Insurance Advocate April 27, 2019 by C Acunto

Vol. 130 No. 8 | April 29, 2019

STUDY:

of DRIVERS Who Use

MARIJUANA

in Legal States Drive

UNDER THE INFLUENCE

Your New York DBL/PFL Partner

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Vol. 130 No. 8 | April 29, 2019

Contents

12 STUDY: 60% of Drivers Who Use Marijuana Drive Under the Influence 4 Foreword: No Demographic Study, Thank You Steve Acunto, Publisher 6 HR Update: How to Comply With the New Sexual Harassment Laws Alfred T. DeMaria 8

Letter to the Editor

10 Guest Article: Understanding the Difference Between Extended and Manufacturer Warranties Tom Scott 18 Social Trends: Deloitte Study: Only 19 Percent of Business Leaders Say They are Ready to Lead the Social Enterprise – Despite Increased Importance 22

In the Associations: IBANY Elects Foa President

24 On My Radar: Insurance Policies Must Be Read as They are Written Barry Zalma 26

Looking Back: March 26, 1994

28 Courtside: Plaintiff ’s 20-Year Delay in Enforcing Judgment Does Not Toll Interest

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

No-Fault Insurer Need Not Justify Its Demand for EUO Lawrence N. Rogak

Guest Opinion: Hoaxes, Scams, and Your Medical Care Marilyn M. Singleton, M.D., J.D.

Correction: Our April 13th issue indicated the wrong byline for MSO’s article “Annuity Basics” in the contents listing. The correct author for this article is Sue. C. Quimby of MSO. INSURANCE ADVOCATE / April 29, 2019 3

[ FOREWORD ]

STEVE ACUNTO, EDITOR & PUBLISHER

No Demographic Study, Thank You

f my guess is correct, most of our readers are late middleaged or a bit younger, predominantly descendants of white European men and women, reasonably affluent, owners of agencies, other insurance-related enterprises, insurance attorneys or holders of important jobs in the field. In short, a great readership: at nearly 130 years of continuous publishing, the last 33 under our aegis, the Advocate (IA) has had a pretty consistent run and a pretty consistent response from readers who are so loyal that we usually get cancellation notices only for retirements...or death. In fact, there are even a few readers who are snow birds who actually call to get their subs sent to Florida for the cold months. The IA enjoys a nice place in the mind set of many professionals. And that is why, among other reasons, that I will never subject you to a demographics study or some marketing survey on behalf of this mini institution of which I often feel more like a curator Today, unfortunately, most elected than an editor. When you think about it, officials adopt assumed mandates—i.e. such exercises make not one jot of differinstead of fixing systems and improving ence anyway, especially since the magazine will publish its news, opinions and slightly general conditions, the new generation of campaign edged articles regardless of curlegislators and self-anointed disruptors rent tastes or fads. Or marketing interests. course, that does not give me license assume that they are elected as sort of to Of use this space randomly or to fall into a social protest, as social engineers in a “mission drift” of self-indulgence. I am residence, as civil rights balancers, sure that no one would be particularly interested were I to use this space to as players and referees at the same time, discuss my views of the most recent as “gotcha” pundits, or as change agents opera at the Met, the Yankees’ line up seeking any change suggested by any this year, the way a child should behave, sociological issues affecting immigration, voting bloc, however small. or the fashionable, recreational use of marijuana…unless any one of these topics touched upon insuring. Why not spout off? After all, I do own the magazine? The answer is simple. My views have nothing to do with the reason why you buy this publication. Nor does your ethnicity or income level or sexual appetite matter in the mission or the delivery of what is in these pages. I am coming to a point here: that is, I wish fervently that the very same logic would be employed by elected officials who are voted into office to run the subways, provide

4 April 29, 2019 / INSURANCE ADVOCATE

safety, ensure reliable energy conduits, see to good roads and fair and open governance. Oh, and modest taxation. Today, unfortunately, most elected officials adopt assumed mandates—i.e. instead of fixing systems and improving general conditions, the new generation of legislators and self-anointed disruptors assume that they are elected as sort of a social protest, as social engineers in residence, as civil rights balancers, as players and referees at the same time, as “gotcha” pundits, or as change agents seeking any change suggested by any voting bloc, however small. They depend upon identity politics, demographics, incessant polls and differences per se. They swing into 5th gear way beyond the scope of their charges as legislators and drive up the road of headline conquest…while there remains a practical set of things to be managed, like the State and Federal budgets, sanitation, public safety and schools. Let me hasten to add that some editors take the same route, enabling the voices that come from their cable channels and newsrooms to become effectively campaign spaces masquerading as information resources. They assume a mandate well beyond reporting or communicating news, identified as such. It has, thus, divided everyone into a demographic stat or an audience of predictable like-minded groups readied for advertisers seeking that particular group. Again, that’s why I never market-survey our readership. We just ask for your “vote”—your sub—as a sign that what we are doing is useful, relevant, and not outside our “mandate.” We foray into social issues when they impact insurance or reflect a trend that might affect insuring. We wish that regulators would do the same toward the insurance business all the time, as a few DFS leaders have over the years—deal with the fundamentals and leave the redressing of social ills of the day to elected officials, or to religious and civic leaders. One such current issue that will wind up affecting insurers and insureds is, again, our cover story. We have mounted a campaign in these pages against legalization of marijuana. Aiding and abetting incivility and the dangers of over licensed behavior comes directly with the new trend toward legalizing forms of marijuana— i.e. allowing its use ubiquitously in the name of recreation and CONTINUED ON PAGE 8

S I N C E

1 8 8 9

VOLUME 130 NUMBER 8 APRIL 29, 2019

www.insurance-advocate.com EDITOR & PUBLISHER Steve Acunto 914-966-3180, x110 sa@cinn.com CONTRIBUTORS Jamie Deapo Alfred T. DeMaria Sari Gabay Lawrence N. Rogak Barry Zalma PRODUCTION & DESIGN ADVERTISING COORDINATOR Gina Marie Balog-Sartario 914-966-3180, x113 g@cinn.com SUBSCRIPTIONS P.O. Box 9001, Mt. Vernon, NY 10552 914-966-3180, x113 circulation@cinn.com PUBLISHED BY CINN Global Initiatives P.O. Box 9001, Mt. Vernon, NY 10552 (914) 966-3180 | info@cinn.com www.cinn.com President and CEO Steve Acunto

CINN GROUP

INSURANCE ADVOCATE® (ISSN 0020-4587) is published bi-monthly, 20 times a year, and once a month in January, July, August, and December by CINN ESR, Inc., P.O. Box 9001, Mt. Vernon, NY 10552. Periodical postage pending at Greenwich, CT 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 $135.00. TO ORDER Call 914-966-3180, email: circulation@cinn.com or 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 2019. All rights reserved. No part of this magazine may be reproduced in any form without consent. Trademark registered U.S. Patent and Trademark Office.

