A New York and New Jersey Lawyer Who Represents Policyholders and Beneficiaries in Life Insurance Denial Cases

A recent WSJ article highlighted a persistent problem that I have previously noted on this blog: universal life insurance policies that become unaffordable for insureds, lapse due to insufficient funds, and leave their estate planning in shreds.

The article is by Leslie Scism who writes about the industry for the Journal. Really, it should be required reading for anyone who either has a universal life policy or is thinking about purchasing one. Chances are, if you have been talking to a life insurance agent, he or she may have tried to sell you one of these products, heralding how it is the best of both worlds in that it provides a life insurance death benefit and has an investment component.

But while universal life policies do have their place, and are useful for some investors (usually those with a high net worth), they come with the peril that their costs can increase exponentially over time making them unaffordable, or at least non-worthwhile investments.

You can guess who wins in this scenario–yes, the insurance company. As always, read the fine print because you can bet the insurance company will rely on it later on.

United Policyholders and other pro-consumer groups have been advocating for the New York State Legislature to pass a bad faith bill that allows for insureds who are successful in litigation against their insurance companies based on a claim denial to recover attorney’s fees.

New York is one of the least insured-friendly states in the nation, and as a Newsday article points out, insurance companies have taken advantage of this fact to pay out less in claims comparatively to other states with stronger consumer protections built into their laws. One would hope that the controversies surrounding Hurricane Sandy payouts at the expense of homeowners will serve as the impetus for change.

The New York Times published a fascinating article about risky investments made by life insurance companies that can put their insureds, as well as taxpayers, at financial risk. The gist of the story is that life insurance companies are supposed to plunk their money–essentially, the premiums they receive–into rather dull, safe investments so that there is a guarantee they can pay death benefits when a claim is made. But that is not what is happening.

For instance, Athene did the opposite by investing in Caesar’s Casinos which was on the verge of bankruptcy. Actually, it was not Athene that made the investment, but its parent company Apollo Global Management, a large private equity firm. I know these characters – I litigated against them (and won) when they tried to cancel a client’s life insurance policy after he paid late when his mother passed away.¬† Anyway, the operating company that runs Caesar’s later went bankrupt. Investing in Caesar’s was not exactly the same as, say, investment-grade bonds.

The article is interesting because it sets forth the unsavory history of life insurance, such as “feeble, penniless old men” having to auction their policies to speculators so that they could survive, prompting a later reform that insurers must pay a surrender value to insureds with cash value policies. Reforms were enacted early in the 20th century, but now we see insurers become public companies and produce a vast, overwhelming array of products that are difficult to understand even more the seasoned life insurance adviser. Meanwhile, as insurers put their assets into more risky investments, state insurance regulators have more or less given the green light.

The latter half explores the complex world of captive insurance companies into which, through dizzying financial machinations and subterfuges, insurance companies create subsidiaries into which they funnel assets for tax and regulatory purposes. The books look different for insurers who create captives, but since the captive is under the control of the insurer, the risk remains the same.

Take a look, the article is well worth a read.

 

 

News of the Day

A couple interesting items that I saw in the news:

First, as Reuters reported, life insurance companies may start issuing applications that include questions about whether or not you engage in or intend to engage in space travel. Yep, I’m not making this up. Presently, most applications inquire if the applicant is a pilot or skydiver because these are considered to be inherently dangerous activities. This does not encompass space travel. But after the tragic Virgin crash, this may change so that space tourism becomes part of the question.

Next up is that the Rolling Stones are in court in London after its insurer denied payment for cancelled performances in Australia and New Zealand after Mick Jagger’s long-time girlfriend, ex-model and fashionista, L’Wren Scott, committed suicide. Perhaps you didn’t know, but famous performers are often heavily insured because so much is riding on their ability to complete their work and live up to their commitments. Think about it: if an actor dies part way through filming, it means that the film has been a total waste with millions of dollars down the drain.

