EXECUTIVE LIFE OF NEW YORK TO KILL BENEFITS PROMISED TO INJURY VICTIMS

Transcription

1 EXECUTIVE LIFE OF NEW YORK TO KILL BENEFITS PROMISED TO INJURY VICTIMS Close to fifteen hundred annuity beneficiaries 1 of the Executive Life Insurance Company of New York ( ELNY ) stand to lose more than $900 million dollars in benefits they were promised when they settled their personal injury or wrongful death claim using a structured settlement. 2 If the Superintendent of Financial Services for the State of New York, Benjamin Lawsky, has his way benefit reductions will begin this summer. 3 Ironically, those with the largest settlements get hurt the most, again. These annuitants may be just numbers to the Superintendent, but they are real people, whose lives may depend on the funds they were promised when they settled their injury claims. These are some of their stories: A woman seriously injured in a car accident as a child by a drunk driver, who is just 40 but has already had a hip replacement. She walks with a limp and endures daily pain and will one day likely be confined to a wheelchair. A mom with three children, she was never able to carry. Her benefits are being cut by 47%. A man, accidentally shot in his early 20 s is a paraplegic, confined to a wheelchair for the last 27 years. He missed playing catch with his son, walking his daughter down the aisle, and dancing with his wife who has cared for him all these years. His benefits are being cut by 52%, which will likely result in his need for public assistance. A woman, whose husband, a merchant marine was killed in 1983 when his ship sank off the coast of Virginia. Her life was forever changed by the accident and the two years it look for the shipping company to reach a settlement with her. She became a grief counselor to help others who were hurting. Her benefits are being cut by 50%. A man who, at the age of 21, was injured in a welding accident, seriously burned over 90% of his body. He spent 6 months in a burn unit, and has had many reconstructive surgeries. He remains blind in one eye, with severe pain in the other. His benefits are being cut 42%. 1 See Schedule 1.15 of the Superintendent s Restructuring Plan, available in PDF form at A total of 1462 annuitants are having payments cut, with approximately 1300 seeing cuts of more that 10%. Over 350 annuitants are having their benefits cut by 50% or more. 2 A structured settlement is an agreement to take payments over time rather than in a lump sum. Many personal injury and wrongful death lawsuits are settled using a structured settlement. The plaintiff receives payments over time, from an annuity, tax free. Favorable tax treatment is awarded to property and casualty insurers who use structured settlements to settle claims due to a 1982 amendment to the tax code that caused explosive growth of the structured settlement industry in the 1980 s. 3 The proposed Order of Liquidation and restructuring plan (the Restructuring Plan ) were submitted to the New York Supreme Court, Nassau County on March 15,

2 A woman whose husband, serving in the United States Navy, was killed at the age of 26 in an accident on board the USS Bainbridge in the early 1980 s while trying to save other sailors He left behind his wife and two small children. Her payments are being cut by 39%. Brothers, who will see reductions of 52% and 16%. They were just 3 years old and 10 years old when their lives were ripped apart by the car accident that killed their mother and injured one of them. A woman whose husband was killed in an accident, leaving her to raise three small children on her own. Her husband was a gas well inspector and had just been promoted and was days away from being off the road when his car was hit by a truck. She lost her college sweetheart. Her three children, all under the age of ten, grew up without their father. Her benefits are being cut by 59%. These are just some of the people who are being hurt by the proposed Restructuring Plan. The annuity contracts these victims received promising payment of the damages they were awarded contained language saying that their payments were guaranteed for a certain number of years and for life thereafter meaning that the plaintiff will receive payments as long as they are living. Little did the ELNY annuitants know - this language meant nothing. HISTORY OF ELNY In 1991, the Superintendent of Insurance of the State of New York took control of the Executive Life Insurance Company of New York ( ELNY ). This was done because the adverse publicity surrounding ENLY s California affiliate had stimulated a hazardous number of surrenders of ELNY annuity contracts 4. In October, 1991 the Superintendent assured ELNY policyholders that ELNY continues to meet 100% of current provider obligations. your money is being well protected and conservatively invested by the Rehabilitator. 5 By the end of 1992, the rehabilitation plan had been finalized and was formally approved. 6 ELNY s good assets were sold to MetLife and what remained in the ELNY portfolio were certain close-out pension obligations, single premium immediate annuities ( SPIA s ) and structured settlement annuities. These would all stay with ELNY in Rehabilitation and would be serviced by MetLife, with investment responsibilities turned over to First Boston Asset Management Corporation, now known as Credit Suisse Asset Management. 4 See May 17, 1991 letter from Executive Life in Rehabilitation addressed To Policyholders, Annuitants and Contract Holders of ELNY. 5 See October 9, 1991 letter from ELNY in Rehabilitation addressed to Policyholders, Annuitants and Contract Holders of ELNY. 6 See Order approving Plan of Rehabilitation, dated December 16, 1992 found at 2

