1 No-Fault Auto Insurance THE TOPIC SEPTEMBER 2007 The term "no-fault" auto insurance is often used loosely to denote any auto insurance program that allows policyholders to recover financial losses from their own insurance company, regardless of fault. But, in its strictest form, no-fault applies only to state laws that both provide for the payment of no-fault firstparty benefits and restrict the right to sue, the so called limited tort option. The first party (policyholder) benefit coverage is known as personal injury protection (PIP). Under current no-fault laws, motorists may sue for severe injuries and for pain and suffering only if the case meets certain conditions. These conditions, known as a threshold, relate to the severity of injury. They may be expressed in verbal terms (a descriptive or verbal threshold) or in dollar amounts of medical bills, a monetary threshold. Some laws also include minimum requirements for the days of disability incurred as a result of the accident. Because high threshold no-fault systems restrict litigation, they tend to reduce costs and delays in paying claims. Verbal thresholds eliminate the incentive to inflate claims that may exist when there is a dollar "target" for medical expenses. However, in some states the verbal threshold has been eroded over time by broad judicial interpretation of the verbal threshold language, and PIP coverage has become the target of abuse and fraud by dishonest doctors and clinics that bill for unnecessary and expensive medical procedures, pushing up costs. Currently 12 states and Puerto Rico have no-fault auto insurance laws. Florida, Michigan, New Jersey, New York and Pennsylvania have verbal thresholds. The other seven states Hawaii, Kansas, Kentucky, Massachusetts, Minnesota, North Dakota and Utah use a monetary threshold. Three states have a "choice" no-fault law. In New Jersey, Pennsylvania and Kentucky, motorists may reject the lawsuit threshold and retain the right to sue for any auto-related injury. Colorado s law reverted back to the tort liability system in July 2003.
2 and, for those who choose no-fault, a choice of personal injury protection levels. In addition, it suggests the creation of a fraud bureau within the office of the attorney general. Michigan is the only no-fault state without a fraud bureau and one of seven states without one nationwide. The other study, Auto Insurance Reform Options, one of a series of public policy papers commissioned by the National Association of Mutual Insurers, reviews the weaknesses of auto insurance laws, both tort and no-fault systems. Among the no-fault system reforms proposed to lower costs are the elimination of compensation for pain and suffering (the pure option, under which lawsuits that met the threshold definition could only be filed for economic losses), the replacement of weak thresholds with strong verbal thresholds, and a pain and suffering schedule which would set out dollar amounts for death and various types of injuries. The study s author, Peter Kinzler, also recommends giving consumers a choice between their current no-fault threshold and one that only allows recovery of uncompensated economic losses. In addition, he identifies a number of reforms that could reduce fraud, including making regular health insurance the primary payer of medical bills and adopting regulations that cut the time period for reporting an accident and seeking medical treatment, similar to those successfully implemented in New York State, see below. States Florida: The state s no-fault law is scheduled to expire on October 1, Insurers would like to see the auto insurance system returned to one based on the tort system because nofault personal injury protection benefits, which pay for medical care and related treatment, have been subject to fraud and abuse. In a letter to the governor and other state officials in July, Chief Financial Officer Alex Sink said that the state s Division of Insurance Fraud had received more than 3,000 complaints about PIP fraud over the past 12 months, had opened 329 cases and had obtained 225 convictions. Under the current system, unscrupulous medical clinics and attorneys can run up medical care costs for minor accidents, pushing up the cost of coverage for everyone else. Insurers say that a return to the tort system could save the typical policyholder as much as $250 a year. If the no-fault law is allowed to lapse, drivers will still have to carry $10,000 in property damage liability, which pays for damage caused by the driver or for which he or she is liable, but the law will be harder to enforce because insurance companies will no longer be required to inform the state when a driver drops the coverage. Lawmakers have not been able to agree on a fix and the special budget session, scheduled for mid-september, which would have provided an opportunity to extend the law until lawmakers had had time to agree on a new direction has been postponed. Earlier in the year, the Senate passed a bill, S.B. 1880, which would have extended the no-fault law through 