The New York Insurance Association

Page 11 The New York Insurance Association Prepared by NEW YORK INSURANCE ASSOCIATION, INC. T he New York Insurance Association, Inc. (NYIA) is a statewide trade association of property and casualty insurers. NYIA is comprised of about 75 member insurers collectively writing more than $7 billion in premium on New York risks. Our membership roster consists of stock and mutual companies, both large and small. It includes the largest personal lines writer and the two largest commercial lines writers in the United States as well as small cooperative insurers writing in only a few counties in New York. NYIA s primary objectives are to keep members apprised of New York regulatory and legislative developments which may affect them and to lobby the Legislature and the Insurance Department on issues of importance to our members. In support of these objectives, NYIA also engages in communications designed to help the general public better understand insurance principles, as well as hosting a variety of seminars on emerging topics of interest. Enact No-Fault Auto Insurance Reform For nearly four years now, after several years of decline, the price of auto insurance in New York State has been rising. Every objective observer who has looked at the problem has concluded the same thing. The increases in insurance losses and, consequently, insurance rates are being driven by rampant fraud in the state s no-fault system. The Pataki Administration recognized the problem early on and responded. Regulatory changes have been made. The Governor has created a special Auto Insurance Fraud Prosecutor to work with local D.A. s and the Insurance Department s Fraud Bureau to step up prosecution of no-fault fraud. While progress is being made, fighting fraud without the necessary changes in law is an uphill fight. The sad truth is that no fault fraud is rampant because New York s laws provide criminals with a good chance of getting away with it. Small wonder that local District Attorneys report that former street level drug dealers are now converting to staging fraudulent auto accident. It pays well, the penalties are less severe and the risk of getting caught is still low. What is needed is a comprehensive approach to auto fraud and auto rates because the two are directly related. Both houses of the legislature have introduced various bills, but the Assembly remains adamant about constructing yet another layer of bureaucracy by creating a consumer advocate in addition to the Attorney General and the Superintendent of Insurance. The time has come for the Assembly to follow the Senate and Governor s lead and enact meaningful reform of our auto insurance laws. The Legislature argued about the particulars last year, but nothing happened. Since then matters have gotten worse. Insurance losses have mounted. Rates have risen. More people are finding it difficult to get auto insurance in the regular market. Reform of no-fault fraud must come this year and we encourage the legislature to enact meaningful reform before leaving Albany. continued on next page ALLEGANY CO-OP INSURANCE COMPANY 9 NORTH BRANCH ROAD CUBA, NEW YORK 14727 A is for Allegany Insurance and more A Proud Member of the New York Insurance Association, Inc. Proud supporter of the New York Insurance Association

Page 12 continued from previous page Restore Flex-Rating for Auto New York auto insurance rates are nearly the highest in the nation. Two years ago the Assembly allowed the flex-rating provision to expire. This law provided insurers a 7% flex band in which they could raise or lower premiums without seeking prior approval from the Insurance Department. Without this statute all carriers must submit each and every rate increase or decrease a bureaucratic approval process. NYIA supports re-enacting of the flex rating statute which will encourage insurers to experiment with new markets and ease the burden for doing business in New York. Repeal Labor Law (Sections 240 & 241) Two years ago the General Accounting Office (GAO) released a report outlining how the availability of commercial insurance has an impact on the economy of the country. The report was prepared in response to the shortage of commercial insurance terrorism coverage but the principle outlined in the GAO report apply to shortages of commercial insurance for whatever reason. New York policymakers need to take a close look at the report. Here in New York there is a growing shortage of commercial insurance for contractors, especially those who have workers on ladders and scaffolds. The reason for the shortage is quite simple. Section 240 of the State Labor Law imposes absolute liability on a property owner for elevation related injuries to workers. That liability is imposed even when there is evidence that the worker was drunk, on drugs or disregarded the contractor s safety policies. Insurers have been paying these claims for a long time but in the past few years they are becoming more frequent and the size of the awards is growing. Half million and million dollar cases are becoming almost commonplace. That s to be expected of course, since property owners, contractors and insurers have absolutely no defenses against the claims. Not surprisingly a growing number of insurers have chosen to stop writing many lines of contractor insurance. The ripples from those decisions are starting to be felt on the State s economy. In fact a number of businesses testifying recently