The Underwriter's Insider 2012 Issue 7 by The Underwriter's Insider

INSURANCE • POLITICS • TECHNOLOGY • PEOPLE VOLUME 9 • 2012 • ISSUE 7

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Features News 5

Advertising

Kim Komando

Inside Track

Marketplace

Insider Advisor

Classifieds

Say What?

Back Issues

A1A Urges Veto of “Reckless” RI Body Shop Legislation

Failure to Chew Non Compensable - By Barry Zalma, Esq.

Florida’s McCarty Issues “Statement of Concern”

Georgia’s Ralph Hudgens Also Concerned on Ruling

Mississippi’s Mike Chaney Also Weighs in on Ruling

Louisiana Announces New Deputy Commissioner

N. Carolina Woman Pleads Guilty in $63 Million Medicare Fraud

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News 14 16 16

Two Miami Men Sentenced $200M Medicare Fruad Former Georgia Correctional Officer Pleads Guilty to Assualt and Injure Inhmates Must Have iPhone App: Credit Karma

Insurance, to Be Effective, Must be in Writing! By Barry Zalma, Esq.

When Life Offers Opportunities - How Will You React? By Matthew A. Treeskovich

Florida Announces Arrests in Major Workerâ&#x20AC;&#x2122;s Comp Fraud Check Cashing Scheme

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AIA URGES VETO OF RECKLESS R.I. AUTO BODY LEGISLATION - WHICH COULD BECOME A MODEL FOR OTHER STATES

ASHINGTON, D.C., June 13, 2012 – The American Insurance Association (AIA) views the passage of H. 7782A, adverse legislation which allows for nationally unprecedented private rights of action for auto body shops directly against insurers, by the Rhode Island General Assembly as poor public policy. The bill enables auto body shops to unilaterally set rates and sue insurers who do not agree to pay a shop’s rates and related repair costs. www.underwritersinsider.com

Rhode Island is already one of the most expensive states in the nation for auto body repairs. Currently, drivers pay the sixth highest collision insurance premiums in the nation due in large part to higher than average claim costs including labor costs which exceed the national average by 26.7 percent.

AIA urges Governor Lincoln Chafee (I) to veto this legislation.

“Rhode Island’s drivers should say ‘no’ to increased litigation and increased repair costs,” said Henning. “H. 7782A “No other state in the nation allows auto pads the wallets of auto body shops body shops to set non-negotiable rates at the expense of consumers.” and attempt to force them on third H. 7782A was passed by the House party payers under threat of litigation,” on June 11 by a vote of 38 to 20 with said Gary Henning, AIA Northeast 17 members not voting. It passed region vice president. “This legislation the Senate late last night by a vote of represents poor public policy which 24 to 11 with 3 members not voting could lead to an explosion of litigation. just prior to the General Assembly’s It should be vetoed when it reaches adjournment. It now heads to the the governor’s desk.” governor for consideration.

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CONTENTS 2012 • Issue 7

A Publication of AdMax Media Corp Corporate Offices P.O. Box 31551 P. Beach Gardens, FL 33420

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APPS THAT PUT YOU ON THE MAP

networks, they didn’t know the other was there. Later, the friends found out that they had only been two gates apart.

by Kim Komando

Banjo combs public broadcasts to Twitter, Facebook, LinkedIn and other major social platforms and plots all of the information on a map.

t’s hardly unusual anymore to see people walking around with their heads bent down toward their smartphone screens. She might be reading an old-school email. He might be tweeting about the awesome triple cheeseburger with bacon he just had for lunch. If they’re on the cutting edge, however, they’re probably checking to see if any of their friends are close by. Welcome to the brave new world of ambient social networking apps. Some media outlets are calling these apps SoMoLo (social, mobile, local). Others are calling it creepy. Whatever you call them, they work in a similar

way. They run in the background and persistently use GPS and social networking information to alert you if a friend happens to be within a block or two of your location. If you’re not careful how you use the apps, however, they can also automatically check you into locations. They might reveal your whereabouts to friends of friends or to people who just share some of your interests. Last time I checked, those were called complete strangers! Damien Patton says he was inspired to create Banjo when he missed connecting with an old Navy buddy in Boston. They both posted from Logan International Airport at about the same time. But because they were on different s o c i a l

