Insurance Circular Letter No. 11 (2019)
September 12, 2019
| TO: | All Authorized Property/Casualty Insurers, Licensed Insurance Producers, Adjusters, and Reinsurers |
| RE: | New York State Child Victims Act and Related Insurance |
STATUTORY AND REGULATORY REFERENCES: N.Y. Financial Servs. Law; N.Y. Ins. Law §§ 1303, 2110 and 2601; 11 NYCRR Parts 216 (Insurance Regulation 64) and 243 (Insurance Regulation 152); Chapter 11 of the Laws of 2019.
I. Purpose
The purpose of this circular letter is to inform all authorized property/casualty insurers, licensed insurance producers, adjusters, and reinsurers (collectively, “Addressees”) that the Department of Financial Services (“Department”) expects Addressees to cooperate fully with the intent of the Child Victims Act (“CVA”).
II. Discussion
Governor Andrew M. Cuomo signed the CVA into law on February 14, 2019 as Chapter 11 of the Laws of 2019. Among other things, the CVA extended the time for victims of sexual abuse to commence a civil action and reopened previously time-barred legal claims for a one-year window beginning August 14, 2019. Victims may sue or employ alternative dispute resolution methods to pursue legal claims against alleged perpetrators, the organizations that employed the alleged perpetrators at the time of the acts, and other persons or organizations that may have responsibility for the acts or liability for the harm done (collectively, “potential defendants”).
All of the Addressees that issued policies to potential defendants (hereinafter “Insurers”) are therefore on notice that legal claims may arise for which Insurers may have liability under those policies. Additionally, over time, some Insurers have been acquired by, or merged into, other companies. In such cases, the successors-in-interest to the Insurers that issued the policies with such exposures may have assumed such liabilities and are similarly on notice. Addressees who assumed business from such Insurers similarly should assess their exposures and act in good faith to address their liabilities, as should retrocessionaires.
The Department expects Addressees to cooperate fully with the intent of the CVA. This includes when insurance coverage applies to CVA-related claims. The CVA highlights the importance of victims’ claims being timely reviewed by courts, alternative dispute resolution entities, or other tribunals, to reach appropriate resolutions and provide remedial benefits to victims.
Accordingly, the Department encourages all Addressees with potential exposure to CVA-related legal claims to act promptly and in utmost good faith and to exercise best practices with their prior and current policyholders, and their respective claimants, including properly performing any and all duties to defend CVA-related claims.
Further, in the case of lost policies, the Department encourages all Addressees with relevant records to act in utmost good faith to preserve and provide any relevant records to policyholders and other entitled persons, whether in connection with any lawful discovery process or otherwise.
Certain minimum standards set by the New York State Insurance Law (“Insurance Law”) and accompanying regulations that are generally applicable to Insurers are set forth below, the violation of which may result in fines or other disciplinary actions, but this Department encourages Insurers to do more than the minimum required. Similarly, all other addressees should be mindful of their obligations under the Insurance Law, including without limitation Insurance Law Article 21 and related regulations, and strive to do more than the minimum required. For example, Section 2110 of the Insurance Law provides that those licensed under Article 21 may have their licenses suspended or revoked, including, without limitation, on the grounds that such licensees intentionally misrepresented the terms of an actual or proposed insurance contract or demonstrated untrustworthiness.
III. Fair Claims Practices
Pursuant to § 216.0 of 11 NYCRR Part 216 (Insurance Regulation 64), Insurers are required to comply with the following principles when handling CVA-related insurance claims:
- Have as your basic goal the prompt and fair settlement of all claims.
- Assist the claimant in the processing of a claim.
- Do not demand verification of facts unless there are good reasons to do so. When verification of facts is necessary, it should be done as expeditiously as possible.
- Clearly inform the claimant of the insurer's position regarding any disputed matter.
- Respond promptly, when response is indicated, to all communications from insureds, claimants, attorneys, and any other interested persons.
There are also strict time limits for Insurers to respond to communications from policyholders, to commence investigations, to notify policyholders of coverage decisions, and to respond to inquiries from the Department. See, e.g., 11 NYCRR § 216.4.