to the State Insurance Department cited Section 240 Labor Law problems, not terrorism insurance as their top insurance concern. New York is the only state in the nation to impose strict liability for elevation related injuries. The time has come for New York to repeal Section 240 and join the rest of the country with a reasonable common law standard. The future of New York s economy may depend on it. A safe place to work does not have to mean that there is no place to work. NYIA supports repeal of this outdated and costly statute. Adopt Tort Reform There are tremendous abuses of the tort system in New York State and civil justice reform is among the key priorities of the New York Insurance Association. The Association is a member of the New Yorkers for Civil Justice Reform, a statewide coalition with 1,200 individual and corporate members including more than 100 trade associations, professional societies and chambers of commerce representing hundreds of thousands of businesses of all types and sizes, including farmers, physicians, accountants and other professionals; and virtually every school district, city, county, town and village government in the state. The New York Insurance Association joins the highly diverse organizations and individuals which make up the coalition and we are united in strongly supporting The Civil Justice Reform Act as an effective measure to restore fairness, balance and common sense to a system that has generated tremendous growth in economically damaging tort litigation in New York. Tort reform has the support of ordinary people from every walk of life for one simple reason because everyone knows that frivolous litigation has dreadful affects on the economy. Many consumers face outrageous liability insurance costs that are increasing every year. Only the personal injury lawyers stand in the way of reasonable reforms that could bring down insurance costs for everyone, including doctors, small home builders, roofers, and general contractors, independent auto leasing companies, and even New York drivers. Amer. Transit Page 2

Did you know... A co-defendant in a tort suit who is held just 1 percent liable for an injury can be forced to pay 100 percent of the damages. There is no limit on what juries can award for non-economic losses, such as pain and suffering? Even though these concepts are impossible to measure or quantify. Workers injured at construction sites can expect to automatically win tort suits against employers, regardless of their own culpability.. A person injured mostly through his own negligence including consumption of illegal drugs or excessive amounts of alcohol can still collect damages from other parties. Retailers can be dragged into lawsuits over product defects of which they had no knowledge and for which they had no actual responsibility. Employers can be sued both for providing AND failing to provide honest references about former employees. A criminal can collect damages for injuries suffered while fleeing the scene of a crime. Manufacturers who invest in research and innovation to make their products safer can be penalized by having these improvements used as evidence in litigation. New York s Civil Justice System Is Bad For Your Health Our broken civil justice system makes New York an especially bad place to be sick. Our tort laws actually encourage lawsuits against doctors. The more lawsuits the more it costs doctors to get insurance. Doctors simply can t afford to practice in New York anymore. Many have already left. Access to quality healthcare is getting tighter and tighter. And it will only get worse. New York s Civil Justice System Is Driving Car Leasing Out Of The State. Hope to lease a car in New York? It s getting harder and harder and may soon be impossible--thanks to New York s vicarious liability law. New York s the only state in the country with vicarious liability, which means that car leasing companies can be held liable for accidents which they had nothing to do with. It s like holding your bank responsible for every purchase you make. It s unfair. It s unreasonable. And car leasing companies are fleeing New York because of it. New York s Civil Justice System Is Sending Housing Prices Through The Roof. An antiquated provision in New York s labor law adds around $10,000 to the price of a new home. Which makes it impossible for middle and lower income New Yorkers to afford their first home. New York is the only state that holds builders 100% liable for worker accidents they had nothing to do with. Even if the worker is drunk. It s called strict liability and it s strict alright. Besides being ridiculously unfair it undermines common sense notions of personal responsibility. How would you like to be held financially responsible for someone who hurts himself because he s drunk on the job? Strict liability has caused a massive liability insurance crisis here in New York. The Lawsuit Explosion Between 1988 and 1996, annual tort case filings in New York State grew by nearly 60 percent, from 53,104 to 84,089. That s an average of nearly 250 personal injury lawsuits filed each and every business day. The state government, municipalities and school districts throughout New York spend hundreds of millions of dollars a year to defend against lawsuits, mainly of the slip-and-fall variety. For New York City alone, the tort tab was $280 million in 1996. Here are the top ten reasons NYIA supports Civil Justice Reform 1. New York has the 3rd highest number of lawsuits in the nation. With over 80,000 lawsuits filed annually, New York has an average of 300 new lawsuits filed every business day. 2. The taxpayer ultimately pays the price. Everyone pays an $800 tort tax in New York State. Add to this, immeasurable indirect costs, including lost jobs and higher prices. The City of New York paid almost $600 million taxpayer-dollars last year in litigation costs. Page 13 3. More money goes to attorneys and courts than to plaintiffs. Our tort system costs $14.3 billion a year. Less than a third, or $3.4 billion, goes toward paying actual economic damages. Another $6.57 billion covers pain and suffering awards, $4.3 billion pays the attorneys, and $3.4 billion administrative overhead. 