Roadmap to Recovery Surveys

by United Policyholders

Our purpose is to collect data from disaster survivors on insurance claims and recovery progress at various intervals; identify coverage issues, individual and common problems and solutions, assess the pace of recovery and the claims handling performance of the various insurers in the region. 

The Regulation of Insurance Claim Practices

By Professor Jay M. Feinman, Rutgers Law School Center for Risk and Responsibility

Insurance claim practices determine the extent to which insurers will or will not honor their promises. This Article describes the failure in the market for claim practices, the failure of the regulatory responses to that failure, and the ways in which litigation can provide a partial corrective. The Article explains why the market fails to guarantee fair claim practices, how market forces might be improved, and why, even with improvements, market forces alone are not enough. It then describes claim practices regulation by state insurance departments, argues that regulation in most cases is insufficient, and suggests improvements in state regulation. Finally, the Article concludes that private litigation, in addition to redressing individual harm, serves a necessary regulatory function in promoting fair claim practices, and it describes the substantive law and processes that are needed to perform that function

Memo on Matching and Uniform Appearance Rules in Various States

By Professor Jay M. Feinman, Rutgers Law School Center for Risk and Responsibility

UP partnered with Rutgers University Law School Professor and advisor Jay M. Feinman to research how different states treat the issue of matching and uniform appearance under a replacement cost policy. In many cases, a policyholder will suffer damage to a part of their home that cannot be "spot" repaired. For example, if a roof or siding is partially damaged and the damage cannot be repaired in a manner that constitutes uniform appearance, the insurance company should pay to replace even the undamaged portion of the property. However, this is not always (or often) the case. Many policyholders end up with patchwork repairs that lower the value of their home. This survey/memo was intended to show the differing approaches to state regulators, legislators, and courts have taken to address this common claim issue. 

The American Law Institute's Restatement of the Law of Liability Insurance: Selected Comments from the Policyholder Perspective

By: Lorie S. Masters, Amy Bach, and Dan Wade

As the ALI (a group of law professors and lawyers who make treatises on various areas law for use in law schools and for judges) considers the rules governing the insurer-insured relationship, UP and advisor Lorie S. Masters of Perkins Coie offered their perspectives for Lexis Nexis. Topics discussed in the paper include contract interpretation, the duty to defend, the duty settle, fraud, and misrepresentation. UP and Masters stressed the importance of treating insurance policies as different from other contracts because they involve certain equities, including piece of mind and economic security for which an insurance policy is purchased. (Fall 2015)


(You've got to) fight for your right (to independent counsel). Who's defending who?

By: Amy Bach and Dan Wade

The above-titled article appeared in the Fall 2015 edition of the the American Association for Justice Insurance Law Section's Newsletter. The article explores “tripartite” relationship, when an insured may be entitled to independent counsel, both in the scenario where an insurer defends despite possible coverage issues and where an insurer must defend multiple insureds under the same policy, with emphasis on California's Cumis rule. (Fall 2015)


Downpour or Downfall? ACC Clauses are Raining on Coverage

By: Amy Bach and Dan Wade

The above-titled article appeared in the Spring 2015 edition of the American Bar Association's Property Insurance Law Committee's newsletter. In the article, Bach and Wade explore the history of anti-concurrent causation clauses ("ACC") in residential insurance policies and the effect they have on coverage for loss or damage involving multiple combined perils (e.g., wind and water in a hurricane). Bach and Wade discuss alternatives to the ACC and important pending litigation. A version of the article entitled: Anti-Concurrent Clauses: Exclusion Causing Much Confusion previously appeared in the American Association for Justice Insurance Law Section's WInter 2015 Newsletter (Winter-Spring 2015)


Homeowners Insurance in New York

by United Policyholders

This report shows that as insurers make outsized profits, policyholders in New York have little legal recourse to challenge unfair claim settlement practices. Insurers profits from the sale of homeowners insurance in New York have been much greater than the rest of the nation, even in the aftermath of devastating property damage from recent weather events. Yet the customers who pay the premiums that generate those profits in New York remain disenfranchised. Unlike the residents of almost every other state, New York policyholders are virtually powerless to use the legal system to recover in full from a recalcitrant insurance company unless they’re wealthy enough to pay a lawyer by the hour. These findings come from United Policyholders’ review of two key indicators of insurance company profitability published in the annual Profitability Report of the National Association of Insurance Commissioners, and our work with disaster survivors in New York.  (June 2015)


50 State Survey of Bad Faith Laws and Remedies

by United Policyholders and Jay M. Feinman, Distinguished Professor of Law, Rutgers-Camden

Survey of policyholder rights and remedies for tortious breach of an insurance contract in all 50 states. Excerpt: "The legal protections and remedies available to insureds that are harmed by unreasonable conduct by insurers vary widely from state to state. This UP report surveys the law in all 50 states that defines rules that apply to insurers’ claim practices and the available remedies for when these rules are violated." (October 2014)


Best Practices for Post-Disaster Insurance Claim Mediation Programs

by Oliver Barry and Abraham Tran with assistance from Amy Bach, Prof. Jay Feinman and Doug DeVries with Judicate West.