In the case of CVA-related insurance claims, the Department encourages Addressees to act in utmost good faith and to take the initiative to be cooperative so that victims may be compensated, including that Addressees should:
- act promptly, not extending unnecessarily to the maximum time periods permissible;
- exert diligence to seek out copies of relevant policies of current and prior policyholders that the addressee knows or has reason to know may be subject to CVA-related legal claims;
- fairly review such policies, interpreting such contracts so as to resolve any ambiguities in the policyholders’ favor;
- assess the applicable coverage, including any applicable exclusions or other limitations;
- affirmatively contact the relevant policyholders with such assessments promptly (even before a claim is filed, whenever possible) to assist policyholders in considering their coverage, such that the addressee and policyholders can cooperate in addressing complaints as they are filed; and
- perform on its duties to defend policyholders.
IV. Unfair Claims Practices
In addition to the affirmative duties set forth above, Insurance Law § 2601 and Insurance Regulation 64 both prohibit Insurers from engaging in unfair claims settlement practices; the Department may subject an Insurer to disciplinary action if it engages in such actions without just cause and with such frequency as to indicate a general business practice. See, e.g., Insurance Law § 2601(a); 11 NYCRR Part 216. Examples of unfair claims practices include, but are not limited to:
- knowingly misrepresenting to insurance claimants pertinent facts or policy provisions relating to the coverage at issue; and
- not attempting in good faith to effectuate prompt, fair and equitable settlements of insurance claims submitted in which liability has become reasonably clear.
V. Records
The Department reminds Addressees of their legal obligation to maintain records relevant to policies and related legal claims. For CVA-related legal claims that were previously time-barred, the Department encourages Addressees and any other parties with potentially relevant records to maintain ALL such records until the full resolution of such legal claims. Certain minimum records retention requirements are noted below.
Insurance Regulation 152 provides, among other things, that except as otherwise required by law or regulation, each Insurer shall maintain a policy record (the details to reconstruct any policy it issued or an actual copy) until the later of: (a) six calendar years after the date the policy is no longer in force; or (b) until after the filing of the report on examination in which the record was subject to review. 11 NYCRR § 243.2(b). For producer Addressees, the Department has previously issued guidance that they should maintain records at least until the expiration of the applicable statute(s) of limitations, and where an action or claim is pending, for such period of time until the matter is resolved. Office of General Counsel Opinion No. 07-05-13 (May 23, 2007). For CVA-related claims, the CVA revised the applicable statute of limitations, which has the effect of extending the applicable records retention requirements for producer Addressees.
For potential pending litigation, such as lawsuits being filed or that could be filed due to the CVA’s opening a one‑year window for previously time-barred claims and extending the statutes of limitations, the Department encourages Addressees to keep all relevant records until the later of the above-referenced time periods and the full resolution of all possible claims that could be covered under policies an Insurer issued. The Department encourages Addressees not to cite the minimum requirements set forth in the Insurance Law and regulations as a basis for destroying potentially relevant records, when they know or have reason to know they have potential liability with respect to CVA-related claims.
Rather, the Department encourages all Addressees to act promptly and in good faith with their prior and current policyholders, and the related claimants, so that victims are appropriately compensated for the harms they have suffered. Accordingly, Insurers must act in accordance with the principles in Insurance Regulation 64 described above, and all Addressees should act in good faith to work with policyholders to preserve and reconstruct prior records and data.
The Department understands that some policyholders and former policyholders with potential exposures to CVA-related legal claims might not have copies of their policies from the applicable time (years, or even decades, ago). In such cases, the Department encourages Addressees to act in good faith and apply their best efforts to locate and provide copies of policies to policyholders. Where no copy is available or can be reconstructed, an Insurer and any other party that was involved in the issuance of a relevant policy (including, but not limited to, the marketing/solicitation/sale/administration of such policy) should provide any other relevant records (such as declaration pages, letters or other correspondence, certificates of insurance, or any other documents describing the relevant coverage). The Department encourages all Addressees to preserve and produce such records to policyholders when needed. The Department also encourages Addressees to give due consideration to similar other records that a policyholder may be able to produce as a demonstration of good faith.