3 Over the next two decades, the NYLB supervised the rehabilitation of a solvent, highly rated and well regarded life insurance company. By outward appearances, ELNY was doing just fine. In fact, payments were made in a timely fashion for over twenty years. However, little did the ELNY victims know, but during those twenty years of rehabilitation its assets were being depleted. After stripping away profitable businesses and charging the cost of surrenders back to ELNY, millions of dollars were paid to MetLife in servicing fees primarily for doing two things: sending out checks and making sure payees were still alive. Not only were the fees excessive, but for at least a decade MetLife did not maintain credible mortality data. Meanwhile, Credit Suisse took close to two million a year in investment management fees for implementing a questionable investment strategy for a closed block of fixed and determined liabilities. At various times over the past two decades, more than 30% of ELNY s assets were invested in common stocks and may have been held in street name. 7 In some cases, senior tranches of high yield performing bonds were cashed in and exchanged for Z bonds the lowest rated tranches available in the market. During unprecedented periods of market expansion ELNY s assets languished. Notwithstanding the declining assets, in December, 2007, Eliot Spitzer, Governor of New York and the Superintendent of Insurance, Eric Dinallo, issued a press release announcing an agreement in principle that [would] protect nearly 11,000 accident victims and other individuals receiving annual payments from structured settlements and pensions. 8 Mark Peters, the Special Deputy Superintendent in charge of the New York Liquidation Bureau ( NYLB ) went on to say that The Bureau worked intensively to craft a solution that will result in a significant cash infusion, thus protecting ELNY beneficiaries. The proposed plan is designed to continue paying all annuitants 100% of their benefits. 9 What happened to that 2007 restructuring plan and how it fell apart is unknown to those outside the NYLB. ELNY BREAKS THE NEWS THAT 15% WILL NOT RECEIVE THEIR PAYMENTS In December of last year, just before the holiday season, ELNY annuitants received letters from the NYLB telling them that the Superintendent of Financial Services was seeking court approval to liquidate ELNY. Almost fifteen hundred of these people were allegedly mailed letters telling them that it was anticipated that the amount of your benefit payments [would] ultimately be reduced. For the first time, unsuspecting ELNY 7 See financial statements of ELNY in Rehabilitation, 2006, 2007, 2008, 2009, 2010, found at aspx. 8 See Press Release from Office of the Governor, found at 9 Ibid. 3