INSURANCE ADVOCATE / April 15, 2019 5

[ HR UPDATE ]

ALFRED T. DEMARIA

How to Comply with the New Sexual Harassment Laws uBoth New York State and New York City, in response to the #MeToo movement, have passed a series of complicated laws which have made it difficult for insurance industry executives to follow. Neighboring states have, or will soon have, similar laws. This article addresses what needs to be done to comply with BOTH New York State and New York City laws. Here is an outline that will make it easier to comply. WHO? All employees must be trained. (If an employer is located in New York City and has fifteen or more employees, there are some additional requirements in terms of what must be covered. See “WHAT” below.) WHAT? The training must meet the following minimum standards: • Include an explanation of sexual ha-

As a best practice, employers should consider meeting the additional New York City standards even if the standards do not apply to their business. rassment consistent with applicable state and local law and guidance; • Include examples of conduct that would constitute unlawful sexual harassment; • Include information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment;

4441 Sepulveda Blvd., Culver City, CA 90230-4847 www.zalma.com | zalma@zalma.com 310-390-4455 | fax: 310-391-5614 | http://zalma.com/blog

Mr. Zalma recently published on Amazon.com with links at the Zalma Books site, with the following: Non Fiction books: • “Insurance Fraud & Weapons to Defeat Insurance Fraud” In Two Volumes • “The Compact Book on Adjusting Liability Claims: A Handbook for the Liability Claims Adjuster” • “The Compact Book on Adjusting Property Claims” • “Ethics for the Insurance Professional” • “Rescission of Insurance” • “The Insurance Examination Under Oath”

• “Random Thoughts on Insurance Volumes IV and V: Digests from Barry Zalma’s Blog: ‘Zalma on Insurance’” Fiction: • “HEADS I WIN, TAILS YOU LOSE” • “Candy and Abel: Murder for Insurance Money” • “Murder And Insurance Fraud Don’t Mix” • “Murder & Old Lace”

Alfred T. DeMaria is a Senior Partner at Clifton Budd & DeMaria, LLP and is recognized as one of the preeminent management labor attorneys in the field. He has extensive experience in all areas of employment law, including advice on avoiding liability under disability, race, gender, age and related anti bias laws. Mr. DeMaria advises on compliance with all federal, state and local laws governing the employment relationship, including the defense of lawsuits brought by employees against the companies that employ them. Prior to his work at Clifton Budd & DeMaria, LLP, he served as a trial attorney with the National Labor Relations Board.

• Include information concerning employees’ rights of redress (i.e., the employer’s internal complaint process) and all available forums for adjudicating complaints (i.e., the U.S. Equal Employment Opportunity Commission, the New York State Division of Human Rights and the New York City Commission on Human Rights), including contact information; and, • Include information addressing the specific responsibilities of supervisory and managerial employees in the prevention of sexual harassment and retaliation (as well as their own conduct), and measures that such employees may take to appropriately address sexual harassment complaints. In addition, for New York City employers with fifteen or more employees, the training must include: CONTINUED ON PAGE 29

6 April 29, 2019 / INSURANCE ADVOCATE

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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

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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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LETTER TO THE EDITOR

From Martin Carus, former DFS Life Bureau Chief Dear Steve: Looking over the 3/11/19 issue, I came upon page 27 where Looking Back features the LICONY award to Bill Flynn. Brings back memories. I had just taken over the Life Bureau and Sal Curiale, the Superintendent at the time, lest we forget, called me and asked if I had a tux. I did and we both attended a dinner for Bill Flynn at the 21 Club. We were unaware that after several rounds of drinks and a speech (by video) from Ethel Kennedy, we were supposed to give short speeches. You know Sal and his careful speech preparation; well, he was in a panic. I didn’t even know Bill Flynn at the time nor the life CEOs there (sharing their Irish tunes in chorus). The guy sitting next to me was a Wharton School professor who invented variable annuities or something of the sort. The only thing I could think of to say was a semi-joke, semi-real story at the expense of Wharton (one of my best friends went there). Went over well with audience, but not the professor! I remember a woman going on about being the only woman CEO there. Things have changed. The Joke: A Wharton history teacher of longstanding constantly bragged about how his students all performed best and at the highest level and got A’s. Finally, one of the other professors told him off, noting that he gave the same final exam every year which was an essay on the importance of Mesopotamia to the development of civilization. In response the bragging professor changed his essay question to the importance of Greece as to the development of civilization. Usually, he wrote the topic on the blackboard and left. This time he did the same. The students caucused inasmuch as they had prepared their essays in advance. After brief deliberation, they all added to their essays: “Greece was important to the development of civilization but Mesopotamia was more important.” And then they handed in their pre-prepared essays!! The Wharton guy was not happy but everyone else was! Really enjoy Looking Back both to see where we have been and to reflect on the issues and people who got us here. Best, Marty 8 April 29, 2019 / INSURANCE ADVOCATE

FOREWORD CONTINUED FROM PAGE 5

lifestyle options. What is the goal of elected officials? To make the world safe for the pleasure of a few at the expense of overall safety? Our latest feature on the topic underlines the danger, in fact the caprice of allowing these new sets of uses. I am not the only one to write that it is CRAZY, socially destructive, downright danger-causing for drivers, pedestrians, professionals of all kinds, users of all kinds and ages, and on and on. The harm will be felt rapidly as claims are filed and possibly found defensible. The late Sen. Daniel Moynihan called it “dumbing down.” Arrests will drop, but so will police officers’ ability to tie in charges that used to be revealed when an illegal user was nabbed or a turnstile jumper stopped. So what is the motive for legislating approval here? A small voting bloc? A “right” denied? A flowering industry’s tax revenues? Millennial voter appeal? Proof that demographic marketing, not common sense, rules the day? Insurance regulators elsewhere are struggling to deal with this latest “advance” in civilization. It will prove costly to the industry and to the lives lost on the roads and in other places where the fog of lassitude is allowed to reign. “Dumbing down” is taking over and it will find its way into the pages and prices of policies, if legislators force regulators to serve crazy political aims and not the stability and vitality of those whom they regulate. Common sense needs a serious reintroduction.SA

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[ GUEST ARTICLE ]