VI. Loss and Loss Expense Reserves
The Department expects all Addressees with exposures to CVA-related legal claims promptly to assess their exposures and adjust their loss and loss expense reserves accordingly pursuant to Insurance Law § 1303 if they have not already done so, as should all reinsurers, and retrocessionaires. The Department encourages such Addressees to apply appropriate legal, actuarial, and accounting principles and standards to estimate such reserves in good faith, including with the assistance of professionals with specialized expertise when appropriate, and then regularly to update their reserves as claims develop.
VII. Conclusion
The Department expects Addressees to cooperate fully with the intent of the CVA and with any other applicable laws and regulations and encourages Addressees to exceed the minimum standards described in this Circular Letter in dealing with actual and potential CVA-related insurance claims.
Please direct any questions regarding this circular letter by mail to Child Victims Act Inquiries, c/o Consumer Assistance Unit, New York State Department of Financial Services, One State Street, New York, NY 10004 or by email to cva@dfs.ny.gov.
Very truly yours,
_______________________________
Linda A. Lacewell
Superintendent of Financial Services
Linda A. Lacewell
Superintendent of Financial Services
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The Department divided this circular letter into seven sections:
I. PurposeMy thoughts and observation on each section:
II. Discussion
III. Fair Claims Practices
IV. Unfair Claims Practices
V. Records
VI. Loss and Expense Reserves
VII. Conclusion
I. Purpose
The purpose of this circular letter is to inform all authorized property/casualty insurers, licensed insurance producers, adjusters, and reinsurers (collectively, “Addressees”) that the Department of Financial Services (“Department”) expects Addressees to cooperate fully with the intent of the Child Victims Act (“CVA”).
The intent of the CVA, as I understand it, was to revive time-barred claims of sexual abuse victims for money damages. Not sure how insurance licensees can "cooperate fully" with that intent, unless the Department is suggesting that insurers should cooperate with victims' counsel to ensure the recovery of money damages.
Accordingly, the Department encourages all Addressees with potential exposure to CVA-related legal claims to act promptly and in utmost good faith and to exercise best practices with their prior and current policyholders, and their respective claimants, including properly performing any and all duties to defend CVA-related claims.
How exactly should insurers assess any "potential exposure to CVA-related legal claims"? Should this be done before insurers actually receive notice of any CVA-related claims? Read on.
III. Fair Claims Practices
This section begins with a reiteration of Regulation 64's preamble. For CVA-related claims in particular, the Department has added another set of what the Department now says insurers "should" do:
In the case of CVA-related insurance claims, the Department encourages Addressees to act in utmost good faith and to take the initiative to be cooperative so that victims may be compensated, including that Addressees should:
- act promptly, not extending unnecessarily to the maximum time periods permissible;
- exert diligence to seek out copies of relevant policies of current and prior policyholders that the addressee knows or has reason to know may be subject to CVA-related legal claims;
- fairly review such policies, interpreting such contracts so as to resolve any ambiguities in the policyholders’ favor;
- assess the applicable coverage, including any applicable exclusions or other limitations;
- affirmatively contact the relevant policyholders with such assessments promptly (even before a claim is filed, whenever possible) to assist policyholders in considering their coverage, such that the addressee and policyholders can cooperate in addressing complaints as they are filed; and
- perform on its duties to defend policyholders.
There you have it. Setting aside the notions that liability insurance protects only accidentally caused injury or harm, the general rule than employers are not liable for the criminal acts of their employees, and that, in some cases, the organizational defendants listed in this circular letter knew nothing about the sexual abuse or molestation, the Department nonetheless wants insurers to "take the initiative to be cooperative" to compensate victims. Know that if you're an insurer your conduct in handling CVA-related claims will be measured not only by Regulation 64's Preamble, but by the extra set of what the Department says insurers "should" do.
IV. Unfair Claims Practices
Nothing new here (not surprisingly). Conduct that would constitute an unfair claim practice can only be enumerated and prescribed by promulgated regulation. A circular letter is not a regulation.
V. Records
Read this section (above) again. There's a lot here, including the letter's sole use of all caps :
For CVA-related legal claims that were previously time-barred, the Department encourages Addressees and any other parties with potentially relevant records to maintain ALL such records until the full resolution of such legal claims.
