UNIFUND ASSURANCE COMPANY Submission to the PUB Automobile Insurance Review Hearings

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1 UNIFUND ASSURANCE COMPANY Submission to the PUB 2005 Automobile Insurance Review Hearings March 11, 2005

2 Unifund Assurance Company Unifund Assurance Company is one of the largest underwriters of personal passenger automobile insurance in Newfoundland and Labrador. It does not sell commercial automobile insurance. While incorporated as a Federal Canadian company since 1980, Unifund began as a local provincial insurer in The Johnson Corporation group of companies including Unifund as insurer and Johnson Inc. as agency (commonly called Johnson Insurance) are headquartered in St. John s and have served the consumers of this province for over 125 years. In addition, Unifund writes personal passenger automobile insurance in Alberta, Ontario, New Brunswick, Nova Scotia, and Prince Edward Island. Together with the locally incorporated insurers, roughly half of the private passenger vehicle owners are insured by an insurance company headquartered in this province. A far higher percentage of consumers is represented by an agent or broker based in this province. Collectively we employ hundreds in this province. While each of the insurers and each of the agents and brokers compete with one another, collectively our employees in this province have a major role in how the auto insurance product and services are provided to the province s consumers. Unifund therefore provides its views to the Board from the perspective of consumers in Newfoundland and Labrador as well as direct experience with the impact of the auto insurance reforms on the industry and the consumers in other provinces with private auto insurance. Unifund Submission to the PUB Page 2

3 SUMMARY OF RECOMMENDATIONS: RECOMMENDATION #1: While Unifund sees significant merit with IBC s recommendation #1 to adopt a New Brunswick style cap, we believe it is Government s role to define the product for consumers. We are prepared to deliver whatever product the Government chooses to legislate, provided Unifund is able to price it with a reasonable expectation of return on equity and investment.. RECOMMENDATION #2: Unifund supports Mandatory Section B, provided Government achieves at least the same level of estimated savings from the introduction of a meaningful reform of the other aspects of the product (e.g. NB style cap on pain and suffering awards). RECOMMENDATION #3: Any auto insurance reform that changes the basic product and will result in changes to policy wording or premium rating, should be introduced with sufficient lead time (6 months) so that Government, regulators (PUB) and insurers are able to properly adopt the change and communicate the changes to consumers. If possible, any changes should be effective January 1 so as to allow for easier analysis of the effect of change on claims experience (which is traditionally done on a calendar year basis). RECOMMENDATION #4: Unifund supports IBC s recommendation #2 urging Government not to implement any further rate freeze beyond the current freeze that ends on March 17, RECOMMENDATION #5: Unifund supports IBC s recommendation #3 to support the continued use of age and sex as rating factors in auto insurance. RECOMMENDATION #6: The most effective cost relief for consumers would come from an elimination of the sales tax on auto insurance. As the Government s fiscal situation improves, it can and should implement general sales and premium tax reductions for the benefit of auto insurance consumers. RECOMMENDATION #7: Unifund supports improved road safety measures such as improved road maintenance and policing, as well as the reintroduction of mandatory vehicle inspection for older vehicles. RECOMMENDATION #8: Unifund recommends that Government study the effect of the widespread use of contingency fees (and fee levels) and advertising by trial lawyers; and introduce effective regulation to protect the public from excessive fees and from inappropriate and misleading advertising. Unifund Submission to the PUB Page 3

4 RECOMMENDATION #9: That the PUB and the provincial Superintendent of Insurance work to create regular communication mechanisms with OSFI such that the public policy objectives of the regulation of rates, market conduct and solvency are better coordinated. RECOMMENDATION #10: Unifund supports IBC s recommendation #5 regarding the introduction of a regulatory regime in partnership with industry, based on a proactive stewardship and risk based system. Unifund Submission to the PUB Page 4

