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When the Insurance Industry Covets Our Rights – HuffPo

In 1995, a part-time actuary for the Alabama Insurance Department achieved what the insurance industry had been trying to accomplish in state legislatures nationwide for years. With the simple stroke of a pen, Alabama became the first state in the nation to approve “forced arbitration” clauses in insurance policies, abolishing policyholders’ rights go to court against insurance companies or insurance agents for payment of their claims – even if the agent stole the policyholder’s money.

Incredibly, this was done behind the back of then Alabama Insurance Commissioner Mickey DeBellis, who did not find out about the practice for two years. He told the Multinational Monitor magazine in 1998 that when he finally saw the clause, “It was one of the worst I’d ever seen in my life. It took every right away from the policyholder. I blew my top.”

Then,

DeBellis immediately placed a moratorium on approval of mandatory binding arbitration clauses, but was quickly overruled by his boss, Governor [Fob] James.

“I’m sure there was pressure put on him by insurance companies,” says DeBellis.

Governor James instructed DeBellis to start approving these clauses, while issuing arbitration guidelines for insurers.

Instead, after 25 years with the Alabama insurance department, DeBellis resigned.

“Everybody’s entitled to their day in court, and binding arbitration takes that day away from you,” says DeBellis. “I did not feel it was in the best interest of the consumers in this state.”

To say the least. In forced arbitration systems, access to the courthouse door is blocked and all disputes must be resolved privately and secretly by the arbitration company chosen by the insurer. Arbitrators are not required to have any legal training. They may be biased. The discovery process, whereby parties obtain information from one another, is extremely limited. Arbitrators issue no written legal opinions, so no legal precedents or rules for future conduct can be established. And there is no right to appeal even though the arbitrator’s decision may be legally incorrect.

The Alabama arbitration rule was challenged in court and the late actor Christopher Reeve, who had been paralyzed in a horse-riding accident, filed an amicus brief. He said,

“One of the hardest things I have had to do since my disability is to deal with insurance companies. I found them to be callous and to try to set up any roadblocks they can to keep from paying legitimate claims. … I am totally against binding, mandatory arbitration in insurance policies.”

The attorney for those challenging the rule, Jere Beasley, eventually dismissed his lawsuit because, as he told me, the Alabama insurance department stopped approving arbitration clauses. Consumer advocates breathed a sigh of relief. But now, two decades later, consumer groups are “sounding the alarms” once again. This time, the focus is Texas.

The Texas Department of Insurance (TDI), which has long adhered to a policy of rejecting forced arbitration clauses in insurance policies, is thinking about changing its mind. Specifically, insurer Texas Farm Bureau has asked permission to stick forced arbitration clauses in homeowners policies, which homeowners must maintain as a condition of their mortgage. This particular proposal would include provisions that violate consumer protections found in other Texas laws and would impose a gag order on the arbitrator and both parties. Houston Chronicle business columnist, Chris Tomlinson, wrote,

The biggest problem with the Farm Bureau’s proposal is secrecy. That means no precedent-setting cases. Every consumer must start from scratch, work independently and possibly achieve wildly varying results. Consumers are also severely limited in what information they can request from the company during arbitration.

According to Alex Winslow, whose consumer group Texas Watch has been the leading voice against this proposal,

“What the Farm Bureau is asking … is to take disputes about insurance claims out of court, and push them into private, secret, arbitration proceedings where the industry has rigged the rules of the game…. This is just the latest in a long line of efforts to make it harder for people to get what they’re owed under the terms of their policy.”

The other real danger, notes Tomlinson, is that “Texas could set a national precedent in the coming weeks that would damage the rights of homeowners across the country.” He writes,

The Farm Bureau insists that its proposed clause is for its use only and will be optional. But if Mattax, who was appointed by Gov. Greg Abbott, approves the Farm Bureau’s clause, there is no reason why every home insurer in the state wouldn’t adopt it….

Once a precedent was set in Texas, the insurance companies would work to implement the clause in other states and in other lines of personal insurance, including auto.

This is why so many national consumer rights organizations have sent letters andcomments to the TDI asking it to reject the Farm Bureau’s request. One letter, signed by 11 national groups, concluded,

We understand that for many years, your agency has maintained a policy of rejecting form and endorsement changes that include pre-dispute binding arbitration. We encourage you to maintain that policy and reject this proposal in order to protect policyholders both in Texas and across our nation.

The right to trial by jury in civil cases is a fundamental right preserved in the 7th Amendment to the U.S. Constitution. Let’s hope TDI doesn’t give the insurance industry the power to obliterate it.

Red Cross Safety Tips For The 4th of July Holiday

It’s time for Fourth of July celebrations – fireworks, a backyard barbecue, maybe a trip to the beach. Whatever people have planned, the American Red Cross wants them to enjoy their holiday and has steps they can follow to be safe.

“We want everyone to have a great holiday, and a safe one,” said Alison Bono, Central and Northern Michigan Regional Director of Communication. “Whether the weekend will involve fireworks, grilling or going to the seashore, we have safety tips everyone can follow.”