This report examines past efforts and best practices in mediation and outlines a model for state-run post-disaster mediation programs. This includes a plan for a Model Mediation Program that will allow for the rapid resolution of a large number of property claim disputes, while balancing the potential needs of individuals and commuities harmed by large-scale disasters against the cost of such a program and the interests of insurers. (December 2012)

UP Executive Director Amy bach lectures before the American Bar Association Tort Trial and Insurance Practice section on post-diaster mediation programs. View slides here.

American Arbitration Association Storm Sandy Mediation Program for New York and New Jersey. View link here. View related UP blog here. View UP Guide here.


Amicus Project Report: Twenty Years Protecting, Defending and Advancing Policyholders Rights

by United Policyholders

The United Policyholders Amicus Project helps preserve and enforce insurance promises – large and small – because lives and livelihoods depend on them. In state and federal appellate courts and in the nation’s highest court, we advocate for insureds on the full range of issues. This report contains, in chronological order, the United Policyholders Amicus Curiae Briefs filed between 1992 and the publication of this report.  (July 2011)


Implementing the Affordable Care Act's Insurance Reforms: Consumer Recommendations for Regulators and Lawmakers

by various National Association of Insurance Commissioners consumer representatives including United Policyholders

These materials were prepared to assist regulators, lawmakers, and the National Association of Insurance Commissioners (NAIC) during ongoing implementation of the comprehensive insurance reforms called for by the Patient Protection and Affordable Care Act of 2010 (ACA). The purpose of these recommendations is to convey the perspectives of consumer advocates on appropriate standards and guidelines for implementing these reforms, which will go into effect in 2014. (August 2012)


The Truth about Car Insurance

by Consumer Union, published in Consumer Reports

The way insurers set prices is shrouded in secrecy and rife with inequities.  Consumers Union studied more than 2 billion price quotes to understand the factors that raise rates.  This report discusses that research and what you can do to keep yours low. (Septmember, 2015)


Transportation Network Company Insurance Principles for Legislators and Regulators

by National Association of Insurance Commissions, Sharing Economy Working Group

Addresses the insurance coverage gaps associated with ridesharing services offered by Transportation Network Companies (TNCs) such as Sidecar, Lyft and Uber. The white paper was issued to assist state insurance regulators and state legislators throughout the United States who are considering how best to address insurance coverage gaps associated with TNCs and ridesharing. Legislation is pending in at least 35 states. (2015)


50 State Summary of Midterm Cancellation Rules

by Wells Media Group (via Insurance Journal)

50-state summary of mid-term cancellation rules for auto, commercial, business, and other personal lines insurance policies. (2014)


Repeat Offenders: How the Insurance Industry Manufactures Crises and Harms America

by J. Robert Hunter, Joanne Doroshow, Americans for Insurance Reform, Center for Justice and Democracy at New York Law School

"Imagine an industry that sold a product which every person and business in America needed.  This product was so important that the industry could literally threaten the economy of a state by pulling its product out.  The seller of this product was accountable to no federal agency and regulated only by very weak state agencies.  It was also exempt from anti-trust laws so the entire industry, including so-called “competitors,” could use the same collusive pricing agencies to help determine the product’s price – price fixing that would land others in jail.  Other laws permitted it to keep its financial data secret, enabling it to routinely mislead lawmakers, regulators and members of the media about its financial condition.  This secrecy allowed it to create phony “crises” to help promote its own legislative agenda, padding its bottom line at the expense of everyday Americans." (2011)


Insurance Law as Public Interest Law

by Professor Shauhin A. Talesh, University of California, Irvine School of Law

Legal Studies Research Paper Series No. 2013-81 (2013)


Catastrophe Economics: The National Flood Insurance Program

by Professor Erwann O. Michel-Kerjan, Wharton School of the University of Pennsylvania

History of the NFIP, challenges, and solutions. (Fall 2010)


Punitive Damages Against an Insurer for the Bad-Faith Handling of a First-Party Claim

by D. Duff McKee, J.D.