TOM SCOT T

Understanding the Difference Between Extended and Manufacturer Warranties uGenerally defined, a warranty is a contract between a company and a consumer in which it’s agreed that the company will replace or repair a consumer’s purchase if it breaks within a specific time period. Structured as such, all warranties basically point toward a similar goal with advantages that vary depending on industry and coverage. From a consumer products perspective, there are two types of warranties that dominate the industry: manufacturer warranties and extended warranties. Though these warranties differ greatly, each offer substantial benefits for both consumers and retailers. Manufacturer warranty: automatically included Otherwise referred to as “limited warranties,” manufacturer warranties are automatically bundled with the purchase of a manufacturer’s product. What makes them “limited?” Manufacturer warranties are only viable for a very specific window of time following the product purchase date. Generally, this time frame ranges from 90 days to an entire year with coverage offered as a product replacement plan rather than a complete repair option. Terms and conditions are exclusively outlined by the manufacturer, including customer rights, manufacturer responsibilities, and defined scenarios when a product would qualify for replacement or repair. Extended warranty: longer periods of protection Intended to lengthen the coverage period, extended warranties are designed similarly to manufacturer warranties—with a few differences. These warranties are often known as “service contracts,” and are available from the 10 April 29, 2019 / INSURANCE ADVOCATE

From consumer peace of mind and longterm cost savings, to additional lines of retail revenue and increased customer trust, warranties are worth every penny. retailer at the point of purchase. Unlike manufacturer warranties, extended warranties are not automatically attached to products and require an additional fee to utilize their offerings. Additionally, while extended warranties protect a product for a longer period of time, they do not extend the terms and conditions put in place by the original manufacturer. Instead, they typically carry additional or updated terms to ensure the benefits of extended protection. Value for retailers Additional protection sounds great for consumers—but how do warranties benefit retailers? For starters, these warranties can create additional lines of revenue. Whether extended or manufacturer coverage, retailers can implement a repair center, receive service authorization from the warranty firm, and enjoy the extra revenue created by incoming customer repairs. Warranties can also encourage consumer spending, helping boost a retailer’s bottom line even further. With the knowledge that their investment will be protected long term, consumers tend to be more willing to make pricier purchases. Lastly, the peace of mind gained

Tom Scott is Vice President of Business Development, Consumer Products at Fortegra where he cultivates strategic relationships by offering service contract, warranty and insurance solutions to clients in the global consumer product marketplace. An honor society graduate of the University of Utah with an MBA from Westminster College, Scott is also a recent recipient of a Business Innovation & Entrepreneurship Certificate from Stanford University.

from the addition of warranty protection can help improve customer loyalty and reduce complaints, increasing the potential for repeat business. Value for consumers In addition to the peace of mind provided by the promise of protection, warranties offer consumers cost savings as well. Unexpected costs can put consumers in a tough financial situation, but warranty protection can help offset those costs. Also, extended warranty firms can connect consumers with local providers who have the ability to repair products without the need for shipments or long-distance travel. Combined, it’s the kind of coverage consumers are looking for—particularly when applied to today’s expensive technologies. Considering the above factors, it’s clear that warranties create value for consumers and retailers alike. From consumer peace of mind and long-term cost savings, to additional lines of retail revenue and increased customer trust, warranties are worth every penny.[IA]

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STUDY:

of DRIVERS Who Use

MARIJUANA

in Legal States Drive

UNDER THE INFLUENCE

Based On A Survey Of 811 Drivers Who Use Marijuana In 10 Recreational States And Washington, D.C.

12 April 29, 2019 / INSURANCE ADVOCATE

ore drivers than ever are grappling with decisions about when it is — and isn’t — OK to drive after consuming marijuana, which is now legal for adults to use recreationally in 10 states and Washington, D.C. Laws and best practices for drivers who drink alcohol have been established by decades of science, but research on the effects of marijuana on driving is far more limited. Here’s what we know: • Marijuana causes impairment. Studies show that marijuana can impair motor skills, cognitive function, and other driving abilities. If you’re impaired or are unsure if you’re impaired, experts agree you should not drive. • It’s unclear how long impairment lasts. Research is underway to establish how long drivers should wait to drive after consuming marijuana, but current recommendations range anywhere from 2 to 24 hours, depending on who you ask. Washington’s Liquor and Cannabis Board recommends at least 5 hours for inhaled marijuana (or longer if it’s an edible). Blood tests can show if someone has used marijuana, but not how impaired a driver is. Regular users can test positive for THC for days after their last use, even though impairment likely lasts just hours. • Marijuana’s contribution to car crashes and traffic fatalities is unclear. Marijuana’s role in car crashes isn’t as clear as the link between alcohol and crashes, according to IIHS, which found early evidence that crashes increased in recreational marijuana states. Marijuana’s impact on road safety is still being studied and debated. • Guidelines around marijuana use and driving are limited. Drivers who drink alcohol can look to established guidelines to know how a beer or two could affect their driving, and how long they should wait. Such guidelines haven’t been established for marijuana — and creating them could be complicated. Colorado suggests that occasional users are likely to be impaired after using 10mg of THC or more, but individual results vary.

Experts agree more study is needed, but marijuana’s federal classification as a Schedule I controlled substance adds a tricky barrier. Researchers need federal government approval to use marijuana in studies. In the meantime, it’s difficult for public safety officials to issue guidance about when it’s safe to get behind the wheel again after using marijuana in legal states, leaving drivers largely on their own to decide. CONTINUED ON PAGE 14 INSURANCE ADVOCATE / April 29, 2019 13

CONTINUED FROM PAGE 13

In order to understand how drivers are currently navigating these difficult choices, The Zebra launched the most comprehensive survey yet among drivers who use marijuana in recreational states.

KEY FINDINGS

Almost 60% of Drivers Who Use Marijuana in Legal States Admit to Driving Under the Influence Drivers are making drastically different choices when it comes to driving and marijuana consumption. Some say they never drive after using marijuana, while others thought it was perfectly fine to use marijuana while behind the wheel.

While almost 60% of drivers (59.1% of them combined) admitted to driving under the influence of marijuana, “influence” can mean different things to different drivers. How impaired a driver is — and for how long — depends on many factors, including the driver’s personal level of tolerance, how they use marijuana (by consuming edibles or inhaling it), and how much they use at a time. A closer look at drivers’ marijuana habits shows: 68% of drivers said they usually wait at least 2-4 hours before attempting to drive after using marijuana, but 26% said they typically waited less than an hour. The remaining 6% don’t think about or know their own habits. When drivers were asked about the shortest amount of time they’ve waited to drive after using marijuana in the past year, 41.5% had waited less than an hour. Survey respondents’ other marijuana habits include: Method 59% of drivers said they primarily inhale marijuana through smoking or vaping, while 18% primarily eat it by way of marijuana edibles. Another 20% said they used both methods of consumption. Frequency 50.3% said they consumed marijuana at least 2-5 times per week. Quantity The amount of marijuana that respondents said they consumed varied significantly, but the most popular dosage was ⅓-½ gram (about the size of one joint). These findings indicate that drivers have a wide spectrum of marijuana habits that could impact their driving abilities in significantly different ways. So how do drivers decide when and whether they’re sober enough to drive safely? CONTINUED ON PAGE 16 14 April 29, 2019 / INSURANCE ADVOCATE

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“It doesn’t matter how much I smoke, I drive fine.”

