTINUED ON PAGE 14

proper mental health treatment— or failure to charge them when indicated with criminal violations (the latter allowed Cruz to pass a background check); • Dereliction of duty by law enforcement officials—local, state, and federal, including the FBI—in failing to act on reputable tips and their own encounters with seriously troubled individuals.

“Gun control” is the wrong prescription for such societal problems. It will not prevent criminals or disturbed persons from obtaining lethal weapons.

“Gun free zones” have already been proven to fail.

If physicians practiced medicine with such “shotgun” (pun intended) approaches to medical problems, medicine would indeed be as guilty of doing harm and causing death as we see in these shooting events. Physicians could be sued or lose their license to practice.

We physicians also have a legal duty

to report individuals whom we assess as potentially dangerous to themselves (suicidal) or others (homicidal). A physician who failed to report someone like Cruz, who then committed a mass shooting, would be subjected to severe, even criminal, penalties.

Why have law enforcement officials in Broward County, Tucson/Pima County, Blacksburg, Orlando, San Bernadino, Central Michigan, and the FBI NOT been held accountable for their dereliction of duty in their failure to act on many tips and actual encounters that should have been a clear warning of imminent danger?

Had any one of these law enforcement entities done their job, as mandated in states across the country, many lives could have been saved. Why are we ignoring this aspect of every one of these mass shootings?

Why do we keep harping on the wrong “diagnosis” of the inanimate GUN, and push for “gun control” rather than proper treatment of the person who pulls the trigger?

Why do we fail to provide the same

armed security for our vulnerable schools that is provided in most hospital emergency rooms, or government buildings?

The Democrats one-size-fits-all solution—more government control with more restrictions of citizens’ rights—is the same for every diagnosis, whether the problem is with banking, medical care, or violent behavior. Yet the “disease” originates in government interference, over-regulation, incompetence, or corruption. Government control is the problem, not the solution.

Americans need to wake up and see that liberal progressive government elites are seeking power, not solutions to problems. For all their phony tears,liberal activists see suffering of the victims as an opportunity to advance their agenda for more control of our lives.

If they genuinely cared about treating the underlying “disease” –i.e. solving the real problem—they’d be calling for investigations and sanctions of negligent, incompetent law enforcement and public officials, rather than infringement of the Second Amendment rights of responsible, law-abiding citizens. [IA]

If they genuinely cared about treating the underlying “disease”…they’d be calling for investigations and sanctions of negligent, incompetent law enforcement and public officials, rather than infringement of the Second Amendment rights of responsible, law-abiding citizens.

22 March 26, 2018 / INSURANCE ADVOCATE

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