4. New York s personal injury awards are over six times the national average. According to the New York Jury Verdict Research Service, New York s median compensatory awards are $275,000 compared with the national average of only $45,000. This figure shows just how far out of balance our liability system is when compared to the nation. 5. Contingency fees lead to lawsuit solicitation and outrageous awards. When lawyers garner onethird of awards, there is a huge incentive to sue for exorbitant amounts. No potential defendant with an ability to pay is safe from irresponsible attorneys who solicit plaintiffs through questionable advertising and ambulance chasing. 6. The state s civil justice system unfairly assigns blame and assesses damages. Under joint and several liability, a person only partly to blame can sometimes pay the full amount a jury awards, simply because of their ability to pay. 7. Frivolous lawsuits result in a reduction in consumer choices. Because of fears of liability, many enjoyable aspects of society like sleigh-riding and skating, public swimming pools and diving boards, horse-back riding, pick-your-own fruit farms, and even candid conversations with one s doctor and Pastor are becoming nostalgic icons of the past. 8. Financially motivated personal-injury lawyers lead opposition to reform. The primary source of opposition to reform is the well-funded trial lawyers lobby and their consumer organization front-groups. 9. Reform supporters hail from more than 100 trade and professional organizations. The New Yorkers for Civil Justice Reform is a coalition made up of 1,200 members, including more than 100 organizations representing small town leaders, doctors, farmers, and business people from the mom-and-pop variety to major employers. All pay a heavy price for operating in continued on next page Eastern Mutual 6504 State Route 32 P.O. Box 40 Greenville, NY 12083 Member of NYIA for over 50 years and we support Repeal of Section 240 of the Labor Law (strict liability). 182 Barnerville Road, PO Box 9, Cobleskill, NY 12043-0009 Since 1895 Proud Supporter of NYIA We Live in New York. We Work in New York We Insure New York.

Page 14 continued from previous page this highly litigious state. 10. Many competitor states are leading the way in tort reform. Some 30 states have reformed their legal system since 1996, including some of our key industrial competitors like Ohio, California, Illinois, New Jersey and Texas. An independent study shows that states that enact such reforms enjoy much higher levels of productivity and faster employment growth. Oppose wrongful death expansion... Conversely, NYIA opposes enacting other measures which would further erode the judicial system such as wrongful death or unfair claims. It is estimated that if New York expands wrongful death actions to include non-economic damages it would cost consumers over $1 billion. Current law fairly, objectively and properly compensates survivors for the loss of support, services or contributions of their loved one, and takes into consideration the four major categories of 1) earnings; 2) medical insurance coverage; 3) pension benefits and 4) household services. It would be impossible to quantify non-economic losses such as emotional loss, loss of love, society, comfort, advice, companionship, etc. In addition, NYIA opposes legislation which would provide a civil remedy or direct action against an insurance company for damages for violating the unfair claim settlement practices. If enacted unfair claims will be costly to the majority of New York policyholders and will actually slow down the payment of claims. The only beneficiaries to the proposed legislation will be members of the personal injury bar who make a living on contingency fee insurance claims. The New York State Insurance Department currently regulates and enforces the unfair claim settlement practices of all insurers doing business in New York. The Department imposes stiff fines and other various sanctions for companies which violate current unfair claim settlement procedures. A Milliman & Robertson study estimates that if enacted this legislation would increase automobile premiums 20%. As you know New York is second in the nation for the most expensive automobile insurance. Enacting this legislation guarantees that we will be number one. In fact, the effect across all lines of insurance is to increase premiums 17.2% or $2.9 billion in additional costs. If enacted, the effects of this legislation would be devastating to New York consumers. Reform of the current workers compensation system... Businesses complain that workers compensation costs are too high. Labor complains that the benefits to injured workers are too