Most Drivers Decide if They’re OK to Drive Under the Influence of Marijuana Based on How Impaired They Feel Of the drivers who admit to driving under the influence of marijuana, most put at least some consideration into their level of impairment before taking the wheel. The most popular consideration drivers relied on was how impaired they feel. While 60% of drivers appeared willing to trust their own feelings, they notably did not endorse it as a reliable consideration for all drivers who use marijuana. This may be notable, as almost half of the drivers who admitted to driving under the influence of marijuana

16 April 29, 2019 / INSURANCE ADVOCATE

reported experiencing at least one impairment while behind the wheel. “I have a harder time following directions. I have to turn up the volume on my GPS so it reminds me when to turn so I don’t miss it.” 47% of Drivers Felt Impaired While Driving Under the Influence of Marijuana While just over half of drivers (53%) who said they drive under the influence of marijuana didn’t recall any negative impacts on their driving abilities, the rest (47%) noticed driving impairments. About 5% of drivers said they received a traffic ticket while under the influence of marijuana, though only 2.2% of surveyed drivers were cited in the past year for a DUI violation (for drugs and/or alcohol). Though many drivers noticed impairments while driving under the influence of marijuana, most re-

spondents still see it as safer than other dangerous driving behaviors. • 54% said texting and driving was more dangerous than driving under the influence of marijuana. • 60% said drinking alcohol and driving was more dangerous than driving under the influence of marijuana. • 40% said were “very likely” to plan for a ride before drinking alcohol, but only 25% said the same for marijuana.

“It would be nice if there was some sort of device (sort of like a breathalizer for booze) that could measure your THC level.”

Drivers Are Seeking Better Guidelines, But They’re Skeptical of Current Regulations Drivers seem to be aware of the limitations of current marijuana driving laws and guidelines, both when it comes to helping them decide when it’s safe to drive and when it comes to law enforcement efforts. • Only 1 in 3 drivers think their state’s marijuana driving laws are effective. • Only 1 in 3 drivers think police can accurately assess marijuana impairment. Drivers highlighted a variety of opinions and concerns about driving behavior for marijuana users — and how that behavior should be regulated. The Zebra’s report presents the findings of an anonymous online survey of 811 legal marijuana users conducted in March 2019. For more information, download the full report: https://www.thezebra.com/wt/documents/39/2019-marijuana-pdf-r3.pdf INSURANCE ADVOCATE / April 29, 2019 17

[ SOCIAL TRENDS ]

Deloitte Study

Only 19 Percent of Business Leaders Say They are Ready to Lead the Social Enterprise – Despite Increased Importance

Organizations leading the social enterprise are moving beyond mission statements to help bring meaning back to the workplace and human identity back to the worker

u NEW YORK, N.Y.— Amid rapid technological, economic and social change, it is important for organizations to move beyond mission statements and social impact programs to put humans at the center of their business strategies. In its “2019 Global Human Capital Trends” report, “Leading the social enterprise: Reinvent with a human focus,” Deloitte examines ways organizations can reinvent themselves on a broad scale, including interacting, motivating, and personalizing experiences with the workforce to help build identity and meaning for workers. Completed by nearly 10,000 respondents in 119 countries, Deloitte’s ninth annual Global Human Capital CONTINUED ON PAGE 20

CONTINUED ON PAGE 18 18 April 29, 2019 / INSURANCE ADVOCATE

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[ SOCIAL TRENDS ] CONTINUED FROM PAGE 18

Trends report is the largest longitudinal survey of its kind. In the report, respondents said the role of the social enterprise is more important now than ever and noted a positive link between leading the social enterprise and an organization’s financial performance. In fact, 73 percent of industry-leading social enterprises expect stronger business growth in 2019 than in 2018, compared to only 55 percent of those where the social enterprise is “not” a priority. However, only 19 percent of respondents reported being “industry leaders” in their organization’s maturity as a social enterprise. Today, more than 4 in 10 (44 percent) of respondents said social enterprise issues are more important to their organization than they were three years ago, and 56 percent expect them to be even more important three years from now. “There is a lot of discussion about organizational purpose and while I agree that it is important, what’s missing for many organizations is the focus on the individual and the day-to-day challenges that workers are facing,” said Erica Volini, principal, Deloitte Consulting LLP, U.S. human capital leader. “The reality is that while technology is helping organizations gain competitive advantage, if not managed appropriately, it can simultaneously mean that workers lose their identity in the workplace. We see a call to action for organizations to reinvent their approach to human capital with the worker in mind to create opportunities for continuous learning, accelerated development, and professional and personal growth.”

THE FUTURE OF THE WORKFORCE

As organizations look to effectively lead the social enterprise, they must adapt to the forces restructuring work and the implications to the workforce – both in composition and capability – while embedding a meaningful experience for workers. This focus on the workforce comes as more than 86 percent of respondents cited reinventing the way people learn as important or very important – the No. 1 trend for 2019. Leading organizations are empowering individuals’ need to continuously develop skills by investing in new tools to embed learning not only 20 April 29, 2019 / INSURANCE ADVOCATE

into the flow of work, but the flow of life. With the need to sustain 50-60 year careers as part of a 100-year life, lifelong learning has evolved from a matter of career advancement to workplace survival. However, even with this emphasis on learning, only 10 percent of respondents said their organizations are “very ready” to address this topic. Amplifying the need for continuous learning is the ongoing adoption of automation technologies as 64 percent of respondents said that automation is important or very important. Yet even with these advancements, human skills remain critical to augmenting the value of this technology. In response, organizations should consider redesigning work into a new category of “superjobs,” which combine the work and skill sets across multiple domains, opening up opportunities for mobility, advancement and the rapid adoption of new skills desperately needed today. But even as part of the workforce reorganizes into superjobs, Volini shared, lower-wage-work across service sectors continues to grow, along with non-traditional contract, freelance, and gig employment – and it is imperative that these jobs are not left behind. “There is no ‘one-size-fits-all’ when it comes to the workforce of the future. Organizations need to explore all options and create the culture and infrastructure where everyone has a place. That will be part of how organizational inclusion will be defined in the future,” said Volini.