5 The Purpose of these Hearings the desire for reform Government ultimately dictates what the auto insurance product the insurance companies sell. Government can change the laws that the judges apply to award the damages arising from car accidents. Government can also regulate all other players in the system including lawyers and doctors. Insurance companies simply provide insurance to protect drivers from the risk of paying those awards. Government must use its public policy making role to decide how to balance the amount paid to victims against the amount vehicle owners must pay to provide a pool of money to fund those claims. Unifund fundamentally wants a system and insurance product that is clearly defined, fairly implemented and regulated and permits insurers to price the product with a reasonable expectation of profit having regard to the business risks involved in automobile insurance. Unifund has the experience of providing insurance under the different systems in Alberta, Ontario, New Brunswick, Nova Scotia, PEI and here at home. All of these provinces limit pain and suffering awards (general damages). Those who promote the government run systems in Manitoba, Saskatchewan and Quebec ignore the fact that those systems drastically restrict the right to sue and the amount awarded for pain and suffering for minor injuries. Regardless of the system, the insurer must be able to price the product appropriately. The current Benchmark rating system of the PUB recognizes consumers benefit from fair competition. Insurers, like providers of any lawful product or service, are entitled to price that product or service at a level that has an expectation of profit. In this province, rates have been regulated based upon the PUB s independent judgement as to what fair rates are for consumers, based on all industry results. Government has listened to the citizens and has heard that they want auto insurance premium rates to be stabilized and if possible, reduced. Whatever the system, there must be enough money collected from vehicle owners in premiums to pay for the claims and operation of the system. When only about 5% - 10% of vehicle owners have an accident in a year, it is no wonder most consumers feel he or she is a good driver and shouldn t have to pay high rates. In fact, most are good drivers and yet any driver (good and bad) can have an at fault accident. And any driver can cause a very serious accident with loss of life or serious injury. Even relatively few accidents (frequency) can translate into an enormous amount of money paid in claims, particularly minor bodily injury claims. The fact is that the overall premiums collected from all drivers must pay for the roughly $250 million in annual claims cost, plus the operating expenses and reasonable return for the industry. The PUB, under the Benchmark system, provides an independent assessment of what the average fair rates should be. Unfortunately, those fair premium rates for all drivers, including good ones are at levels that many average consumers in the province find high. Given the level of unemployment and average incomes in the province, this is not surprising. The only way to address the premium rate levels is to address the underlying claims costs. Consumers need their Government to show leadership to introduce meaningful positive reforms that improve the product and reduce claims cost inflation and ultimately premium inflation over the long term. Government has an opportunity to harmonize the product with other jurisdictions to adopt proven reforms and to avoid questionable reforms. Unifund is prepared to implement whatever product reform works best. Unifund Submission to the PUB Page 5

6 Caps and Deductibles The government has asked the PUB to review several alternative approaches and definitions of caps and deductibles with the assistance of the recent closed claims study. The conclusions as to what works and does not are clear and are consistent with the experiences across Canada under both private and public systems. Other submissions and presentations detail extensively the pros and cons of the MOW closed claims study process and analysis, but we urge the PUB and Government not to get lost in the trees and miss the forest. The recent closed claims study by MOW simply provides another example to demonstrate what has been well understood within insurance industry corporate, professional and regulatory circles for some time. Deductibles are not an effective way to reduce costs, particularly at lower levels (like the current $2,500). The effectiveness of any deductible reduces over time (erosion). Caps can be effective to reduce costs at lower levels (for example, $2,500) if the cap definition is strongly worded and does not insert undue subjectivity or create incentives (like time limits) that can affect how a claimant may behave. Any analysis of any proposed restriction on damages payable must include the fact that victims and their counsel will seek to maximize the payments and that an estimated 99% of claims (based on the MOW closed claims study) do not go to court and are settled based on a negotiation. Any restriction (deductible, cap or any other method) affects accident victims. Accident victims may also be buyers of auto insurance, but they do not have to be. An accident victim is exercising a legal right to sue for damages that, in the absence of the auto insurance policy, the vehicle owner would have to pay out of his or her own pocket. Our clients, the vehicle owners, want accident victims to be paid a fair amount for genuine, proven losses. All of our clients (indeed all of us as vehicle owners) suffer if the system of paying accident victims is too generous, or contributes to slower recovery from injury. It is up to Government to balance the interests and wishes of the vehicle owners buying insurance against the interests and wishes of the accident victims. All provinces, including this one, have restricted the accident victims interests. We believe that Government can justify further restrictions because unlike other types of injuries (like slip and fall ) accident victims are guaranteed, due to mandatory auto liability insurance, that there will be money available to fund not-at-fault accident victims damages. Further, although general damages are negotiated based on precedent, why is a certain injury worth $10,000 and not $50,000, or vice versa? Ultimately, these are highly subjective calculations and arbitrary, unlike special damages (like lost wages or out-of-pocket costs) that can be calculated with precision. Since the Trilogy of cases in the 1970 s the Supreme Court of Canada has recognized the limitations of general damage calculations for pain and suffering. Therefore, it is clear that Government is entitled to direct the courts on how it wishes general damages to be calculated, as a reflection of sound public policy. The ultimate objective should be to help accident victims get better faster, not simply substitute money for pain and suffering. We note the presentation by Occupational Therapist Sharon Horan to the PUB pointed to evidence that the emphasis on the litigation issues and awards for pain and suffering under the current system may actually contribute to slower recovery. In that respect, the introduction of a reform like a cap may actually contribute to behavioral changes that helps victims focus more on recovery, to their ultimate benefit. Indeed, anecdotal evidence from New Brunswick suggests that may be occurring in that province since the recent introduction of its cap. Unifund Submission to the PUB Page 6