The Department again "encourages" insurers "to act promptly and in good faith with their prior and current policyholders, and the related claimants, so that victims are appropriately compensated for the harms they have suffered." Translation: the Department wants insurers to pay CVA-related claims. I think that's pretty clear.
On the issue of a "lost policy", the letter states:
The Department understands that some policyholders and former policyholders with potential exposures to CVA-related legal claims might not have copies of their policies from the applicable time (years, or even decades, ago). In such cases, the Department encourages Addressees to act in good faith and apply their best efforts to locate and provide copies of policies to policyholders. Where no copy is available or can be reconstructed, an Insurer and any other party that was involved in the issuance of a relevant policy (including, but not limited to, the marketing/solicitation/sale/administration of such policy) should provide any other relevant records (such as declaration pages, letters or other correspondence, certificates of insurance, or any other documents describing the relevant coverage). The Department encourages all Addressees to preserve and produce such records to policyholders when needed. The Department also encourages Addressees to give due consideration to similar other records that a policyholder may be able to produce as a demonstration of good faith.
On the issue of a "lost policy", the letter states:
The Department understands that some policyholders and former policyholders with potential exposures to CVA-related legal claims might not have copies of their policies from the applicable time (years, or even decades, ago). In such cases, the Department encourages Addressees to act in good faith and apply their best efforts to locate and provide copies of policies to policyholders. Where no copy is available or can be reconstructed, an Insurer and any other party that was involved in the issuance of a relevant policy (including, but not limited to, the marketing/solicitation/sale/administration of such policy) should provide any other relevant records (such as declaration pages, letters or other correspondence, certificates of insurance, or any other documents describing the relevant coverage). The Department encourages all Addressees to preserve and produce such records to policyholders when needed. The Department also encourages Addressees to give due consideration to similar other records that a policyholder may be able to produce as a demonstration of good faith.
My next CVA-related post on this blog will be New York's common law on lost policies.
Any insurer that has not already destroyed historical records of policies issued to the "potential defendants" mentioned in this circular letter should consider the shoulds and musts of this circular letter before doing so.
VI. Loss and Expense Reserves
This section begins:
The Department expects all Addressees with exposures to CVA-related legal claims promptly to assess their exposures and adjust their loss and loss expense reserves accordingly pursuant to Insurance Law § 1303 if they have not already done so[.]
Exposures or "potential exposures" (see Section II above)? If the later, by what method can an insurer assess its potential exposure to CVA-related claims and reserve accordingly? By the name or nature of its policyholders? This section must relate to actual CVA-related legal claims that have already been presented and/or sued, right?
VII. Conclusion
The Department expects Addressees to cooperate fully with the intent of the CVA and with any other applicable laws and regulations and encourages Addressees to exceed the minimum standards described in this Circular Letter in dealing with actual and potential CVA-related insurance claims.
Expectation and encouragement.
Words matter, so for those who like word metrics, here's a tally for those who weren't counting:
Encourages -- 13
Legal -- 11
Good faith -- 10
Policies -- 10
Should -- 9
Exposure(s) -- 8
Minimum -- 6
Relevant records -- 6
11 NYCRR Part 216 (Regulation 64) -- 5
Expects -- 4
Intent -- 3
Cooperate -- 3
Settlement -- 3
Requirements -- 3
Unfair -- 3
Utmost good faith -- 3
Must -- 1
So this circular letter is more encouraging than cautionary in tone and substance?
The Department expects Addressees to cooperate fully with the intent of the CVA and with any other applicable laws and regulations and encourages Addressees to exceed the minimum standards described in this Circular Letter in dealing with actual and potential CVA-related insurance claims.
Expectation and encouragement.
Words matter, so for those who like word metrics, here's a tally for those who weren't counting:
Encourages -- 13
Legal -- 11
Good faith -- 10
Policies -- 10
Should -- 9
Exposure(s) -- 8
Minimum -- 6
Relevant records -- 6
11 NYCRR Part 216 (Regulation 64) -- 5
Expects -- 4
Intent -- 3
Cooperate -- 3
Settlement -- 3
Requirements -- 3
Unfair -- 3
Utmost good faith -- 3
Must -- 1
So this circular letter is more encouraging than cautionary in tone and substance?