4 victims were told to brace themselves for reductions in their payments - some by as much as 60%. The package sent to the annuitants was mailed from a service facility in Minnesota and could easily have been mistaken for junk mail. The letter contained draconian waiver provisions and limited the time for unsuspecting victims to file objections or forever remain silent. The letter required objections to be submitted by January 16, 2012, which was Martin Luther King Day. The people whose benefits were being cut frantically tried to make sense of the letter they had received. Some searched unsuccessfully for lawyers to represent them. Others may have simply decided they couldn t fight City Hall. THE RESTRUCTURING PLAN Using ELNY assets, Guaranty Association funds and small voluntary contributions from the life insurance industry, the Restructuring Plan presented by the Superintendent of Financial Services provides for payment in full to 85% of the ELNY annuitants. Unfortunately for the other 15%, their benefits are being cut dramatically, with 350 victims losing more than 50% of their promised benefits. The plan calls for the transfer of substantially all of the ELNY assets into a yet to be created company the Superintendent is calling GABC, a captive insurance company domiciled in the District of Columbia. 10 As GABC is newly formed, it has no current operations, no investment advisors or strategy and it is located outside the state of New York. Some refer to captive insurance companies as the black holes of the insurance industry. 11 According to the Plan, any assets that remain after the cuts and the remaining scheduled payments will go back to ELNY. These excess funds, if any, may not flow back for more than 50 years and they will be used to offset even more ELNY expenses before being allocated to shortfall payees. Most shortfall payees would likely prefer to take their cash now or be given an opt-out option. These options are not available under the Plan and the Superintendent has refused to allow representatives of the shortfall payees to propose an alternative plan by denying access to the scheduled payment information that is needed to formulate a credible plan. Motions to compel the production of this information were repeatedly denied by Judge Galasso during the hearing on the Superintendents Order to Show Cause. If GABC fails, ELNY s assets will be outside of the State of New York and a bankruptcy proceeding would likely take place under the laws of the District of Columbia, further penalizing the shortfall payees. Life contingent payees are clearly being discriminated against by the Plan and GABC stands to benefit from their early demise. Benefit cuts are premised upon the net present value of all payees future payments. For life only payees, 12 their benefit cuts 10 See Shining a Light on a Shadow Industry: Captive Reinsurers by Warren S. Hersch, National Underwriter, November 21, Ibid. 12 Typically, payments under a structured settlement annuity are guaranteed for a certain number of years and are then life contingent meaning that they are payable only 4

5 are based on mortality assumptions. These assumptions create a percentage reduction that gets applied to all future payments so an individual expecting $10,000 per month gets $5,000 until he or she dies. The Plan does not contain any provision for compensating the estate of a shortfall payee who dies prior to receiving the net present value of the scheduled payments. This is likely to result in estate claims and costly litigation for years to come. WHAT HAPPENS NOW? A hearing before Judge Michael Galasso of the Supreme Court of New York, Nassau County was scheduled for March 15, While attorneys representing the Superintendent of Financial Services anticipated that the hearing would last for just a few hours, it went on for eleven days. The ELNY victims, whose payments are scheduled to be reduced in just a few short months, are waiting to learn when their lives will be turned upside down once again. And the Superintendent, through the NYLB, seems willing to turn a blind eye to the policy holders it serves and allow decades of waste and mismanagement to be swept under the proverbial rug. WHAT DOES THIS MEAN TO THE INSURANCE INDUSTRY? While the structured settlement business is sure to suffer from the fallout and bad publicity associated with the ELNY collapse, life insurance companies seem to be missing the bigger picture. All insurance products especially life insurance and annuity contracts are sold based on notions of stability and protection in time of need. It s really no more than a high stakes confidence game. Give us your money now and we will be there to help you or your family when you need it most except in ELNY s case where we instead choose to ignore the fact that $920,000,000 in guaranteed benefits are not really guaranteed. ELNY victims will continue to suffer and the news of their suffering will spread. Rating agencies will downgrade life insurers, attorneys and judges will shy away from structured settlements, retirees will stop buying annuities. The ultimate cost to the life insurance industry for letting ELNY collapse will be in the trillions. With a little effort, creativity and transparency, all of this could be avoided. If there was ever a time to avoid throwing the baby out with the bathwater it is now! as long as the annuitant is alive. A life only payee is someone who is no longer receiving guaranteed payments. 5