THE FUTURE OF THE ORGANIZATION

In the age of the social enterprise, organizations are being challenged to up their game when it comes to the employee experience. This emphasis comes as only 49 percent of respondents believed that their organizations’ workers were satisfied or very satisfied with their job design and only 42 percent thought that workers were satisfied or very satisfied with day-to-day work practices. As organizations look to provide technology to support employees’ work, only 38 percent of respondents said that they were satisfied or very satisfied with the current work-related tools and technology available. Finally, only 38 percent of respondents thought that they have enough autonomy within their jobs to make good decisions, providing further evidence that significant reinvention is required. “Over the last five years, issues related to productivity, well-being, overwork and burnout have grown,” said Jeff Schwartz, principal, Deloitte Consulting LLP, U.S. future of work leader. “As a result, organizations need to shift from the traditional employee experience to a new category we call ‘human experience,’ where relationships are enduring, learning is continuous, and work has meaning centered around human identity.” Creating this human experience requires a different type of leader. Eightyone percent of survey respondents believed that “21st-century leaders” face unique challenges and requirements, making it critical for organizations to extend leadership pipelines to find and build leaders from within the organization. Developing new leaders from within can help them hone critical skills, including managing through influence, promoting transparency, and thriving in a more collaborative and connected world. Underlying this shift is the continued reinvention of the traditional hierarchical organizational model. One-third (31 percent) of survey respondents said their organizations now operate mostly in teams within a hierarchal framework and another 46 percent said that they are somewhat team-based. However, most C-suite leaders, tools, cultures and incentives are still struggling to adopt and support the team-based model. CONTINUED ON PAGE 22

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With the advent of new technology, organizations can use data and insights to complete this shift.

THE FUTURE OF HR

In this 10th year of the economic recovery, organizations are finding themselves in a job-seekers’ market as the war for talent rages on. “As organizations’ workforce needs drastically change, leaders should shift from focusing on acquiring talent to accessing capabilities. While the change may seem nuanced, taking a more expanded view of where skills can be found – whether it’s in automation, the gig economy or current employees – can pay dividends in today’s fast-paced and high-demand business environment,” said Volini. As a result, the importance of internal, enterprise-wide talent mobility has become paramount. In 2019, three-quarters (76 percent) of survey respondents believed new tools and models for careers, and internal mobility are important or very important. Beyond mobility, organizations are finding that they need to look at the technology provided by the cloud as a launchpad, not a destination. But de-

spite investing billions in HR technology, 65 percent of respondents report that this technology is inadequate or only fair at achieving its overall objectives. With new talent approaches, the way many organizations compensate and reward workers has fallen out of date. Today, only 11 percent of respondents felt that their rewards systems are highly aligned with their organizational goals and nearly one-quarter (23 percent) do not feel they know what rewards their employees value. “The combination of shifts in the work, the workforce, and the organization have created a new mandate for HR to shape the future,” said Heather Stockton, principal, Deloitte Global, global human capital leader. “But HR cannot do this alone. The entire organization, led by the symphonic C-suite, needs to come together to help organizations truly take the lead in the future of work.”[IA] Access the “2019 Deloitte Global Human Capital Trends” report at https:// bit.ly/2WfXfwo and gain further insights into the data via Deloitte’s digital-first trends research progressive web app.

[ IN THE ASSOCIATIONS ]

Insurance Brokers’ Association of NY Elects Justin Foa President

u NEW YORK, NY—Justin Foa, CPCU, President and CEO of Foa & Son International Insurance Brokers (pictured right), has been elected to serve as president of the Insurance Brokers’ Association of the State of New York. Mr. Foa was elected to the Board of Directors in 2010, appointed to the Executive Committee in 2015 and sworn in as president on April 17, 2019. Mr. Foa’s father, Conrad Foa, also served as president of IBANY from 1987 to 1989. “It is a great honor to be elected president and have the opportunity to follow in my father’s footsteps,” said Mr. Foa. “I look forward to working with the board and serving the members of this 22 April 29, 2019 / INSURANCE ADVOCATE

renowned organization. The Board remains dedicated to delivering expanded value to our member companies, enhancing our educational programming by highlighting timely, relevant topics

that impact our industry, and identifying new opportunities for professional development and networking.” IBANY membership currently includes more than 35 Broker and Associate member companies throughout the greater New York Metropolitan area, representing thousands of insurance professionals. Mr. Foa currently heads Foa & Son International Insurance Brokers as the President and CEO. Prior to leading Foa & Son, Mr. Foa worked for more than 10 years with multinational insurance brokerage firms, including Aon Risk Services, where he was Vice President in the Mergers and Acquisitions Insurance Division. Mr. Foa earned his bachelor’s degree in insurance and risk management from the Wharton School of Business at the University of Pennsylvania. He also holds the Chartered Property Casualty Underwriter (CPCU) and the Associate in Risk Management (ARM) designations from the Insurance Institute of America. In addition to his duties at Foa & Son, Mr. Foa is a member of the Young Presidents’ Organization (YPO) Metro Chapter and sits on the Chapter’s membership committee. He also serves as Board Chairman of The Tanenbaum Center for Inter-religious Understanding and is a former volunteer and President of the Columbus Citizens Foundation Young Adults Auxiliary Group. Following the installment, IBANY’s 2019 Spring Reception took place at the Tribeca Rooftop. This year, more than 400 insurance professionals gathered to celebrate the industry in an evening of networking and relationship building.[IA]

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[ ON MY RADAR ]

BARRY Z ALMA

Insurance Policies Must Be Read as They are Written “Arise out of ” or “Relate in Any Way” uPeople who write contracts with conditions requiring that one party provides insurance protection for another must be able to read and understand all of the terms, conditions and limitations of a policy of insurance. Failure to do so will usually result in litigation that is, more often than not, unsuccessful. In International Marine, L.L.C.; Et Al., Tesla Offshore, L.L.C. V. Atlantic Specialty Insurance Company; New York Marine & General Insurance Company, Tesla Offshore, L.L.C. v. Atlantic Specialty Insurance Company; One Beacon Insurance Company; New York Marine And General Insurance Company, No. 1830392, United States Court of Appeals for the Fifth Circuit (February 12, 2019) the Fifth Circuit resolved an insurance coverage dispute stemming from an allision (the running of one ship upon another ship that is stationary) during a sonar survey by Tesla Offshore, L.L.C. (“Tesla”). Tesla seeks insurance coverage for its liability from the allision under two policies taken out on a vessel it chartered. The district court granted the insurers’ motions for summary judgment and dismissed Tesla’s claims with prejudice. Tesla appealed. Previously, in International Marine, L.L.C. v. Integrity Fisheries, Inc., 860 F.3d 754 (5th Cir. 2017) the Fifth Circuit noted that Tesla was conducting an archaeological sonar survey using two chartered vessels. The first—the “tow vessel”—was the M/V International Thunder (“Thunder”) owned by International Marine, L.L.C., and International Offshore Services, L.L.C. (jointly, “International”). The second—the “chase vessel”—was the F/V Lady Joanna (“Joanna”) owned by Sea Eagle, Inc. (“Sea Eagle”).