7 We support the analysis and recommendations of the IBC on the question of deductibles and caps. We also endorse the testimony of the IBAN witnesses as to their views of the best interests of consumers and how the actual practice of accident and injury law works in this province. This issue is simply about how best to collect and then distribute insurance premiums among stakeholders vehicle owners, accident victims, insurers, lawyers, health professionals and others. The issue has consistently become highly politicized by certain interest groups. Government is at the beginning of its mandate and it ought to address this issue now so that the positive results will have time to be properly realized before the next election. If the Government, after a review of all parties submissions, chooses to not reform the current scheme ($2,500 deductible) the Government ought to clearly state its public policy choice. That choice would be that premium price stability and reductions for vehicle owners who pay for the coverage has been deemed not as important as the interests of accident victims (and the trial lawyers who represent them) who do not pay for the coverage. The past experience means failure to introduce a meaningful reform will lead to higher than inflationary increases in auto accident injury awards and therefore, insurance premiums. RECOMMENDATION #1: While Unifund sees significant merit with IBC s recommendation #1 to adopt a New Brunswick style cap, we believe it is Government s role to define the product for consumers. We are prepared to deliver whatever product the Government chooses to legislate, provided Unifund is able to price it with a reasonable expectation of return on equity and investment. Mandatory Accident Benefits (Section B) Coverage Unifund supports and recommends the purchase of Section B coverage by consumers. However, this will result in an increase for the estimated 25% of consumers who do not buy the coverage. The purpose of these reform hearings is not to increase claims costs and premiums. RECOMMENDATION #2: Unifund supports Mandatory Section B, provided Government achieves at least the same level of estimated savings from the introduction of a meaningful reform of the other aspects of the product (e.g. NB style cap on pain and suffering awards). Unifund Submission to the PUB Page 7

8 Moving Forward With Reform We understand that the Government has indicated it wishes to review the report of the PUB due to be delivered at the end of and legislation to implement any regulatory or product reform would be introduced in the Spring 2005 session of the House of Assembly. We respectfully submit that any significant reform product ought to be introduced at an effective date at least 6 months in the future. This will provide sufficient time for consumers to be properly informed as to the effect of the changes on them by Government, and their insurers, brokers and agents. There must also be sufficient time for the industry and regulators (including the PUB) to incorporate the changes into their rate and underwriting filings, manuals and corporate systems, and make any necessary changes to regulated wordings of policies, endorsements, etc. Generally, the history of regulatory changes in the insurance industry has tended to underestimate the time required by industry and the regulators themselves to properly implement such changes and this is not in the best interests of consumers. We also respectfully submit that the introduction of the $2,500 deductible combined with the mandatory freeze and rollback of all insurers rates by a uniform amount was not supported by the advice of the PUB/Government s own actuary and is inconsistent with the system of rate regulation in the province. Under a Benchmark system any indicated rate change refers to a Benchmark midpoint rate and is not intended to be applied to any particular insurer, much less all insurers. Insurers set rates within the Benchmark ranges based on many factors including their judgment as to pricing within a competitive environment. Those judgments on pricing strategies can change. By freezing and rolling back all insurers rates, the Government freezes the status quo for competition and logically reduces some insurers more, and others perhaps less than appropriately. (Even assuming the savings are estimated accurately.) We note that it is apparent from MOW s recent report that their original estimates of savings from the introduction of the $2,500 deductible were overestimated. Providing a sufficient lead-time will allow the PUB to adjust its Benchmarks and then all insurers can re-file rates, prior to the effective date within a competitive environment. This will ultimately serve consumers best. RECOMMENDATION #3: Any auto insurance reform that changes the basic product and will result in changes to policy wording or premium rating, should be introduced with sufficient lead time (6 months) so that Government, regulators (PUB) and insurers are able to properly adopt the change and communicate the changes to consumers. If possible, any changes should be effective January 1 so as to allow for easier analysis of the effect of change on claims experience (which is traditionally done on a calendar year basis). Rate Freezes Unifund supports the IBC submission in this regard. Unifund Submission to the PUB Page 8