low. Could it be that both sides are right? If so, how can you reign in the costs and still provide more? For the insurance company standing in the middle, it really doesn t seem that hard to figure out. NYIA believes that reforming the workers compensation system is the key to the solution. We need to start spending smarter and trimming the fat from the program. New York has not adopted many of the cost-saving measures that other states have longago embraced. New York workers compensation costs are still more than 20% above the national average, so handing out a benefit increase without any reform will further stymie business and force companies to relocate out of state. Benefits for employees injured on the job haven t increased in over a decade, ranking New York below average. NYIA supports establishing time limits on awards for non-scheduled permanent partial disabilities (PPDs). These awards account for only 14% of claims, but 76% of workers compensation costs. New York places no limits and offers lifetime PPD awards. At least 41 other states limit the number of weeks a worker can receive PPDs the average limit is 481 weeks. In addition, New York s average claim for permanent partial disability awards is among the highest in the nation. Adopting objective medial guidelines to determine the degree of disability would ensure that medical providers evaluate similar cases using consistent criteria. New York has the second-highest average claim cost in the nation (second to Louisiana). Even though claims have gone down significantly in the past decade (40% reduction according to the Compensation Insurance Rating Board), employer costs are still out of control. We also support a ban to prevent double-dipping where individuals collect workers compensation even after they ve returned to work. Employees should only be able to collect monies while they are out of work. A comprehensive solution must be adopted to address the spiraling costs. The New York Insurance Association urges lawmakers to pass legislation this session to reform the workers compensation system. Preferred Mutual A Proud Supporter of New York Insurance Association Fulmont Mutual P.O. Box 487 Johnstown, New York 12095-0487 518-762-3171 A proud member of New York Insurance Association Preferred Mutual PREFERRED MUTUAL INSURANCE COMPANY We encourage the legislature to enact Security Fund Assesment Clarification and Disclosure. Your Regional since 1853 One Preferred Way New Berlin, NY 13411-1896 800.333.7642 www.pminsco.com Preferred Mutual... a tradition of excellence since 1896 Page 4

Breaking Down New York s Berlin Wall Before auto insurance companies in New York could lower the prices they charge, they had to fill out forms. Next they had to ask the state insurance department for permission to lower their prices. Then they waited for departmental approval to charge you less. You heard right, under New York s archaic regulatory system, insurers need to get the government s permission before they can reduce prices. Now ask yourself this question. When Wal-Mart wants to lower prices, which state agency must it ask? How about Starbucks, Ford, Jet Blue, the local hardware store? You get the picture. In every one of those industries government keeps its hands off the prices charged. We learned a long time ago that we as consumers are better served when companies compete for our business. This is not some radical economic experiment. The jury came back with the verdict more than a century ago. The truth of that proposition is now so self-evident, that they tore down the Berlin Wall, chopped up the old Soviet Union and eventually even embraced those principles in the old Red China. Earlier this year I met with the Deputy Minister of Finance for France and his colleague who serves as insurance industry regulator. France is notorious for its high level of government involvement in managing the country s economy. During our meeting I asked about the process used in France to approve insurance rates. The insurance regulator looked at me like I was speaking a foreign language. In a way I was, because you could argue that my French is a foreign language in Paris. But no! He understood my French. He just didn t understand my question. His response was a skeptical Why would the government approve insurance prices? Don t you have price competition? Now that s a legitimate question. Let s take a look. For gny auto experience...5x8 insurance there are 4/22/05 over a hundred 4/27/05 companies 10:00 AM trying Page 1 to get your business in New York. While there are some big ones, no company dominates. The markets for homeowners insurance and most business insurances are even more competitive. Still an insurance company must get a government OK to lower the prices they charge in certain instances. Workers Compensation Insurance? Total government price control! Medical Malpractice Insurance? Total government price control! But without price controls won t insurers raise their prices at will? Deregulation means that insurers will price their policies more accurately to the risks they insure. That kind of freedom encourages competition among insurers, attracting new ones to the market while current competitors expand their markets. Inevitably that will produce a more stable, competitive market that makes insurance more available and affordable for all. Allowing insurance companies including auto, workers compensation, business, homeowner, medical