1 Ethics and E&O Claim Prevention in Structured Settlements Richard B. Risk, JD, CSSC
2 Introduction Negligent, unethical and illegal practices Exposure of broker to E&O claims Exposure of plaintiff s attorney to malpractice claims Exposure of defense counsel to malpractice claims Exposure of claim adjuster to malpractice claims
3 Topics of Discussion The ongoing evolution of the industry Role of the defense broker Role of the plaintiff advocate Role of the liability insurer Role of the asset provider Common practices to avoid or counter
4 The Ongoing Evolution Created and organized as a defense ploy Barriers to entry Emergence of plaintiff advocate specialists Shifting of power
5 Defend insured tortfeasor Pay cost of defense Role of Liability Insurer Indemnify for judgment or settlement up to policy limit Must allow defense attorney to exercise independent judgment in handling case on behalf of client
6 Role of Claim Adjuster Agent of liability insurer Duty is to settle claim within settlement authority Duty is to monitor status of negotiations, mediations or trial and report to supervisor Must not interfere with professional judgment of attorney hired by liability insurer to defend insured tortfeasor If negotiating with unrepresented claimant, must disclose conflict of interest and not imply that he or she is an advocate of the claimant to settle the case See Jones v. Allstate Ins. Co., 45 P.3d 1068 (Wash. 2002), and Allstate Ins. Co. v. West Virginia State Bar, 233 F.3d 813 (2000)
7 TIP The lessons of Jones v. Allstate can be applied to a defense broker negotiating on behalf of a liability insurer to settle with an unrepresented claimant, if the defense broker represents himself or herself to be neutral. There is an inherent conflict of interest because the broker is an agent of an adverse party.
8 Role of Defense Attorney Hired by liability insurer to defend insured tortfeasor, usually in a long-term relationship where insurer uses an attorney or group of attorneys exclusively to defend their insureds. Expected to exercise independent judgment in handling case on behalf of client (the defendant) without interference from employer in clientlawyer relationship, per ABA Model Rules of Professional Responsibility 1.8(f) Often pressured by liability insurer to put interest of liability insurer ahead of client Can cause liability insurer to be vicariously liable for attorney s acts, if insurer exercises control See Trau-Med v. Allstate, Tenn. W SC-R11-CV (2002), and Givens v. Mullikin, Tenn. W SC-R11-CV (2002).
9 Role of Defense Broker Appointed agent of product providers Duty to life insurance company in some states where statute specifies Engaged by liability (P&C) insurer to assist claim adjuster in settling claims Role is to save money for liability insurer May have rebating agreement or other quid pro quo arrangement with liability insurer May be expected to force annuity premium to affiliate Expectation is to be compensated by annuity commission, which is part of plaintiff s recovery Expects to be protected by approved broker list Represents to plaintiff to be a neutral party to enhance benefits to the plaintiff Does not disclose conflict of interest Expects to be released along with liability insurer Engages in law practice under real estate closing model
10 TIP Dual representation agreement being used by defense brokers puts plaintiff s attorney at risk Conflicts are not fully disclosed to plaintiff Applying rules of professional conduct for attorneys: A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless: (1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and, (2) each client consents after consultation. ABA Model Rules 1.7(a). See also Model Code DR 5-101(A) and Restatement of Law Governing Lawyers 202
11 TIP Dual representation agreement continued: Paragraph (a) prohibits representation of opposing parties in litigation. Simultaneous representation of parties whose interests in litigation may conflict, such as coplaintiffs or co-defendants, is governed by paragraph (b). ABA Model Rules 1.7 note 7.
12 TIP Dual representation agreement continued: A lawyer shall not represent a client if representation may be materially limited by the lawyer s responsibilities to another client or to a third person, or by the lawyer s own interests, unless (1) the lawyer reasonably believes representation will not be adversely affected; (2) the client consents after consultation [which] shall include explanation of the implications and the advantages and risks involved. ABA Model Rules 1.7(b). See also Model Code DR 5-105(A) and Restatement of Law Governing Lawyers 202
13 Role of Plaintiff Broker Appointed agent of product providers Duty to life insurance company in some states where statute specifies Duty of loyalty to plaintiff through plaintiff s attorney Duty to provide comprehensive settlement planning to plaintiff, similar standard of care as plaintiff s attorney Enters into contract for service to plaintiff with expectation of being compensated from annuity commission, which is part of plaintiff s damage recovery, as third-party beneficiary Does not expect to be released from liability when defendant and insurer are released Engages in law practice under real estate closing model
14 Role of Plaintiff Attorney R. Thomas Beadles, Esq. Trial Lawyer
15 Role of Asset Provider Appoints licensed agents through general agency system Operates in a competitive marketplace Provides medical underwriting on proposed measuring life, if asset is to be annuity Offers assignee entity to own qualified funding asset Provides sales support to broker
16 Rebating Scheme Macomber v. Travelers (Connecticut) Stafford v. Allstate (Texas) Coppedge v. State Farm (Texas) Blattenberg letter of 6/25/2002 naming: Ringler, EPS, SFA, Cambridge Galaher, Pension Company, Settlement Planning, American Settlements, Diversified Settlements, Financial Settlements, Brant- Hickey Associates, Settlement Associates, The Alliance LeBoeuf Lamb Opinion to NSSTA (1989)
17 TIP No deduction shall be allowed for any payment made directly or indirectly, to any person, if the payment constitutes an illegal bribe, illegal kickback, or other illegal payment under any law of the United States, or under any law of a State (but only if such State law is generally enforced), which subjects the payor to a criminal penalty or the loss of license or privilege to engage in a trade or business. 26 U.S.C. 162(c)(2)
18 TIP If you are forced (or volunteer) to split a case with a defense broker affiliated with a brokerage known to rebate, you should advise the plaintiff s attorney of this and suggest that the attorney, to be safe from later allegations of overcharging an attorney fee, consider reducing the contingent fee to the known cost to the defendant or liability insurer.