The insurer is making a material misrepresentation claim that Scott’s mental and psychological history was not fully disclosed, thus allowing it to escape its payment obligation. This is called post-claim underwriting – when an insurance company does its underwriting not before, but after a claim is made. It is an unsavory and anti-consumer practice that, unfortunately, many courts give the green light to. I am currently trying to appeal this same issue to the New York Court of Appeals. If I am successful, you’ll surely be hearing about it on this blog.

We’ve all seen strange television commercials. One shown in the U.K. for Beagle Street Life Insurance Company takes the cake. It involves — and I’m not making this up — a Gremlin-type creature seemingly urinating on a middle-aged male insured in a bathtub.

Don’t believe me? You can see for yourself at this link.

I don’t know where the idea for the Gremlin came from. Maybe it’s derivative from the Geico Gecko. Anyway, the ad has been controversial in the U.K. as it has allegedly caused young children to suffer nightmares.

All I can say is that I’ve seen life insurance companies do worse — put it this way, some claim denials are so egregious that the policyholder or beneficiary would prefer to instead have a Gremlin pee on them.

 

 

 

Reuters reports that New York insurance regulator Benjamin Lawsky has launched an investigation into indexed universsal life insurance products. These are life insurance policies that invest the cash value in index funds such as the s&P 500.

The issue is with how the policies are marketed to the general public, as it is suspected that prospective customers are given illustrations that overstate performance. They probably sound a whole lot more attractive than a policy that invests more conservatively. Apparently, these types of policies are the fastest growing component of the life insurance industry.

Although not a life insurance salesman, I will comment from the perspective of a policyholder attorney – these types of policies may be appropriate and appealing to a certain market share who is willing to accept risk, but they may not be right for everyone. Many people expect a solid, dependable performance from their life insurance policy – meaning, that it will not sputter out before maturity due to a depletion of cash value, and that it will be there for their loved ones.

As always, life insurance applicants should carefully ask questions of their agents and, importantly, read the fine print.

Fox Business must have had a slow news day, because in a recent article it entertained the hypothetical question of whether a prison inmate can obtain a life insurance policy. Basically, the answer–to those who are curious, and you are quite likely few in number–is negative.

According to the article, 7 million Americans, or 2.9% of the adult U.S. population, are circulating in the criminal justice system. So the issue does affect a large number of people. But essentially all life insurance companies will not consider an application from a prison inmate. The reason why is pretty obvious: prison is a dangerous place, and many people in prison do not have safe lifestyles. Interestingly, there are some insurance companies who will offer policies to active-duty military personnel, even though they may also find themselves in harm’s way.

If you think about it, how would a life insurance company conduct a medical test on an applicant who is in prison? It’s probably not feasible for a paramedic or nurse to go to the prison and draw blood and take urine from a prisoner.

Not only is prison an unsafe place, which increases the mortality risk for a prisoner-applicant and makes them an unattractive risk, but there is the moral hazard issue. If someone is incarcerated for a serious crime like murder or child molestation, an insurer is probably not going to want to insure them based on their past actions and also that such a person will foreseeably run into various types of trouble whether in or out of prison.

All that said, if a person with an existing life insurance policy enters the prison system, he will get to keep his policy so long as the premiums are timely paid. Generally speaking, policies do not contain a clause invalidating them once a person enters prison.

Getting back to how insurers will offer policies to persons in the military, it presents an interesting issue because, as I pointed out, they also find themselves in unsafe environments. Similarly, life insurance companies will offer insurance to daredevils such as skydivers even though they put their lives on the line in a way most of us do not. It seems that with prisoners the key difference, in the eyes of life insurance companies, is the moral aspect, the uncertainty of prison life, and that prisoners are more likely to make enemies.

 

A few months ago, the NY Court of Appeals put the insurance industry into a tizzy by holding that if an insurer wrongly refuses to defend its insured in a lawsuit, it will later not be allowed to raise policy exclusions as a defense to providing coverage. More specifically, if the insurer refuses to hire lawyers to defend the insured, and a judgment is subsequently entered against the insured, the insurer will be responsible for satisfying it. The case was K2 Investment Group v. American Guarantee & Liability Insurance Company.