2012, provided significant additional funding for antifraud efforts and required regulators to carry out a study of the current law. The proposal in the House, H.B. 7215, would have replaced the current $10,000 in personal injury protection with $15,000 in emergency care. The trigger for coverage would have been an emergency room visit. At present any health care claim, whether it comes from a chiropractor or emergency room physician, can trigger benefits, leading to abuse of the system. Hospitals fear that unreimbursed costs will soar if the law is allowed to sunset. About 40 percent of the patients treated at hospitals and trauma centers for injuries related to auto accidents rely on PIP because they have no health insurance, they say. A study by the Property Casualty Insurers of America (PCI) shows that auto injury claim costs have risen faster in Florida than the national average. During the first quarter of 2005, the average PIP claim cost shot up more than 17 percent, resulting in an overall increase of 44 percent since In terms of average auto insurance expenditures, Florida ranked 6th in 2004, according to data from the National Association of Insurance Commissioners. Among the explanations for soaring costs are a higher-than-average number of office visits to medical
3 practitioners, higher health care costs and more sprain and strain soft-tissue injury cases that are harder to evaluate both for the degree of injury and recovery. These higher costs make it easier to reach the tort-threshold limit of $10,000 and to sue for additional compensation, weakening the basis for the no-fault system. Colorado: A new study by PCI, based on a survey by the Rocky Mountain Insurance Information Association of large auto insurers doing business in Colorado, shows premiums are continuing to decline, four years after the state changed from a no-fault to a tort-based system. Data collected for these companies, which represent more than half of the state s insurers, show the average annual auto liability and physical damage premium for new business fell 32.3 percent from May 2003 to May 2007 with the auto liability premium alone dropping 40.7 percent. Just under one third of drivers (31.9 percent) purchased optional medical payments coverage. Michigan: A measure, H.B. 4301, which would significantly weaken the state s verbal threshold was passed by the House, but a companion bill introduced in the Senate is still in committee. HB 4301 broadens the definition of serious impairment of bodily functions, the trigger for lawsuits for pain and suffering. The proposal to modify the definition was precipitated by a 2004 court decision in the Kreiner case, which some people saw as overly harsh because access to the courts was denied. The Kreiner decision set out the requirements for a finding of serious impairment. No-fault laws are designed to limit costs while still providing victims of auto accidents with the necessary medical care. Michigan is the only state that sets no dollar limit on the amount of care provided. In return, the law strictly limits litigation, an often costly process, by allowing only the most serious cases to go to court. This balancing of compensation for medical care with access to payments for pain and suffering has kept expenditures for auto insurance in Michigan in check. By lowering the bar for lawsuits, HB 4301 could upset this balance and ultimately drive premiums higher. A bill that would create a medical fee schedule based on one in use for workers compensation is stalled in the House. Medical fee schedules set a maximum dollar amount that may be charged for certain common medical procedures, thus helping to keep costs down. New Jersey: The New Jersey Supreme Court ruled in March 2007 that a typical scar, in this case on the plaintiff s shoulder, does not qualify for a pain and suffering award, reinstating the trial judge s grant of summary judgment. The case provided an opportunity to further test the state s verbal threshold and the interpretation of the 1998 Automobile Insurance Cost Reduction Act as to when an injury meets the definition that allows a case to proceed to trial for monetary compensation for noneconomic damages. The case, Soto vs. Scaringelli, revolved around whether the scarring suffered by the plaintiff represented significant disfigurement or significant scarring that would substantially detract from her appearance. Insurers are urging lawmakers to modify a June 2005 New Jersey Supreme Court ruling in what is known as the DiProspero case, which could allow many more people involved in accidents to sue for pain and suffering, effectively negating the cost advantages of choosing no-fault coverage. The DiProspero ruling weakened the verbal threshold that is designed to keep all but the most seriously injured drivers from suing for noneconomic damages. At issue is whether the New Jersey legislature, in crafting changes to the no-fault law in 1998 to attract more insurers to the state and reduce the cost of auto insurance, intended to lower the threshold for