9 RECOMMENDATION #4: Unifund supports IBC s recommendation #2 urging Government not to implement any further rate freeze beyond the current rate freeze that ends on March 17, Age and Gender as Rating Factors We support the position of the IBC (and others) on the issue of age and sex rating. Removing these rating factors does not reduce premiums it simply shifts premium costs and creates cross-subsidization. It also may increase overall claims frequency and severity, as more young male drivers will be able to drive and cause all premiums to rise in the province. RECOMMENDATION #5: Unifund supports IBC s recommendation #3 to support the continued use of age and sex as rating factors in auto insurance. Taxation We understand that Government cannot eliminate taxes overnight given current fiscal realities. However, Unifund suggests it is wrong for Government to collect a risk-free guaranteed 15% on every auto insurance policy in the province. This is almost double the province s share of HST. This equates to a return that is higher than the average commission paid to auto insurance brokers. It is also far higher than the return on equity currently permitted by auto insurance companies that must bear the risk of financial loss. The only stakeholder that appears to do better than Government is trial lawyers who earn an estimated 25% in average contingency fees. RECOMMENDATION #6: The most effective cost relief for consumers would come from an elimination of the sales tax on auto insurance. As the Government s fiscal situation improves, it can and should implement general sales and premium tax reductions for the benefit of auto insurance consumers. Road Safety and Health Care Unifund, like other insurers, supports road safety initiatives by the Government. Stricter graduated licensing for inexperienced drivers, more effective laws against driving impaired by the use of alcohol and drugs, more effective laws against vehicle theft by adults and minors, driving without insurance, better roads, better and more law enforcement of the rules of the road all lead to safer roads. This leads to fewer accidents and injuries and helps reduce auto insurance costs and premiums. Government can pass better laws, but Government also collects millions of dollars from the auto insurance industry in direct and hidden taxes, all of which is ultimately paid by the consumer. Government is not investing the same amount back into better roads, improved policing, vehicle safety inspections and technological improvement to allow motor vehicle registration / insurer interfacing. Government should be part of the solution and not part of the problem. Unifund Submission to the PUB Page 9

10 Also, health care issues affect accident victims. Waiting lists for treatment, shortages of doctors and health care specialists affect and delay healing. Generally speaking, the longer the recovery the higher the general and special damages. Most accident victims would much rather get better faster than collect more money. Any inefficiencies or ineffectiveness in the health care system contributes to claims costs inflation. To the extent Government improves the health care system, it will assist accident victims recover faster and auto insurance policyholders achieve stable premium rates. Again, Government should be part of the solution and not part of the problem. Unifund also supports the reintroduction of mandatory vehicle inspections for older vehicles. RECOMMENDATION #7: Unifund supports improved road safety measures such as improved road maintenance and policing, as well as the reintroduction of mandatory vehicle inspection for older vehicles. Lawyers Contingency Fees and Advertising Unifund believes there is a direct relationship between the increase in bodily injury claims costs for minor injuries and the widespread introduction of legal advertising and contingency fees. Government proposed changes in this area over ten years ago but backed down due to a concerted lobby by trial lawyers. Legal advertising has contributed to an inappropriate societal emphasis on substituting money for pain and suffering rather than helping victims recover faster. However, unlike contingency fees in the US, there is little or no public advertising or disclosure of fee levels, suggesting no competition by trial lawyers for clients based on the level of contingency fees. Are consumers getting the best deal possible? RECOMMENDATION #8: Unifund recommends that Government study the effect of the widespread use of contingency fees (and fee levels) and advertising by trial lawyers; and introduce effective regulation to protect the public from excessive fees and from inappropriate and misleading advertising. Regulatory Disconnect Most insurers are regulated as to solvency by OSFI, which is recognized as a leader in solvency regulation in the world. Unlike the US and European countries, we have a separate provincial authority (Superintendent of Insurance and Public Utilities Board) to regulate market conduct and rates. In other States and countries one regulator deals with all issues. It is our observation that these separate regulatory authorities and the different levels of government in our country suffer from a lack of communication and misunderstanding of each other s perspectives. For example, a solvency regulator often views a period of low returns or losses as an issue requiring rate increases while the rate or market conduct regulator regards those same rate increases as a consumer problem. Better direct communication between regulators and governments, and subsequently to the public, as to these perspectives would better serve insurers and consumers. Unifund Submission to the PUB Page 10

11 RECOMMENDATION #9: That the PUB and the provincial Superintendent of Insurance work to create regular communication mechanisms with OSFI such that the public policy objectives of the regulation of rates, market conduct and solvency are better coordinated. Furthermore, Unifund supports the IBC recommendations regarding regulatory reform. RECOMMENDATION #10: Unifund supports IBC s recommendation #5 regarding the introduction of a regulatory regime in partnership with industry, based on a proactive stewardship and risk based system. Unifund Submission to the PUB Page 11

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