In a February 18, 2014 decision, the Court of Appeals reversed itself – something that happens very rarely. Now when an insurance company wrongly refuses to defend its insured, it can still raise a policy exclusion as a defense to its obligation to indemnify the insured and satisfy the judgment. You may ask, does that mean there aren’t any adverse consequences if the insurer wrongfully decides to leave its insured in the lurch? If you answered yes, you are correct.

The specific question in K2 that confronted the court was if the insured, who was both a lawyer and the principal of a company, committed acts that were covered under his lawyer’s professional liability insurance policy or instead were solely done in a business capacity. This was significant because his policy contained an exclusion for business activities. If the insured was acting as a lawyer, he would be covered; if he was acting on behalf of his business, he would not be, and hence an exclusion would apply.

In dissent, Judge Graffeo made a convincing argument that if the liability insurer breaches its duty to defend, it should not be allowed to subsequently invoke policy exclusions. Rather, it should have to satisfy the judgment entered against its insured. “This rule makes sense,” she wrote, because “[a]n insurer should be subjected to some legal consequence for breaching its duty to defend its insured.” This creates an incentive for the insurer to provide a defense in the liability case. Further, “[i]t also encourages the initiation of a declaratory judgment by an insurer that seeks judicial authorization to rely on a policy exclusion to avoid indemnification.” In other words, if the insurer seeks not to defend its insured in a lawsuit, there will be an incentive for it to first ask the court for permission to escape its obligations, instead of simply bailing on its insured.

Judge Graffeo, in my opinion, has it right. If an insurer takes such a bold and momentous step as to leave its insured on its own to defend a lawsuit, there should be consequences. It shouldn’t later be allowed to raise policy exclusions because that creates a double standard. The insured has suffered from the insurer’s refusal to defend, seeing that, at least in K2, a judgment has been entered against him. But the insurer is not in a disadvantaged position as it can argue for policy exclusions. In my view, the court had it right the first time.

 

The deadline for homeowners to submit their Hurricane Sandy flood insurance claims is 3 months away, landing on April 29, 2014.

The “Your Money” section of the New York Times contains a very informative article about the claims process that provides an overview from start to finish, that is, from filing a claim to perhaps even hiring an attorney to litigate.

No need repeating the points here: the article is concise and packed with information. The moral of the story is that the companies administering flood claims are frequently not doing right by their customers. And restrictive laws don’t give policyholders a meaningful remedy for bad-faith conduct.

Currently, we are in a period of low interest rates that is unprecedented in our nation’s economic history. That is, I think it’s unprecedented. I’m a lawyer, not an economist, so I don’t possess that type of financial knowledge and don’t know if that statement is really true.

I suppose I could fact-check it on google. Yeah, I could do that. But it’s Sunday night, the Patriots-Broncos game just started, Boardwalk Empire is on in a half hour, and my first priority is to complete this post, interest rate history be damned.

Anyway, let’s agree–interest rates are really, really low.

Consequently, cash-value life insurance policies are not performing well. Many that were sold in the back in the 80’s, 90’s, and early 2000’s are in danger of lapsing. This is because the cash value is earning a low interest rate. When the policies were sold years earlier, rates were high (remember that?) and so were the performance projections given at the time, since no one imagined rates would ever be so low.

I previously wrote a post entitled “The Exploding Universal Life Policy” that addresses this same issue of how low rates have impacted the performance of life insurance policies. Why am I doing it again, you might ask? My first response is that I don’t mind repeating myself. I don’t mind it in the least.

My second is that it is covered in an article I recently came across in Investment News, which discusses how these cash value or universal life insurance policies (for the purpose of this blog post, the two are basically the same) were used by estate planning attorneys to fund irrevocable life insurance trusts to help alleviate estate tax obligations.

According to the article, years ago “[e]ven the most conservative agents and brokers were projecting 7% to 10% long-term interest rates.” See the problem? Policyholders were told they could pay “x” each year to keep $”y” in coverage in effect. But then they found out that they needed to pay twice the amount of “x” to keep that same $”y” in coverage.

Unfortunately, I’ve seen more than my share of these cases…

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