A categorical list of articles and case studies related to punitive damages against an insurer for the bad faith handling of a first party claim.  (updated February 2013)


Low Ball: An Insider’s Look at How Some Insurers Can Manipulate Computerized Systems to Broadly Underpay Injury Claims

by Mark Romano, Director of Insurance Claims Projects and J. Robert Hunter, Director of Insurance

The primary objective of this report is to inform regulators about the technical complexity of this topic and the need to exercise better oversight regarding how these systems can be manipulated to the detriment of consumers. (June 2012)


Revictimization of Personal Injury Victims by ERISA Subrogation

by Professor Roger Baron, University of South Dakota School of Law

Subrogation on personal injury claims by a health insurer was universally prohibited by law when Congress enacted ERISA in 1974.  Seizing upon the notion of ERISA preemption, ERISA plans and related insurers have manufactured the right of reimbursement (or subrogation) without regard to the impact on the victims.  The unique history of this phenomenon and the need for judicial oversight are addressed in this article.  The recent decision by the 3rd Circuit in US Airways v. McCutchen is highlighted as providing a solid basis for other federal courts to follow.  The citation to the article is Roger M. Baron and Anthony P. Lamb, The Revictimization of Personal Injury Victims by ERISA Subrogation Claims, 45 Creighton Law Review 325 (March 2012).


The Insurance Industry’s Incredible Disappearing Weather Catastrophe Risk

by J. Robert Hunter, Director of Insurance, Consumer Federation of America

How Insurers Have Shifted Risk And Costs Associated With Weather Catastrophes To Consumers And Taxpayers (February 2012)


Reevaluating Standardized Insurance Policies

by Professor Daniel Schwarcz, University of Minnesota Law School

This important research shows that homeowners insurance policies now vary significantly in what they cover and what they exclude, yet even sophisticated consumers cannot access sample policies to comparison shop the variations before buying.  United Policyholders is working closely with the author to pursue regulatory and legislative changes warranted by his findings. (April 2011)


Credit Scoring in Insurance - An Unfair Practice

by Birny Birnbaum, Center for Economic Justice

Editing by UP Staff and members of the UP Agent/Broker Advisory Board.
For more information on credit scoring, check out the web sites of the Center for Economic Justice and the National Association of Insurance Commissioners. (January 2011)


Here Today-Here Tomorrow: The Road to Earthquake Resilience in San Francisco

by Community Action Plan for Seismic Safety (CAPSS)

Through a series of four major reports, the CAPSS project studied the most pressing earthquake risks facing the City and recommended seventeen important actions that San Francisco’s City government leaders should take now to reduce the consequences of future earthquakes.  For more information and additional reports from CAPSS, visit www.sfcapss.org. (December 2010)


The Tragedies of ERISA's Unintended Preemption of State Law Remedies

by Arnold R. Levinson, Pillsbury & Levinson, LLP (now Levinson Mediation)

This paper explains how ERISA eliminated the standard remedies available under state law, and replaced them with inadequate remedies. It then offers proposed remedies and suggested legislation  (March 2009)


The Make Whole Doctorine In All 50 States

by Matthiesen, Wickert & Leher, S.C.

This report is a compilation of summaries of the law in all 50 states with regard to the made whole doctrine and its applicability to subrogation generally. (November 2008)


The Ten Worst Insurance Companies in America

by American Association for Justice

How They Raise Premiums, Deny Claims, and Refuse Insurance to Those Who Need It Most (December 2011)


California's Use it and Lose It Problem

by Aaron Motschenbacher, Law Student at Santa Clara University, Amy Bach, Esq., Executive Director

Insurers' increasing use of CLUE and other claims history databases has resulted in a large number of California homeowner's facing non-renewal or cancellation of their insurance. This article examines the regulatory landscape and possible solutions. (October 2007)


Spotlight on Justice: Industry Insiders Long Ago Admitted - Tort Reform Will Not Lower Insurance Rates

by Center for Justice and Democracy at New York Law School

An older but still relevant expose on whether so-called "tort reform" (eliminating access to justice and remedies) will lead to decreased insurance premiums. (2003)


Demonstrating and Preserving the Deterrent Effect of Punitive Damages in Insurance Bad Faith Cases

by Harvey R. Levine (Universitty of San Diego School of Law)

Older article from the University of San Francisco Law Review discussing punitive damages and deterrence in insurance bad faith cases (13 U.S.F.L 613 1978-1979).