FACTS

To perform the survey, the Thunder traveled along a grid pulling a “towfish” 24 April 29, 2019 / INSURANCE ADVOCATE

People who write contracts with conditions requiring that one party provides insurance protection for another must be able to read and understand all of the terms, conditions and limitations of a policy of insurance.

attached to a lengthy cable. The Joanna followed to track the towfish and receive sonar signals it emitted. At one point, the Thunder reeled in the towfish to make some repairs. After the towfish was redeployed, its cable allided with the mooring line of a mobile offshore drilling unit (“MODU”) used by Shell Offshore, Inc. (“Shell”). The allision severely damaged the MODU, and Shell sued Tesla and International for negligence. A jury awarded Shell over $9 million in damages and determined that Tesla was 75% at fault, International 25%. Following that verdict, Tesla and International sought indemnity from Sea Eagle, owner of the Joanna. Tesla and International also sued two of Sea Eagle’s insurers, claiming that they had been “added as additional insureds” on two policies taken out on the Joanna. The first policy, a marine comprehensive liability (“MCL”) policy, was issued by Atlantic Specialty Insurance C ompany/OneB eacon Insurance Company (“OneBeacon”). The second, a bumbershoot policy, was issued by New York Marine and General Insurance Company (“NYMAGIC”). The district court held that Tesla and International were not entitled to indemnity because the allision did not “aris[e] out of or relate[] in any way” to

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant 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 practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 51 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com. Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award. Mr. Zalma’s books are available as Kindle books or paperbacks at Amazon. com and can be reached at http:// zalma.com/zalma-books/ Mr. Zalma’s reports can be found on Tumbler at https://www.tumblr.com/search/ bzalma on Facebook at https://www. facebook.com/barry.zalma and you can follow him on Twitter at https:// twitter.com/bzalma. His blog, Zalma on Insurance is available at http://zalma.com/blog and his videoblog, Zalma’s Insurance 101 is available at http://www.zalma.com/ videoblog/

the operation of the Joanna, as the indemnity portions of the Master Service Agreement (“MSA”) between Tesla and Sea Eagle required. The court also denied Tesla’s insurance claims against Sea Eagle’s insurers, holding that those claims fell with the indemnity claim. The Fifth Circuit affirmed the denial of indemnity but vacated the denial of the insurance claims. Noting that the scope of insurance coverage should be

[ ON MY RADAR ] based on the language of the policies and not the availability of indemnity, the court vacated and remanded for further proceedings on the insurance claims. Importantly, the panel affirmed the district court’s finding that “the Joanna’s operation made no contribution to the negligent act causing the [Shell MODU’s] damages.” The court repeatedly emphasized that Tesla’s “negligence, as well as the resulting damage to [Shell’s MODU], was independent of the operation of the Joanna.”

AFTER REMAND

On remand, after presenting the relevant policy language, the insurers moved for summary judgment on whether Tesla and International were insureds on the MCL and bumbershoot policies and, if so, whether they were entitled to coverage for their negligence liability. The district court granted the insurers’ motions, denied Tesla’s, and dismissed Tesla’s and International’s claims with prejudice. Tesla—but not International—appeals.

ANALYSIS

The interpretation of a contract of marine insurance is — in the absence of a specific and controlling federal rule — to be determined by reference to appropriate state law. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. Under Louisiana law, the party seeking coverage has the burden of proving that the incident falls within the policy’s terms. The insurer has the burden of proving an exclusory clause applies. Ambiguities in a policy are construed in favor of coverage. Sea Eagle was not obligated by an “insured contract to include” Tesla as an additional insured. The parties agree that the relevant “insured contract” is the MSA. Section 11(a) of the MSA obligated Sea Eagle to acquire insurance to “protect [Tesla] from third party claims arising out of or connected with the performance of Service hereunder.” The MSA defines Under that definition, the only “Service” Sea Eagle performed was providing Tesla with the Joanna and its crew. Sea Eagle was thus obligated to

obtain insurance to cover Tesla’s liability only for third-party property damage that arose from or was connected with the provision of the Joanna and its crew. But the third-party claim for which Tesla seeks coverage did not “aris[e] out of ” nor was “connected with” that Service. Consequently, Sea Eagle was not obligated by a “written contract” to obtain insurance coverage to cover Tesla’s liability for third-party property damage based on the allision. Sea Eagle was not obligated to obtain coverage for Tesla’s liability for the allision. Tesla is not entitled to coverage because the contract required Sea Eagle to obtain insurance to protect Tesla only “from third party claims arising out of or connected with the performance of Service.” Notwithstanding the conclusion that Sea Eagle was not obligated to name Tesla as an additional insured, the liability for which Tesla seeks coverage did not arise out of Sea Eagle’s “work.” Thus, it is not covered by the MCL policy. Tesla’s negligence liability is not covered by the MCL policy because its liability did not arise out of Sea Eagle’s work. The NYMAGIC bumbershoot policy provides no coverage for Tesla. Although Tesla is not listed as a Named Assured or Additional Assured, the policy’s blanket “assured” provision covers any organization to whom the Named Assured is obligated by virtue of a written contract or agreement to provide insurance such as is afforded by this policy, but only in respect of operations by or on behalf of the Named Assured. There are thus two criteria for Tesla to qualify as an additional assured under

the bumbershoot policy. First, Integrity (Sea Eagle’s sister company that obtained the bumbershoot policy) must have been obligated by the MSA (the “written contract”) to provide Tesla with the type of coverage the bumbershoot policy affords. Second, if that obligation existed, Tesla is covered only in respect of operations by or on behalf of the Named Assured [Integrity]. To reiterate, the MSA obligated Sea Eagle to obtain insurance protecting Tesla from third-party claims stemming from the “Service” Integrity provided — the use and operation of the Joanna. The claim for which Tesla seeks coverage did not stem from that “Service.” Even if the MSA obligated Integrity to cover that claim, the second criterion for Tesla to qualify as an additional assured is not satisfied. Tesla maintains — without citing any controlling precedent — that whether the relevant operation was by or on behalf of Integrity depends on whether there was a causal connection or relation between the entire operation in which the Lady Joanna was essential and the underlying incident. The correct understanding of “by or on behalf of,” Tesla claimed, is that “Tesla would have been unable to perform the survey work and towage ongoing at the time of the incident” without the use of the Joanna as “the ‘eyes’ of the tow.” That language of the policy covers only incidents that arose “in respect of operations by or on behalf ” of Integrity. The entire operation was not on behalf of Sea Eagle; to the contrary, Integrity (via its sister company) was working on behalf of Tesla. Tesla is not entitled to coverage under the OneBeacon MCL policy or the NYMAGIC bumbershoot policy. The judgment was, therefore, affirmed.