lawsuits and thus allow more cases to go to court. New Jersey s no-fault law was introduced in 1973 with a monetary threshold which in 1988 was changed to a verbal one. In a precedent setting case in 1992, the state Supreme Court ruled that to meet the requirements of the verbal threshold the injury had to have a serious impact on the plaintiff s life. The language defining the threshold was modified in 1998 when the state auto insurance law was completely revamped. At the time, insurers said that allowing damages for minor injuries would cost policyholders choosing the lawsuit limitation option significantly more. Since then, cases that would not have met the original threshold have been relitigated. Until now, the state Supreme Court had declined to review decisions by lower courts which accepted that
4 the overall purpose of the law was to limit the number of lawsuits. However, in the DiProspero case, the high court reversed lower court decisions, noting that if the legislature had intended to make it more difficult for accident victims to obtain an award through the courts, then it should have written the statute accordingly. Several bills have been introduced into the New Jersey legislature since the ruling. At issue is the ruling's long-term impact. So far there has been no significant increase in auto injury case filings, according to the state s bar association. The bills would require lawsuits for noneconomic damages to be limited to injuries that are serious and permanent and have a serious impact on the plaintiff s life. A PIP medical fee schedule, a list of maximum charges for certain common treatments and procedures, has been adopted in an attempt to control soaring medical care fees paid by insurers for treatment related to auto accidents. The Insurance Department said that it will consider at a later time whether a fee schedule for hospitals is needed. New York: In New York City, a bill aimed at curbing auto insurance fraud, particularly medical clinics established specifically to file fraudulent no-fault claims, was signed by Mayor Michael Bloomberg in The legislation requires medical clinics that handle a large volume of nofault claims to file information with the City about their ownership, management and the percentage of medical bills that are no-fault claims. The legislation also prohibits the hiring of runners to help solicit individuals to participate in no-fault fraud. New York City is known to be at the center of much of the fraudulent activity in the state. An Insurance Research Council study found that although the city s residents are not more seriously injured than other New York State residents, their claims cost far more and are far more likely to be seen as involving fraud or some degree of build-up of legitimate claims by professionals who reviewed the files. Recent legislation requiring the purchase of an index number for all court filings may also reduce the number of fraudulent cases. BACKGROUND Currently, state auto liability insurance laws fall into four broad categories: those based solely on the traditional tort liability system; those that require an insurance company to pay first-party (policyholder) benefits, regardless of who was at fault in the accident, but retain the right to sue as in tort liability states; those that provide no-fault first-party benefits but restrict the right to sue except under certain conditions; and those that provide a choice between the traditional liability system and a no-fault system. These alternative systems have evolved over time as consumers, regulators and insurers have sought ways to lower the cost and speed up the delivery of compensation for auto accidents. In the early 1990s, the concept of pure no-fault, which prohibits most lawsuits for bodily injury, began to garner support. Pure no-fault addresses several societal concerns: the waste of resources and the inequities in the liability system and the need to have affordable coverage for medical care and rehabilitation costs. The first attempt at a pure no fault system was "pay-at-the-pump," a scheme to pay for no-fault auto insurance through a fee collected on gasoline sales. The "pay-at-the-pump" initiative campaign failed in all states in which the plan was considered, including California, due to opposition to the gasoline usage-based fee but the pure no-fault idea was incorporated into a variety of legislative proposals in various states including both Hawaii and California. Proposals introduced in Congress for a choice pure no-fault auto insurance system never reached the floor for a vote. More recently, some auto insurance reformers have been proposing the elimination of noneconomic damages from tort liability coverage as a way to reduce costs, with optional coverage provided as a first-party coverage with a pre-determined limit. The premium savings would come not only from the elimination of coverage but also from the reduced temptation to inflate medical costs to boost noneconomic damages which are generally calculated as a percentage of economic damages.