19 Short-Changing Scheme Lyons v. Medical Malpractice Ins Ass n Contractual privity exists in a settlement, and intentional or negligent misrepresentation of an annuity s cost by the defense constitutes fraud Macomber v. Travelers Defendant or insurer must not only provide payments as promised but must also spend what it represented as the cost Constitutes fraud, negligence by П atty
20 TIP Be sure to include in the Settlement Agreement and Release the cost of the periodic payments as represented by the defense, to ensure contractual privity. The cost should not be shown as consideration, but elsewhere when talking about the right to assign the periodic payment obligation created as a settlement term.
21 Extortion Tax benefit (called a subsidy in legislative history) intended as public policy to encourage structure Qualified funding asset is part of plaintiff s recovery Compensation of defense broker is defense cost Section 130 veto as leverage Structure through us or take cash Forces plaintiff to give up property right of tax subsidy
22 Extortion The act or practice of obtaining something or compelling some action by illegal means, as by force or coercion. Also termed statutory extortion. Black s Law Dictionary, 7th Ed. (1999)
23 TIP Coach plaintiff attorneys to include in mediation summaries that each side is to bear own costs and expenses. That sets the foundation for the argument that compensation for a defense structured settlement broker is a defense cost and should not come from the annuity commission.
24 Antitrust Behavior Approved market lists: Appear to violate the restraint of trade provisions of 15 U.S.C. 1 ( Sherman One ) Since all agreements are in restraint of trade, courts apply rule of reason unless arrangement is per se illegal Look for cartels among insurers and their approved market lists This could be found to be reciprocal dealing or coercive reciprocity, akin to tying arrangements, which tend to raise prices and are considered per se illegal See Betaseed, Inc. v. U&I, Inc. 681 F.2d 1203 (9th Cir., Wash. 1982)
25 Unwarranted Restrictions Common prohibition against periodic payments being anticipated, sold, assigned or encumbered Vestige of pre and NSSTA v. NASP Life markets slow to recognize /11 VCF template release Plaintiff attorney and plaintiff broker exposed to claim by plaintiff
26 TIP Always seek to modify the uniform qualified assignment document to acknowledge the rights under 26 U.S.C to sell, assign, pledge or other form of encumbrance or alienation for consideration of periodic payments. If life market refuses, document that you have explained the unnecessary restriction and advised claimant of the option to switch to another company. Consider getting release.
27 Negligent Planning Failure to consider a structure Failure to preserve Medicaid eligibility Failure to provide liquidity for contingencies, i.e., medical, estate taxes Failure to consider risks of cash settlement, i.e., dissipation, bad investments See Grillo v Henry, Grillo v. Pettiette, et al.
28 TIP A Monte Carlo analysis uses scientific principles in calculating the probability that a financial plan will meet its long-term objectives. Many settlement planners are using these programs to demonstrate to plaintiff attorneys the viability of a structure, with its guarantees, as the foundation for a financial plan, as compared with investments that are subject to market risks, whether managed by the plaintiff or a professional manager.
29 Negligence in Quoting Failure to comply with state laws and regulations on insurance sales presentations Use of presentation systems that require importation of data from life insurance company quoting software Failure to present necessary caveats, i.e., expiration date, company disclaimers, rate series, rated age assumptions, cost, etc. See Crutchfield v. Ringler Associates, Civil Action No (E.D. La. 2002)
30 TIP Always use the annuity company s software quoting system to prepare illustrations, showing costs, fees, rated age assumptions, expiration dates, rate series, and the home office s disclaimers. This can eliminate a major cause of E&O claims.
31 Negligence in Documents Creating actual or constructive receipt Failure to address punitive damages Improper assignor (obligor and party) Multiple settlement agreements Failure to document cost of periodic payments Failure to document physical injury
32 Misrepresentation of the Law It is unethical for an agent to misrepresent the law to a represented or unrepresented claimant and may constitute the unauthorized practice of law. Examples: What constitutes constructive receipt Qualified settlement funds post tax risk
33 Laundering of Funds Funds constructively received by claimant or claimant s agent (i.e., attorney) may not be paid into a qualified settlement fund then used as consideration to an assignment company to transfer periodic payment obligation. There is a name for this: tax fraud.
34 What This Means You are a part of one of the most corrupt industries in the United States Illegal, immoral and unethical conduct is rampant Do not be tempted to engage in it Be aware of it when you see it and document it, if you can Initiate appropriate action against perpetrators
35 Conclusion You hold the moral high ground on this issue Do not succumb to intimidation by those who engage in this conduct and stand to lose illicit gains if you challenge their actions If they take illegal or tortious action against you, seek redress through the legal process In time, your side will prevail
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