ZALMA OPINION

Had the insurance contracts and the Master Service Agreement been read and understood along with the insurance policies these lawsuits would never have been filed because the proper insurance would have been obtained to pay for any liability due to the allision. The key to this case is that contracting parties dealing with insurance should use insurance professionals and not steal language from someone else’s standard contract language.[IA] INSURANCE ADVOCATE / April 29, 2019 25

[ LOOKING BACK ]

INSURANCE ADVO CATE - 26 YEARS AGO

26 April 29, 2019 / INSURANCE ADVOCATE

INSURANCE ADVO CATE - 26 YEARS AGO

[ LOOKING BACK ]

INSURANCE ADVOCATE / April 29, 2019 27

[ COURTSIDE ]

LAWRENCE N. RO GAK

Plaintiff’s 20-Year Delay in Enforcing Judgment Does Not Toll Interest Berenblit v Aetna Cas. & Sur. Co. Edited by Lawrence N. Rogak In this no-fault suit, plaintiff obtained a judgment on default in 1998. But it was not until 2017 that plaintiff sent the judgment to the marshal for enforcement. When defendant was served by the marshal, it moved to vacate the judgment. Civil Court did not vacate the judgment but it tolled the interest from 1998 to 2017. The Appellate Term modified the order by holding that defendant owed interest from 1998 but at the post-judgment rate of 9% annually, rather than the 2% compounded monthly rate that was in effect prior to 2002.—LNR uIn this action by a provider, commenced on June 14, 1996, to recover first-party no-fault benefits for services it had rendered to its assignor in 1995, plaintiff moved for summary judgment, which motion defendant failed to oppose. By order entered March 13, 1998, the Civil Court granted plaintiff ’s motion, on default, and awarded plaintiff “the sum of $2,306.24 plus interest from December 11, 1995. The branch of the motion for attorney’s fees is granted to the extent that plaintiff is awarded $250.00 or they may proceed to inquest.” On July 28, 1998, a judgment in the sum of $5,442.42 was entered in plaintiff ’s favor. By order to show cause returnable in March 2017, defendant moved for a stay of execution and/or enforcement of the July 1998 judgment, vacatur or modification of that judgment, dismissal of any statutory interest due to plaintiff ’s delay and the doctrine of laches, and a tolling of post-judgment interest due to plaintiff ’s delay. In opposition to the motion, plaintiff asserted that it had served defendant’s attorney with a copy of the July 1998 judgment, with notice 28 April 29, 2019 / INSURANCE ADVOCATE

...CPLR 5003 provides that “[e] very money judgment shall bear interest from the date of its entry” and, generally, interest accrues until the judgment is paid. “Postjudgment interest is awarded as a penalty for the delayed payment of a judgment.”

of entry, on June 16, 2005. Defendant, however, argued that it had received no such notice, and that it had not learned of the judgment until it had received a marshal’s notice in February 2017. By order entered August 9, 2017, the Civil Court granted defendant’s motion to the extent of tolling “pre-judgment” interest from “July 28, 1998 through June 16, 2005 to date” and directing that postjudgment interest be calculated at a rate of 9% per annum; sua sponte, changed the accrual date of prejudgment interest from December 11, 1995 to June 14, 1996; and directed that prejudgment interest be calculated as simple, not compound interest. With respect to post-judgment interest, CPLR 5003 provides that “[e] very money judgment shall bear interest from the date of its entry” and, generally, interest accrues until the judgment is paid. “Post-judgment interest is awarded as a penalty for the delayed payment of a judgment.” Since plaintiff, as the prevailing party, was not required to make a demand for the payment of the judgment, and did not cause the delay in defendant’s payment of the monies owed, the Civil Court erred in tolling the accrual of interest on the judgment

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.

from July 28, 1998 until June 16, 2005. However, the Civil Court properly determined that, pursuant to CPLR 5004, post-judgment interest should be calculated at a rate of 9% per annum. With respect to prejudgment interest, we note that the regulation in effect in 1995 through 1998 provided for interest at the rate of “2% per month compounded” (see former Insurance Department Regulations [11 NYCRR] § 65.15 [h] [1]). The parties’ remaining contentions are unpreserved for appellate review or have no merit. Accordingly, the judgment entered August 16, 2017 is reversed, plaintiff is awarded statutory post-judgment interest from July 28, 1998 at a rate of 9% per annum, and the matter is remitted to the Civil Court for a calculation of interest in accordance with this decision and order, and for the entry of an appropriate judgment thereafter.[IA] 2019 NY Slip Op 50505(U) Decided on March 29, 2019 Appellate Term, Second Department

[ COURTSIDE ]

No-Fault Insurer Need Not Justify its Demand for EUO Bronx Chiropractic Care, P.C. v State Farm Ins. Edited by Lawrence N. Rogak In this no-fault suit, the Appellate Term holds that a no-fault insurer is under no obligation to give an explanation as to why it wants an EUO, nor to disclose its internal guidelines that govern its no-fault claims handling procedures. Therefore the Complaint was dismissed on the grounds that the medical provider failed to appear for an EUO.—LNR u Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered December 16, 2016. The order granted defendant’s motion for summary judgment dismissing the complaint. Affirmed. 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 appear for duly scheduled examinations under oath (EUOs). By order entered December 16, 2016, the Civil Court granted defendant’s motion. Plaintiff ’s sole argument on appeal is that defendant’s motion should have been denied because plaintiff objected to defendant’s EUO demands and defendant failed to establish that the demands were reasonable. Defendant was not required to provide the reason for its demand for an EUO in response to an objection from plaintiff. “No ‘provision of No-Fault Regulations 68 requires an insurer’s notice of scheduling an EUO to specify the reason(s) why the insurer is requiring the EUOs’ “ (Flow Chiropractic, P.C. v Travelers Home & Mar. Ins. Co.,44 Misc 3d 132[A], 2014 NY Slip Op 51142[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2014], quoting Ops

Since defendant was not required to provide—either in its scheduling letters or in response to an objection from plaintiff—the reason for its demand or the objective standards upon which its EUO demands were based, and since that is the only ground for plaintiff’s appeal, there is no basis to disturb the order appealed from.