5 Variations on the No-Fault Concept: In the 1960s, the traditional auto liability insurance system became the target of public criticism. Dissatisfaction was expressed not only by those purchasing auto insurance but by companies and agencies marketing it and by state officials regulating it. The debate focused on the often expensive and time-consuming process of determining who is at fault legally liable when accidents occur. To reduce the delays and inefficiencies of the system, legislation was introduced in the 1970s in many states, which allows accident victims to recover such financial losses as medical and hospital expenses and lost income from their own insurance companies. In the states that have adopted such laws, the major variations involve: dollar limits on medical and hospital expenses, funeral and burial expenses, lost income and the amount to be paid a person hired to perform essential services that an injured non-income producer is unable to perform. Twenty-four states, including the District of Columbia and Puerto Rico now have laws that allow policyholders to obtain compensation for auto accidents from their own insurers. Of these, 12 states and Puerto Rico have placed restrictions on the right to sue either through a monetary threshold, which allows a suit to be filed for pain and suffering when medical expenses reach a certain stipulated amount, or through a descriptive or verbal threshold, which allows suits only when the injury incurred meets the criteria for a serious injury as defined (hence the term verbal or descriptive) by state statute. These are the only true no-fault states. The states where first-party insurance benefits have been added on to the traditional liability system are known as "add-on" states. In add-on states there are no restrictions on lawsuits, first-party coverage may not be mandatory and first-party benefits may be lower than in true no-fault states. Pennsylvania, formerly an "add-on" state, began offering consumers the choice between a verbal threshold and no restrictions on lawsuits in July (New Jersey and Kentucky also offer such a choice, except that Kentucky s threshold is monetary). This is Pennsylvania's second no-fault law. An earlier law was repealed in The District of Columbia has neither a true no-fault nor an add-on law. It offers drivers the option of no-fault benefits or fault-based coverage. In the event of an accident, a driver who originally chose to receive no-fault benefits has 60 days to decide whether to receive these benefits or to take the other party to court. This means that, in effect, there are no restrictions on lawsuits. In the late 1980s, Project NEW START, a national nonprofit consumer organization that was devoted to promoting a new auto insurance policy, developed legislation that would offer motorists a choice between a traditional liability-based policy and a strict no-fault policy. Motorists who chose the no-fault program would have had the option to purchase personal injury protection (PIP) above the basic limits and also coverage for pain and suffering. In the first full year after the law took effect, drivers who chose the no-fault policy would have seen their premiums reduced by a significant amount at least 20 percent of the statewide average premium for insurance required by the state's financial responsibility law, according to the plan. Another version of choice no-fault was known as the O'Connell plan, after University of Virginia Law Professor Jeffrey O'Connell, who, along with Robert E. Keeton, first proposed a no-fault accident compensation system in This plan allowed a policyholder who chose the tort system and was involved in an accident with a nofault driver to file a claim under the uninsured motorist provision of the policy. The no-fault driver could not sue and was immune from suits. Various modifications of these basic proposals have since been introduced in many states, along with measures known as "no-frills" policies that would provide no-fault basic coverage for economic losses to all good drivers in the state for a standard statewide premium. New Jersey's choice nofault law, passed in 1998, comes closest to this concept. As a result, a very high percent of policyholders in New Jersey have policies restricting lawsuits. By contrast, less than 50 percent have this kind of policy in Pennsylvania, the largest percentage being drivers in Philadelphia, where rates are highest. This is due, in part, to a high propensity among the city's drivers to file bodily injury claims after an auto accident. In Philadelphia typically more than half of accidents that cause some physical damage also result in a bodily injury claim, while in other
6 parts of the state the ratio of such claims to physical damage claims is much lower, insurers report. A critical decision in developing a choice no-fault system is how the choice law is framed. In New Jersey, applicants for insurance are presumed to have opted for the verbal threshold on lawsuits unless they specifically reject it; in Pennsylvania, the opposite is true. Pennsylvania policyholders are assumed to want unrestricted access to the courts unless they specifically request the verbal threshold. As a result, more than 85 percent of policyholders in New Jersey have policies restricting lawsuits. By contrast, less than 50 percent have this kind of policy in Pennsylvania, the largest percentage being drivers in Philadelphia, where rates are highest. (This is due, in part, to a high propensity among the city's drivers to file bodily injury claims after an auto accident. More than 55 percent of accidents that cause some physical damage also result in a bodily injury claim, while in other parts of the state the ratio of such claims to physical damage claims is only 17 percent, insurers report.) In 1992, Professor Jeffrey O'Connell and Michael Horowitz, Senior Fellow at The Manhattan Institute, proposed another choice no-fault program estimated to lower prices nationwide by percent. Under the O'Connell/Horowitz plan, drivers could choose no-fault or tort liability but the entire system would be converted to a first-party payment system. Thus drivers choosing compensation under the tort system would be paid by their own