FIREWORKS SAFETY The safest way to enjoy fireworks is to attend a public fireworks show put on by professionals. Stay at least 500 feet away from the show. Many states outlaw most fireworks. If someone is setting fireworks off at home, they should follow these safety steps:

 

  • Never give fireworks to small children, and always follow the instructions on the packaging.
  • Keep a supply of water close by as a precaution.
  • Make sure the person lighting fireworks always wears eye protection.
  • Light only one firework at a time and never attempt to relight “a dud.”
  • Store fireworks in a cool, dry place away from children and pets.
  • Never throw or point a firework toward people, animals, vehicles, structures or flammable materials.
  • Leave any area immediately where untrained amateurs are using fireworks.

 

GRILLING SAFETY Every year people in this country are injured while using backyard charcoal or gas grills. Follow these steps to safely cook up treats for the backyard barbecue:

 

  • Always supervise a barbecue grill when in use.
  • Never grill indoors – not in your house, camper, tent, or any enclosed area.
  • Make sure everyone, including the pets, stays away from the grill.
  • Keep the grill out in the open, away from the house, the deck, tree branches, or anything that could catch fire.
  • Use the long-handled tools especially made for cooking on the grill to keep the chef safe.
  • Never add charcoal starter fluid when coals have already been ignited.
  • Always follow the manufacturer’s instructions when using grills.

 

BEACH SAFETY If someone’s visit to the shore includes swimming in the ocean, they should learn how to swim in the surf and only swim at a lifeguarded beach, within the designated swimming area. Obey all instructions and orders from lifeguards. Other safety tips include:

 

  • Keep alert for local weather conditions. Check to see if any warning signs or flags are posted.
  • Swim sober and always swim with a buddy.
  • Have young children and inexperienced swimmers wear a Coast Guard-approved life jacket.
  • Protect the neck – don’t dive headfirst. Walk carefully into open waters.
  • Keep a close eye and constant attention on children and adults while at the beach. Wave action can cause someone to lose their footing, even in shallow water.
  • Watch out for aquatic life. Water plants and animals may be dangerous. Avoid patches of plants and leave animals alone.

 

RIP CURRENTS Rip currents are responsible for deaths on our nation’s beaches every year, and for most of the rescues performed by lifeguards. Any beach with breaking waves may have rip currents. Be aware of the danger of rip currents and remember the following:

 

  • If someone is caught in a rip current, swim parallel to the shore until out of the current. Once free, they should turn and swim toward shore. If they can’t swim to the shore, they should float or tread water until free of the rip current and then head toward shore.
  • Stay at least 100 feet away from piers and jetties. Permanent rip currents often exist near these structures.

 

Additional water safety tips are available at redcross.org/watersafetytips

SUN PROTECTION Limit exposure to direct sunlight between 10 a.m. and 4 p.m., and wear a broad-spectrum sunscreen with a protection factor of at least 15. Reapply sunscreen often. Remember to drink plenty of water regularly, even if not thirsty. Avoid drinks with alcohol or caffeine in them. Protect the eyes by wearing sunglasses that will absorb 100 percent of UV sunlight. Protect the feet – the sand can burn them and glass and other sharp objects can cut them.

During hot weather, watch for signs of heat stroke—hot, red skin; changes in consciousness; rapid, weak pulse; rapid, shallow breathing. If it’s suspected someone is suffering from heat stroke:

 

  • Call 9-1-1 and move the person to a cooler place.
  • Quickly cool the body by applying cool, wet cloths or towels to the skin (or misting it with water) and fanning the person.
  • Watch for signs of breathing problems and make sure the airway is clear. Keep the person lying down.

 

 

 

 

Source: Red Cross Issues Safety Tips For 4th of July Holiday

What Is Forced Arbitration?

Texas Watch produced this great video explaining how arbitration hurts consumers and robs people of their day in court. While this pertains to Texas, forced arbitration has the same result anywhere in America. You have a right to a day in court, not to be forced into a biased arbitration system.

Myth Busting: Medical Malpractice Claims

MedMal Filings Down

Appeals panel: Dad can press lawsuit vs NIU fraternity over son’s hazing death 

An Illinois appeals court will allow a father whose son died after drinking too much alcohol during a fraternity’s initiation ritual, to resume his lawsuit against the Northern Illinois University fraternity, saying a Cook County judge erred in dismissing the wrongful death action against the local chapter and its leaders.

The Illinois First District Appellate Court took up the appeal of Gary L. Bogenberger, administrator of the estate of his son, David, who became drunk to the point of unconsciousness during a November 2012 event at the Eta Nu chapter of Pi Kappa Alpha at Northern Illinois University in DeKalb, and subsequently died.

Source: Appeals panel: Dad can press lawsuit vs NIU fraternity chapter over son’s alcohol hazing death | Cook County Record

PCBs & Chemical Safety: Chemical Safety Bill Could Help Protect Monsanto Against Legal Claims

Yesterday a jury in St. Louis, MO awarded $17.5 million in damages to three plaintiffs and assessed $29 million more in punitive damages against Monsanto and three other companies in a suit here alleging negligence in the production of PCBs.