Users can see what’s going on around them without having to reveal their locations. The app will show your whereabouts only when you check in, and information is restricted to just friends - as long as that’s also your Facebook privacy setting. The new app Highlight, however, works a little differently. After launching Highlight by logging in to your Facebook account, the app automatically alerts nearby users when the software identifies you as having friends of friends or common interests. Their profile will show up on your iPhone and vice versa. Highlight users must remember to pause Highlight if they don’t want to reveal their locations. At least Kismet, another fast-growing ambient social app, is smart enough to automatically hide you when you’re at home. The designers of Sonar say their app will only send you a notification if you’re near a Facebook friend or someone you follow on Twitter. Are these SoLoMos more than a passing fad? Well, Highlight,

See Kim Komando Pg 37 www.underwritersinsider.com

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FAILURE TO CHEW NOT COMPENSABLE By Barry Zalma, Esq. The Quesadilla Caper The Virginia Court of Appeal was called upon to resolve a dispute between the workers’ compensation commission and Michael Bernard, a restaurant waiter who attempted to swallow a piece of quesadilla that was too big for his esophagus. The commission found Bernard’s injury occurred in the course of his employment but not as a result of an actual risk of employment. In Michael Bernard v. Carlson Companies — TGIF and, No. 2590-11-2 (Va.App. 07/17/2012) the Court of Appeal resolved the dispute.

disciplined” if he chose not to sample the food. In January 2010, Bernard sampled a quesadilla. Though he had never before had problems swallowing food, Bernard

unusual or defective in any way. Bernard has had Crohn’s disease since childhood. But he did not claim, nor did the evidence prove, that some peculiar quality of the quesadilla triggered his underlying Crohn’s disease.

The deputy commissioner denied the claim, finding the injury occurred in the course of the employment but did not arise out of an actual risk of the employment. The commission held: “[W]e find that the claimant’s injury did not arise out of a risk of his employment. In cases of injury due to food provided by the employer, we have found compensable injuries only when there was something unusual THE COMMON or abnormal about the food, i.e. AND UNPECULIAR Barry Zalma, Esq., CFE is a California attorney it was spicy, hot in temperature, specializing in insurance coverage, insurance QUESADILLA or contained a hard object. Here, claims handling and fraud who serves as there was no problem documented a consultant and expert for insurers and The court views the evidence on with the quesadilla which became policyholders. He founded Zalma Insurance appeal in the light most favorable Consultants in 2001 and serves as its senior stuck in the claimant’s throat and to Bernard’s employer, the prevailing consultant. He recently published an e-book, caused his injury. The claimant did “Insurance Fraud,” which is available at his Web party before the commission. not assert that it was something site, www.zalma.com. Go to Zalma Books at In 2010, Bernard worked as a that he should not eat because of http://www.zalma.com/zalmabooks.htm. host and waiter at a TGI Friday’s his medical condition. The claimant (TGIF) restaurant. When new food would have been equally exposed selections came out, he and other to any risk connected with eating an employees often sampled the food so choked on a partially chewed bite of ordinary quesadilla had he eaten it apart the quesadilla. The strenuous process of from his employment.” Join Barry Zalma’s new Blog: dislodging it damaged his esophagus. http://www.zalma.com/blog On appeal Bernard conceded he Bernard filed a worker’s compensation “attempted to swallow a piece of claim, contending the injury occurred in quesadilla that was too big for his they could make recommendations the course of his employment and arose esophagus.” to customers. The commission found out of an actual risk of his employment. Bernard “was not required to taste He did not allege the quesadilla was See Zalma Pg 33 anything” and “did not anticipate being 10

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STATEMENT “OF CONCERN” REGARDING OBAMACARE FROM NORMALLY LEFT-LEANING FLORIDA INSURANCE COMM. KEVIN MCCARTY

la. Insurance Commissioner Kevin McCarty can normally be counted on to lean far left on political issues favoring redistributive mechanics (e.g. credit scoring, life insurance rating) - but he has issued a statement in late June expressing “concern” over the U.S. Supreme Court’s recent and unexpected affirmation of the socalled “personal mandate.”