insurers up to the level of coverage that they had elected to purchase. (Under the current system, the level of coverage, in effect, is selected by the person being sued.) Drivers electing the limit on tort liability would be able to sue for actual damages in excess of their own coverage and would be compensated for reasonable attorney s fees. The savings would come principally from the elimination of the pain and suffering component in the personal injury protection package. Potential pain and suffering payments now act as an incentive to build up medical claims to the tort threshold. This became the basis for the federal auto choice plan, mentioned earlier. The various pure no-fault proposals considered in Hawaii and California incorporated some elements of these plans but went one step further in that they eliminated almost all lawsuits. Pay-At-The-Pump: Beginning in the early 1990s, a concept that melded a no-fault auto insurance system with funding through surcharges on gasoline was considered in several states, including California where its supporters worked to put it before the voters as a ballot initiative. However, overwhelmed by the fierce opposition to the concept by California businesses and suburban and rural motorists who would have shouldered the brunt of the gasoline tax increase, the coalition for Common Sense Auto Insurance withdrew their proposal. The initiative, called the Uninsured Motorist Act, because it would force all drivers to pay something towards the cost of auto crashes, was sponsored by financial columnist Andrew Tobias. The measure would have imposed a 25-cent per gallon surcharge on gasoline and a $141 auto registration surcharge to fund the state-run insurance operation. Bad drivers would have paid an additional surcharge. The pay-at-the-pump concept is based on the premise that the primary determinant of accident costs is miles driven, when in fact miles driven plays only a minor role in the cost of accidents. Research suggests that the major determinant is traffic density. Since the concept first surfaced in California, pay-at-the-pump bills have been introduced in Colorado, Massachusetts, Nevada and Texas and the concept was considered by the Council of the City and County of Honolulu. In Florida, the House Insurance Committee studied the feasibility of the pay-at-the-pump concept. A pay-at-the-pump bill has been introduced in Colorado periodically but it has garnered little support. And in Louisiana and Hawaii, as part of an effort in 1997 to reduce auto insurance prices, committees were formed to study the idea. Pay-at-the-pump s greatest virtue is that is would eliminate the cost of litigation, like a traditional nofault system. Beyond that, the proposal has serious flaws. First, instead of paying one premium every six months, drivers would be taxed to pay for insurance in hundreds of transactions throughout the year. They would pay every time they bought gasoline and when they registered their car. In addition, their health insurance premiums would rise since pay-at-the-pump pays only for unreimbursed medical care costs.
7 Second, it treats all drivers alike by making how much gasoline a person uses the primary determinant of how much a person will pay for insurance instead of an individual s driving experience and driving record, and the type of vehicle that person drives. Thus, a parent driving a group of ten-year-olds to a neighborhood baseball game in a minivan would pay more for insurance coverage than an eighteen-year old cruising around on a Saturday night, despite the fact that adults as a group are safer drivers than teenagers and minivans are among the safest types of cars. Small cars use less gasoline than minivans so drivers of small cars would pay less for their insurance than minivan drivers, even though small car collision claims are much higher and small car occupants more likely to suffer serious injury in a collision. Third, it places a burden on those who have to drive long distances to get to work. People who drive long distances to work in outlying areas, for example, could end up paying twice as much for insurance coverage as under the current system because pay-at-the-pump ignores distinctions between driving conditions in congested city areas where claims are high and driving conditions in the outer suburbs and rural areas. Overview of Enactment of Laws: The jurisdictions that have forms of true no-fault auto insurance and the dates on which the laws originally became effective are shown below. Compulsory firstparty/liability insurance; some restrictions on lawsuits: Hawaii, September 1, 1974 Kansas, January 1, 1974 Kentucky, July 1, 1975 Massachusetts, January 1, 1971 Michigan, October 1, 1973 Minnesota, January 1, 1975 New Jersey, January 1, 1973 New York, February 1, 1974 North Dakota, January 1, 1976 Pennsylvania, July 1, 1990 (earlier law passed on July 19, 1976) Utah, January 1, 1974 Compulsory first-party, optional liability insurance; some restrictions on lawsuits: Florida, January 1, 1972 (compulsory property damage liability) Puerto Rico, 1970 States that have repealed their no-fault laws: Nevada: effective 1974; repealed 1980 Pennsylvania: effective 1976; repealed 1984 (reenacted 1990) Georgia: effective 1975; repealed 1991 Connecticut: effective January 1, 1973; repealed 1993 Colorado: effective April 1974, repealed July 2003 Georgia repealed its no-fault law effective October 1, In states with weak no-fault laws (Georgia's monetary threshold was $500) costs tend to increase more rapidly than in states with a verbal threshold because weak laws provide the broad benefits of a no-fault system without sufficient offsetting savings almost as many cases go to court as in a traditional tort-based system. In addition, personal injury benefits (PIP) were low. Minimum coverage provided only $2,500 per accident for medical costs (although policies with higher limits could be purchased.) The combination of low mandatory PIP coverage and a low monetary threshold pushed many cases where injuries were minor into the courts, driving up costs. Then in 1993, Connecticut repealed its no-fault law. The law had been comparatively ineffective because its threshold for lawsuits was only $400.