Gen Counsel NY Ins Dept No. 06-12-16 [December 2006]). Similarly, “there is no requirement in the regulation that a No-Fault insurer must provide a copy of their internal guidelines [regarding objective justification] for requiring an EUO upon the request of a claimant for benefits” (Ops Gen Counsel NY Ins Dept No. 02-10-14 [October 2002]). The Department of Financial Services’ interpretation of the No-Fault Regulations is entitled to deference unless that interpretation is irrational or unreasonable which is not the case here. Since defendant was not required to provide—either in its scheduling letters or in response to an objection from plaintiff—the reason for its demand or the objective standards upon which its EUO demands were based, and since that is the only ground for plaintiff ’s appeal, there is no basis to disturb the order appealed from.[IA] 2019 NY Slip Op 50423(U) Decided on March 22, 2019 Appellate Term, Second Department

HR UPDATE CONTINUED FROM PAGE 6

• An explanation of sexual harassment as a form of unlawful discrimination under local law; • A statement that sexual harassment is also a form of unlawful discrimination under state and federal law; • The prohibition of retaliation including examples; and, • Information concerning bystander intervention, including but not limited to, any resources that explain how to engage in bystander intervention. • As a best practice, employers should consider meeting the additional New York City standards even if the standards do not apply to their business. WHEN? The state training must be conducted by October 9, 2019. The city training must be conducted by March 31, 2020. All training must be given annually. For employers who are required to comply with both laws, the sweet spot for conducting training will be April 1, 2019 to October 9, 2019 and then annually thereafter. HOW? The training must be interactive; however, this doesn’t mean that the training needs to be provided by a live trainer. Examples of employee participation that qualify as “interactive” include: • If the training is web-based, it has questions at the end of a section and the employee must select the right answer, or the employees have an option to submit a question online and receive an answer immediately or in a timely manner. • If the training is in person and/or given by a live trainer, the presenter asks the employees questions or gives them time throughout the presentation to ask questions. • If the training is in person or webbased, there is a Feedback Survey for employees to turn in after they have completed the training. While the above requirements may be onerous, such training may help prevent the even more difficult involvement and expense of defending a lawsuit.[IA] INSURANCE ADVOCATE / April 29, 2019 29

[ GUEST OPINION ]

MARILYN M. SINGLETON, M.D., J.D.

Hoaxes, Scams, and Your Medical Care uHoaxes and scams have been dominating the news lately. We have a marginally known actor faking a hate crime supposedly to raise his Hollywood profile. His attempt to claw his way to the middle could have resulted in race riots, injury, and death. His punishment? All charges dropped. The scandal about Hollywood and other elites buying their children’s way into top-rated universities really hit home. I remember when I had tutored some recent Vietnamese immigrants for a debate contest to win a scholarship for college. I could only hope that their hard work was rewarded and not wiped away by special favors bestowed on the “haves.” Now we continue to have a slew of healthcare hoaxes: corporate stakeholders, legislators, and government agencies promise everything and have no accountability for their failure to keep their promises. Take the large health systems’ claim that hospital consolidation and buying up physician practices would benefit consumers with cheaper prices from coordinated services and other unspecified savings. A major study of California hospital mergers found just the opposite. The analysis showed that the price of an average hospital admission went up as much as 54 percent. When the large hospital systems bought doctors’ groups, the prices rose even more. There was as much as a 70 percent increase in prices of medical services in geographic areas with minimal competition. This finding seems obvious to any of us who has the choice of shopping at Walmart or Target or Costco. Logic aside, some legislators believe that having the government take over medical care would solve our access and cost problems. Single payer means no competition whatsoever. The single payer plans (H.R. 1384 and S. 1804) that abolish private insurance leave patients with an empty choice. Patients can contract with a physician to pay cash for government medical services covered 30 April 29, 2019 / INSURANCE ADVOCATE

...CORPORATE STAKEHOLDERS, LEGISLATORS, AND GOVERNMENT AGENCIES PROMISE EVERYTHING AND HAVE NO ACCOUNTABILITY FOR THEIR FAILURE TO KEEP THEIR PROMISES.

by the government. But if the physician contracts for such services he cannot be part of the government program for any patient for 2 years. Realistically, these single payer bills make it financially unfeasible for physicians to privately contract with patients. Thus, only well-heeled patients, along with independently wealthy doctors, can buy their way out of the system. There are variations on the theme of government involvement that allow buy-ins to Medicare, Medicaid, or iterations of the Affordable Care Act marketplaces. All of these all have the same defect: expanding the government healthcare monopoly. The opioid crisis is an example of the unintended consequences of intervention by oversight agencies not directly involved in patient care. The Joint Commission on Accreditation of Healthcare Organizations (JCAHO), now the Joint Commission, a nonprofit organization that accredits more than 20,000 healthcare organizations and programs in the U.S, is for all practical purposes a government surrogate. In 2001, JCAHO declared that pain was the “5th vital sign” that had to be addressed or face consequences. The Federation of American Medical Boards told physicians that “in the course of treatment,” large doses of opioids were just fine. Moreover, Medicare has a hospital payment formula that relies on patient satisfaction surveys. If the patients are satisfied, including being so zoned out on opiates that they can’t taste the bad food, the hospital is paid more. The hospital is penalized for a bad rating. And now to deal with the opiate issue, the government has issued guide-

Dr. Singleton is a board-certified anesthesiologist. She is also a Boardof-Directors member and Presidentelect of the Association of American Physicians and Surgeons (AAPS). She graduated from Stanford and earned her MD at UCSF Medical School. Dr. Singleton completed 2 years of Surgery residency at UCSF, then her Anesthesia residency at Harvard’s Beth Israel Hospital. While still working in the operating room, she attended UC Berkeley Law School, focusing on constitutional law and administrative law. She interned at the National Health Law Project and practiced insurance and health law. She teaches classes in the recognition of elder abuse and constitutional law for non-lawyers.

lines that have been found to be harmful to some patients. One-size-fits-all restrictions have caused physicians to fear being flagged as over-prescribers by the medical board. Consequently, some physicians are tapering patients off opioids more quickly than they would ideally like. And in the public eye patients have been transformed from objects of compassion to criminal drug addicts. Individualized medical care must not be reserved for the chosen few. Patients need physicians who are empathetic, thorough, and not married to a medical cookbook written by disinterested third parties. Perhaps this is why Mick Jagger of the Rolling Stones chose to have his heart surgery in the U.S. and not with his British homeland’s National Health Service. Central control is not a good idea. Period. Do not believe the hoax perpetrated by the ruling class who will never have to live by their own rules. It is highly unlikely that Venezuela’s President Maduro is starving along with his people.[IA]

Years

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