"Our Office has previously expressed concerns about several provisions of the Affordable Care Act and the potential for detrimental impacts on the availability and affordability of health insurance. Today, the United States Supreme Court's ruling affirmed the substance of the Affordable Care Act.

GEORGIA’S RALPH HUDGENS ALSO WEIGHS IN ON THE SUPREME COURT DECISION

tlanta – Insurance Commissioner Ralph Hudgens issued the following statement today following the decision by the U.S. Supreme Court to uphold the Patient Protection and Affordable Care Act. “I am disappointed by this ruling, and unlike the narrow majority of the court, I believe the individual mandate to be unconstitutional. This decision constitutes a significant erosion of individual freedom and expands the power of the federal government. Obamacare limits state flexibility and fails to make room for

With the affirmation of the Affordable Care Act, I remain concerned about the potential for increased health insurance premiums and continued disruption to the stability of the marketplace for many Floridians. Nevertheless, we will work with the Florida Legislature and Gov. Scott to implement the Supreme Court's decision and develop an implementation strategy that minimizes m a r k e t disruption and allows Florida's health insurers and HMOs to continue to provide coverage in our state. I would like to commend Florida Gov. Rick Scott and Attorney General Pam Bondi for their diligent efforts on behalf of Florida's citizens."

free market solutions. It was the wrong law when it was passed and is the wrong law now. In my opinion, this law will lead to increased cost, less consumer choice, and a reduction in the quality of care. That is why I urge the U.S. Congress to repeal and replace Obamacare with policies that provide marketbased solutions which make sense for taxpayers. The choice is now with the American people on this issue, and they will have the ultimate say in November.”

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MISSISSIPPI COMMISSIONER MIKE CHANEY STATEMENT ON SUPREME COURT RULING

ACKSON, MS - This is a lengthy and complicated decision that the department and I are continuing to review. I have expressed grave concerns about several provisions of the Affordable Care Act and the impact on availability and affordability of health insurance. We need stability and predictability in the marketplace to prevent drastic increases in premiums for Mississippians. This law will result in tax

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increases on Americans and Mississippians and may be detrimental to senior citizens. The law has been upheld by the Supreme Court and continues to be the law of the land. It is my job as a regulator to abide by all state and federal laws whether I agree with them or not. We have been proceeding as the law mandated and we will continue to do that. We will continue to consult with Gov. Bryant, Lt. Gov. Reeves and the Speaker of the House about the impacts of the ruling on Mississippi. We are moving along in developing a health insurance exchange which will increase access to health insurance and help stabilize costs for small employers. I believe that we have acted diligently. The result is a state-based exchange which will prevent us from deferring to a federally-run exchange. There is value in creating a statebased exchange in Mississippi. There is still a federal mandate that every state create an exchange by 2014. If we do not operate an exchange then the federal government will run one for us. Right now we have the flexibility and are well on our way to creating free market option, created by Mississippians, for Mississippians.

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LOUISIANAâ&#x20AC;&#x2122;S DONELON ANNOUNCES ILEANA GARCIA LEDET AS NEW DEPUTY COMMISSIONER OF PUBLIC AFFAIRS

ommissioner of Insurance Jim Donelon announced today that Ileana Garcia Ledet has assumed the position of Deputy Commissioner of Public Affairs for the Louisiana Department of Insurance. Ledet will head the Public Affairs division by managing the Departmentâ&#x20AC;&#x2122;s public relations activities. A graduate of George Washington University in Washington, D.C., Ledet earned a Bachelor of Arts in International Affairs with Communications Concentration and minored in radio and television. 13

N. CAROLINA WOMAN PLEADS GUILTY IN $63 MILLION MEDICARE INSURANCE FRAUD

n Asheville, N.C., resident pleaded guilty July 2, 2012 in U.S. District Court in Miami for her role in a health care fraud scheme that resulted in the submission of more than $63 million in fraudulent claims to Medicare and Medicaid in Miami and Hendersonville, N.C., announced the Department of Justice, the FBI, and the Department of Health and Human Services (HHS). Serena Joslin, 31, a Licensed Psychological Associate, pleaded guilty before U.S. District Judge Cecilia M. Altonaga in Miami to one count of conspiracy to commit health care fraud. Joslin admitted to participating in a fraud scheme that was orchestrated through an entity called Health Care Solutions Network (HCSN). HCSN operated purported partial hospitalization programs (PHPs), a form of intensive mental health treatment for severe mental illness, in both Miami and Hendersonville. According to an indictment unsealed on May 2, 2012, HCSN obtained Medicare beneficiaries to attend HCSN for purported PHP treatment that was unnecessary and, in many instances, not provided. HCSN obtained those beneficiaries by paying kickbacks