8 Colorado s law was repealed, or more exactly allowed to expire, in 2003 after Gov. Bill Owens said that he would not sign another extension unless it significantly reduced the costs of the existing system. But lawmakers could not resolve a dispute about the extent of coverage for medical procedures. Rates in 2002 increased by as much as 20 percent, more than twice the national average, due to the no-fault s law generous medical care benefits and a low threshold for lawsuits. Effectiveness of No-Fault Auto Insurance: As noted earlier, insurers generally favor laws that provide for verbal thresholds on suits instead of dollar thresholds. One of the disadvantages of having a "dollar target" for medical expenses is that it may encourage the submission of fraudulent claims. In addition, unless the law includes a provision that enables the threshold to be adjusted to keep pace with inflation, (medical costs, for example, have been increasing at a rate of close to 10 percent a year) its effectiveness in curbing litigation is gradually eroded. The no-fault concept and strong restrictions on filing suit were given additional support by a study on bodily injury claim costs, the findings of which were made public in March The study, "Compensation for Automobile Injuries in the United States," conducted by the All-Industry Research Advisory Council (now the Insurance Research Council), showed that states with strong no-fault laws were more successful in holding down auto injury costs during the 10-year period, , than other states. New York's average bodily injury costs rose 73 percent, Florida's 71 percent and Michigan's 112 percent. (These states, all three of which have strong no-fault laws, also had much lower overall injury costs, especially Michigan.) The average rise in bodily injury costs nationwide was 146 percent during the period. There is a wide variation in no-fault laws, with significant differences in monetary thresholds and in other benefits provided. For example, monetary thresholds range from $1,000 in Kentucky and to $4,000 in Minnesota. In Utah, the medical benefits limit is $3,000 and in Michigan there is no limit on the medical benefits a claimant may receive. One problem in states with higher than average PIP benefits is that dishonest providers of professional services have found ways to abuse and cheat the system, pushing up the cost of auto insurance. New Jersey pioneered reforms designed to curb overuse of medical care in its overhaul of the auto insurance system in Other states are modeling their reforms on the New Jersey protocols. Fraud and PIP Benefits: In a number of no-fault states, PIP coverage is being exploited by fraud rings that include phony pain clinics and corrupt physicians, chiropractors and lawyers, particularly in states where PIP benefits are generous. These criminal groups have created medical mills, phony clinics that file fraudulent auto insurance medical claims. In an attempt to address this drain on resources, New York created regulation 68, a reform measure adopted in 2002 that substantially shortens the time period for reporting auto accident injuries and submitting bills for medical treatment is expected to reduce such claims. The reduced notification time allows insurers to look at the treatment plan sooner, thus providing fewer opportunities for unnecessary diagnostic tests and treatments. New Jersey dealt with the problem of unnecessary medical treatment by creating precertification medical guidelines, or Care Paths, for the treatment of specific injuries that result from auto accidents, primarily soft tissue injuries. In Massachusetts, where experts estimate that $80 million in personal injury claims are fraudulent, the state is seeing the same increase in faked accidents, the use of runners, phony medical clinics and dishonest medical providers and attorneys that other no-fault states are experiencing. KEY SOURCES OF ADDITIONAL INFORMATION Summary of Selected State Laws and Regulations Relating to Automobile Insurance, American Insurance Association. Insurance Information Institute, Inc. - ALL RIGHTS RESERVED
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