malpractice insurers to set their own rates will spur economic growth and draw business to New York. Insurance is no different than any other consumer purchase. Insurance companies are no different than any other type of business. Competition for the consumer dollar drives prices down. It does so more efficiently than any government agency. It s about time New York s insurance price setting system goes the way of the Berlin wall and the Soviet Union. New York consumers deserve the break. And what about the government price setters? Let s put them to work making sure that price competition doesn t lower insurance rates so much that insurance companies can t honor the promises they make. Even they will admit that s what they should be doing. Bernard N. Bourdeau, CAE NYIA President NYIA s 2005 Legislative & Regulatory Agenda SUPPORT... Page 15 Re-enactment of the auto flexrating statute Appropriate disclosure by brokers when a broker receives compensation from both the insured and the insurer Clarification regarding mold coverage and sub-limits Repeal of Section 240 of the Labor Law (strict liability for scaffolding) Proposals to deter auto no-fault fraud Legislation to prohibit transfer of sidewalk liability to abutting property owners Modernization of Auto Insurance Plan (assigned risk plan) Legislation to specify arson standard as one of motive and opportunity Uniform standards for filing civil action cases (file & serve) Security Fund assessment clarification & disclosure Standardization of workers compensation assessment & recoup formula Expansion of company-employed adjuster authority for affiliate companies ** Issues not listed in order of priority EXPERIENCE STABILITY & INTEGRITY GNY When it comes to the real estate market, GNY knows its business and yours. With over 90 years of experience and an A.M. Best Rating of A+ Excellent, GNY is the trusted industry leader you need to protect your client s most valuable assets. Additionally, for the fifth consecutive year, Ward Financial Group has named GNY one of the fifty best property/casualty companies in the United States. State Farm is a proud supporter of the New York Insurance Association Our superior claims handling enables us to control your client s insurance costs. 2 0 0 M A D I S O N AV E N U E, N E W Y O R K, N E W Y O R K 1 0 0 1 6 PHONE: 212-683-9700 FAX: 212-685-0826 www.gny.com Providing Insurance and Financial Services statefarm.com State Farm Home Offices: Bloomington, IL

Page 16 NYIA Member Companies A-Plus (ISO) Acadia Insurance Allegany Co-Op Insurance Co. American Association of Insurance Services American International Group, Inc. American Re- American Steamship Owners Mutual Protection and Indemnity Association, Inc. American Transit AON Re Inc. Armienti, DeBellis & Whiten, LLP Associated Mutual Insurance Cooperative Autoglass Broome Co-Operative Brotherhood Mutual Buffamante, Whipple & Buttafaro, PC Callicoon Co-Op CARCO Group Inc. Central Co-Operative Chautauqua Patrons ChoicePoint Clarendon National Claverack Cooperative Colonial Cooperative Commercial Mutual Community Mutual Countryway Demotech, Inc. Donovan Parry McDermott & Radzik Dryden Mutual Eastern Mutual Endurance Reinsurance Corporation of America Erie & Niagara Insurance Association Eveready Farm Family Casualty Farmer s Mutual Farmers Insurance Group Farmers Town Mutual Finger Lakes Fire and Casualty Company Fire Districts of New York Mutual, Inc. Fleming Consulting Co. Franklin Fire French & Rafter, LLP Fulmont Mutual Gallagher RE, Inc. GE Insurance Solutions General Reinsurance Genesee Patrons Cooperative GeoVest Advisors, Inc. Investment Management Greater New York Mutual Guard Financial Group Guy Carpenter & Company, Inc. Hereford Jaeckle Fleischmann & Mugel, LLP Johnson, Lauder & Savidge, LLP Leatherstocking Cooperative Livingston Mutual MacCartney MacCartney Kerrigan MacCartney Madison Mutual Magna Carta Companies Marcum & Kliegman LLP Merchants Insurance Group Meredith MFXchange US, Inc. Mid-Hudson Co-Operative Midrox Midstate Mutual Morrison Mahoney LLP Motor Vehicle Accident Indemnification Corporation MSO, Inc. Mutual Boiler Reinsurance Mutual Reinsurance Bureau National Insurance Crime Bureau (NICB) P utting The Local Community First. Since 1903, Utica First has remained actively involved in the community. We understand the needs of the local area and its people and have a long history of working together. For over 100 years, putting the community first has been what Utica First is all about. Personal and Commercial Coverages Through Your Independent Agent For more information contact us at: www.uticafirst.com Utica First Insurance is a proud Supporter of NYIA. Nationwide Insurance New York Compensation Rating Board Norfolk & Dedham Group North Country Ohrenstein & Brown, LLP Ontario Oswego County Mutual Otsego County Patrons Co-Op Pittstown Co-Operative Fire Preferred Mutual Progressive Casualty QBE Insurance Corporation Reinsurance Association of America (RAA) Reinsurance Business of Towers Perrin Rutgers Casualty Sauquoit Valley SCOR Reinsurance Company Security Mutual Smith Barney, Citigroup Global Markets Inc. State Farm Sterling Stroock & Stroock & Lavan LLP Subrogation Partners Swiss Re America The Jennings Group Tower of New York Underwriters Rating Board United Frontier Mutual UTC Risk Management Services, Inc. Utica First Utica Mutual Walton Cooperative Fire Insurance Co. Washington County Co-Op Wayne Cooperative Wiss & Company, LLP Page 6