Despite this verdict on behalf of injured plaintiffs, chemical safety in America is on precarious ground. A new version of the Toxic Substances Control Act has passed both the House and Senate. While the new bill would be, by most measures,  a major improvement over the 40 year old existing TSCA, there is one glaring exception. PCBs. Polychlorinated biphenyls. PCBs are used to make everything from fluorescent lighting, to plastics, caulking and oil-based paints. Until it stopped production in 1977, Monsanto was the source of 99% of the polychlorinated biphenyls  used by U.S. industry.

PCBs have been demonstrated to cause cancer, as well as a variety of other adverse health effects on the immune system, reproductive system, nervous system, and endocrine system. These problems may not affect Monsanto however. The New York Times notes:

Facing hundreds of millions of dollars in lawsuits, the giant biotechnology company Monsanto last year received a legislative gift from the House of Representatives, a one-paragraph addition to a sweeping chemical safety bill that could help shield it from legal liability for a toxic chemical only it made.

Monsanto insists it did not ask for the addition. House aides deny it is a gift at all. But the provision would benefit the only manufacturer in the United States of now-banned polychlorinated biphenyls, chemicals known as PCBs, a mainstay of Monsanto sales for decades. The PCB provision is one of several sticking points that negotiators must finesse before Congress can pass a law to revamp the way thousands of chemicals are regulated in the United States.

Source: Chemical Safety Bill Could Help Protect Monsanto Against Legal Claims – The New York Times

Forced Binding Arbitration & Access to Justice

Imagine you sign a contract for a cell phone. You agree to pay $50 per month. At the end of the month you get your bill and it’s $200 instead of the agreed upon amount. Now, imagine you’re one of 10,000 customers that the phone company has done this to. You meet with a lawyer, you form a class and sue the phone company. A class action lawsuit is born.

Not so fast, says the phone company, you signed a contract. In the contract is an arbitration agreement. We can’t go to court, we must go to arbitration. And, by the way, there are no class actions in arbitration. You must proceed on your own. If you lose, you pay for your own legal fee plus the fees of the phone company. Sound fair?

The New York Times has published a three part series about forced arbitration clauses in consumer contracts. These clauses, slipped into contracts ranging from cell phones to nursing, strip a consumer from their ability to sue or form a class action. Instead, consumers are forced to arbitrate their cases.

I’ve written before about the dangers of forced arbitration. (See Class Dismissed: Concepcion and the End of Class Arbitration). Over the last few years, as the New York Times reports “it has become increasingly difficult to apply for a credit card, use a cellphone, get cable or Internet service, or shop online without agreeing to private arbitration. The same applies to getting a job, renting a car or placing a relative in a nursing home.”

Corporations are increasingly filing – and winning – legal motions to force plaintiffs in federal class actions out of the courts and into private arbitration hearings. In arbitration, plaintiffs must pursue claims as individuals and in private proceedings. The problem is that most damages are very low, often less than $100, while legal fees remain sky high. The Economic Policy Institute Explains:

Giving up the constitutionally protected right to sue in state or federal court is a big deal and is often the result of ignorance and deceit: millions of people have no idea the clauses are there in the fine print of contract provisions written in legalese that few individuals ever read or comprehend. They don’t find out they’ve lost their rights until they need them.

Individuals give up not just their right to go to court but all protections regarding the venue of any hearing their claim will receive (for example, the agreement might require arbitration in a city a thousand miles away). They might give up certain remedies and the right to appeal even if the arbitrator gets the law completely wrong, and give up the essential right to join with other victims to file a class action, especially important when each claim is small and no single individual could rationally pay to hire a lawyer and bring a lawsuit for such a small sum.

The myth is that arbitration is preferable because it allows individuals to resolve their grievances easily, quickly, and cheaply. In fact, arbitration can be more expensive for a plaintiff than a civil suit because instead of a small filing fee in court, the plaintiff will have to pay half of the arbitrator’s fee, or sometimes all of it if the arbitration clause includes a “loser pays” provision. Legal fees can be ruinous, and the Times story relates the case of a woman who owes $200,000 in attorney fees after losing a case in which her former employer allegedly destroyed evidence.

With businesses using forced arbitration, consumers are unwittingly giving up their right to sue in a traditional forum – the court room. As was the case in AT&T v. Concepcion. In AT&T v. Concepcion, customers said the company had promised them a free phone if they signed up for service, and then, when they didn’t get the free phone, charged them $30.22 for it anyway. While these damages may seem trivial, multiplied by the number of consumers affected, the damages would be significant as a class.

Forced to arbitrate as an individual over the $30 fee, the costs of arbitration and the risks of losing and paying legal fees for both sides, outweigh the benefits of proceeding through the process and remedying the wrong.

The costs associated with arbitration are too high and the risks too great for consumers to proceed and get the justice they deserve. For example, the data on consumer arbitration obtained by The Times shows that Sprint, a company with more than 57 million subscribers, faced only six arbitrations between 2010 and 2014.

Forced arbitration clauses are just another tool to prevent access to the courts and whittle away the rights of consumers.

via Forced binding arbitration robs workers and consumers of basic rights | Economic Policy Institute.

See also Arbitration Everywhere, Stacking the Deck of Justice – The New York Times.

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