to owners and operators of assisted living facilities (ALFs) or by otherwise recruiting them from ALFs and nursing homes. According to court documents, Joslin admitted that she was aware that HCSN recruited patients who were inappropriate for PHP treatment. Nevertheless, Joslin agreed with other HCSN employees to, among other things, fabricate therapy notes and other medical records, and to direct therapists to fabricate therapy notes and other medical records, all to make it appear as if HCSN patients received appropriate PHP services. Joslin was aware that fraudulent claims to Medicare would be submitted on behalf of these patients. At sentencing, scheduled for Jan. 11, 2013, Joslin faces a maximum of 10 years in prison and a $250,000 fine. Eight other charged defendants, including the owner and operators of HCSN, await trial before Judge Altonaga. Defendants are presumed innocent until proven guilty at trial. Today’s guilty plea was announced by U.S. Attorney Wifredo A. Ferrer of the Southern District of Florida; Assistant Attorney General Lanny A. Breuer of the Justice Department’s Criminal Division; Xanthi C. Mangum, Acting Special Agent in Charge of the FBI’s Miami Field Office; and Special Agent in Charge Christopher B. Dennis of the HHS Office of Inspector General (HHS-OIG), Office of Investigations Miami office. The case is being prosecuted by Trial Attorneys Steven Kim, William Parente and Allan Medina of the Criminal Division’s Fraud Section. The case was investigated by the FBI, HHS-OIG and Medicaid Fraud Control Unit and was brought as part of the Medicare Fraud Strike Force, supervised by the Criminal Division’s Fraud Section and the U.S.

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Attorney’s Office for the Southern District of Florida. Since their inception in March 2007, Medicare Fraud Strike Force operations in nine locations have charged more than 1,330 defendants who collectively have falsely billed the Medicare program for more than $4 billion. In addition, HHS’s Centers for Medicare and Medicaid Services, working in conjunction with the HHS-OIG, are taking steps to increase accountability and decrease the presence of fraudulent providers.

2 MIAMI MEN SENTENCED IN $200M MEDICARE INSURANCE FRAUD

wo Miami-area patient recruiters were sentenced to 84 months and 63 months in prison, respectively, for recruiting Medicare beneficiaries as part of a $200 million Medicare fraud scheme. James Edwards was sentenced yesterday to 84 months in prison and three years of supervised release and Nelson Fernandez was sentenced on June 27, 2012 to 63 months in prison and three years of supervised release. In addition, Fernandez was sentenced to pay $13.1 million in restitution, joint and several with co-conspirators, and Edwards was sentenced to pay $4.1 million in restitution, joint and several with coconspirators. Both Fernandez and Edwards pleaded The Underwriter’s Insider

guilty and admitted to serving as patient brokers for American Therapeutic Corporation (ATC). ATC, its management company, Medlink Professional Management Group Inc., and a related company, the American Sleep Institute (ASI), all Florida corporations headquartered in Miami. ATC operated purported partial hospitalization programs (PHPs) in seven different locations throughout South Florida and Orlando. A PHP is a form of intensive treatment for severe mental illness. ASI purported to provide diagnostic sleep disorder testing. According to court documents, Fernandez and Edwards recruited patients to attend ATCâ&#x20AC;&#x2122;s PHP program in exchange for per patient, per day kickbacks. Based on their recruiting, Fernandez admitted to causing $8 million in fraudulent submissions to Medicare www.underwritersinsider.com

and Edwards admitted to causing $8.16 in fraudulent bills to Medicare. Both Fernandez and Edwards admitted that they knew the patients they recruited for ATC were not qualified to receive PHP treatment. Both men also admitted to recruiting ineligible patients for ASIâ&#x20AC;&#x2122;s sleep studies. Fernandez additionally admitted to causing $14.7 million in fraudulent bills to Medicare in a separate home health services scheme in which he used some of the same patients that he brokered to ATC. Edwards additionally admitted to causing $4.1 million in fraudulent bills to Medicare in a separate PHP scheme. According to court filings, ATCâ&#x20AC;&#x2122;s owners and operators paid millions of dollars in kickbacks to owners and operators of assisted living facilities and halfway houses and to patient brokers in exchange for delivering ineligible

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patients to ATC and ASI. In some cases, the patients received a portion of those kickbacks. According to court filings, to obtain the cash required to support the kickbacks, the co-conspirators laundered millions of dollars of payments from Medicare. According to court filings and evidence admitted at trials of codefendants, ATC and ASI substituted faked documents in lieu of actual treatment. ATC, Medlink, and various owners, managers, doctors, therapists, patient brokers and marketers of ATC, Medlink and ASI, were charged with various health care fraud, kickback, money laundering and other offenses. ATC, Medlink and 19 of the individual defendants have pleaded guilty or have been convicted at trial. Other defendants are scheduled for trial on Oct. 22, 2012, before Judge Seitz. 15

FORMER GEORGIA CORRECTIONAL OFFICER PLEADS GUILTY TO CONSPIRING TO ASSAULT AND INJURE INMATES

he Justice Department and

the United States Attorney for the Middle District of Georgia, announced that Willie Redden, a former member of the Correctional Emergency Response Team (CERT) at Macon State Prison, pleaded guilty to conspiring with other correctional officers to violate the civil rights of inmates in 2010. In connection with his guilty plea,

Redden admitted that he and other correctional officers assaulted and injured inmates in separate incidents at Macon State Prison in 2010. Redden indicated that correctional officers beat these inmates in order to punish them. One inmate was beaten until he was unresponsive and had to be transported from Macon State Prison in an ambulance. Redden further acknowledged that

he and other correctional officers tried to cover up CERT’s role in beating and injuring inmates. Redden stated that more senior officers told him to write a false report and to stick to their cover story when speaking with investigators.

Attorney for the Middle District of Georgia, stated: “When people are incarcerated, the sentence they are required to serve is their time locked up in prison. It is not a part of their sentence that they be subjected to beatings by the correctional officers. The Department of Justice and I share a zero tolerance policy for those who violate another’s civil rights.”

p until now, you could only get a free copy of your credit report once a year. Now there is Credit Karma, a uniquely useful free app that reports not only your credit score (including your insurability score) daily, but breaks it down to an incredibly readable few pages that graphically shows you This case is being investigated by exactly how and why you’ve earned the Federal Bureau of Investigation, your score. This iPhone/iPad app gets and is being prosecuted by Special our top rating. Try it!

Litigation Counsel Forrest Christian Redden, who is 24 and from Albany, and Trial Attorney Tona Boyd of the Georgia, faces a maximum penalty of Civil Rights Division of the United States Department of Justice, with five years in prison. the assistance of the United States Michael J. Moore, the United States Attorney’s Office for the Middle District of Georgia. 16

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n June 29, 2012, Congress finally passed legislation offering some sort of permanence to the National Flood Insurance Program. The House voted 373-52 to pass and the Senate 7419, just a couple of minutes later. NFIP is now authorized for operation until Sept. 30, 2017.

ASA, one of the insurance industry’s largest and most well-represented trade associations, is pleased to announce that Louise Ziemann of State Farm has been elected to serve as president of the association for the 2012 - 2013 fiscal year. Ziemann holds both the CPCU and CLU designations, and is a finance manager for State Farm in the company’s Financial Reporting and Analysis Department at the Bloomington, Illinois headquarters location. Ziemann joined State Farm in 1978 as a Deposit Control Clerk in the Accounting department in the West Central Regional Office, moving to an Accounting Supervisor position in 1984. Prior to being promoted to her current position, Ziemann also held positions as Accounting Analyst, Accounting Superintendent, and Superintendent.

Net income for the six-month period ended June 30, 2012 was $91,904,000, or $0.63 per share, compared with $83,328,000, or $0.57 per share for the same period of 2011, an increase of 10.5%. feature more than 55 carefully selected speakers presenting 24 workshops designed to provide attendees with proven risk management strategies and insights.

rown & Brown, Inc. (NYSE: BRO) announced in July its preliminary, unaudited financial results for the second quarter of 2012. Net income for the second quarter of 2012 was $42,471,000, or $0.29 per share, compared with $37,035,000, or $0.26 per share for the same quarter of 2011, an increase of 11.5%. Total revenue for the second quarter was $290,916,000, compared with 2011 second-quarter revenue of $246,816,000, an increase of 17.9%. Total revenue for the six months ended June 30, 2012 was $593,402,000, compared with total revenue for the same period of 2011 of $509,044,000, an increase of 16.6%.

ccording to a recent survey by PEW reports, “Most voters continue to say it is important for a president to have strong religious beliefs. But voters have limited awareness of the religious faiths of both Mitt Romney and Barack Obama. And there is little evidence to suggest that concerns about the candidates’ respective faiths will have a meaningful impact in the fall elections.” MORE

ravelers Insurance Co. reported net income of $499 million in 2012’s second quarter, this compared to a net loss of $364 million only a year ago. The company attributed the increase in profits a significant decrease in catastrophe losses. Cat losses dropped to $357 million after tax as compared to $1.1 billion after tax in last year’s second quarter.

nternational Risk Management Institute, Inc. (IRMI), is pleased to announce the agenda, workshops, and speakers for the 32nd IRMI Construction Risk Conference, to be held November 11–15, 2012, at the Orlando Gaylord Palms. Registration is now open for the IRMI Construction Risk Conference, the only national symposium devoted exclusively to construction insurance, risk management, loss control, and bonding. The 3½-day program will

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hubb Corp is dumping certain “underperforming” professional liability accounts. “We’re culling the business [where] we don’t see the market allowing us to take enough rate in the near future to make adequate profit,” according to John D. Finnegan, president, chairman and CEO of Chubb. The report did not mention which professional liability lines were “underperforming.”

lorida’s Citizens Property Insurance Corp recently revealed a proposal to hike homeowners rates by 7.5% on average. While the quasi-government run insurance corp is required to file actuarily sound rates, it is limited by law to a 10% increase annually. If the company was not fettered by the 10% cap, it would have filed for an average increase of 34.2% statewide. According to Barry Gilway, the new CEO of Citizens, an actuarily sound rate increase in Dade County would have been 72% - and an astounding 166% increase in Monroe county. A homeowner can turn to Citizens if the rate difference between Citizens and the private market is at least 15.

ime Magazine reported in July that Canadians are now richer than Americans - with the average net worth of a Canadian household now more than $40,000 greater than the average American home. Most of the decrease in the American net worth has happened during the Obama administration. Thanks Barry.

ndividuals who don’t have insurance would need to obtain a plan by 2014 or pay a fine. Consolidated Credit recommends consumers obtain insurance; otherwise individuals could pay high medical bills and government fines. The most convenient option for consumers is to purchase insurance through their workplace. Individuals, whose incomes are below 400 percent of the www.underwritersinsider.com

poverty line, won’t pay a fine. Given that about 15 percent of the Latino population is below 400 percent of the poverty line, this sector will be exempt from paying the government fine and will receive subsidies paid for by taxpayers. Source: Consolidated Credit Counseling Services, Inc.

ost Muslims Want Democracy, Personal Freedoms, and Islam in Public Life, according to a recent PEW research study. MORE

niversal Insurance Holdings, Inc. (“Company”) (NYSE MKT: UVE) announced that the Massachusetts Division of Insurance approved the homeowners rates and forms of its wholly-owned subsidiary, Universal Property & Casualty Insurance Company (“UPCIC”). UPCIC expects to begin to write homeowners insurance in Massachusetts later this month.

nsurance agents and brokers in all 50 states now can provide updated specialty coverage for valued collections from American Collectors Insurance, the nation’s leading provider of collector-vehicle and collectibles insurance. The expanded collectibles program from American Collectors offers more comprehensive, customizable coverage for a wide range of collectibles, anywhere in the United States. “We offer coverage options for nearly any type of collection imaginable,” said Laura Bergan, vice president of sales and marketing for American Collectors. “Collectors can choose their deductible, coverage ruce Wood, associate general limits, and even optional coverage for counsel and director of workers’ shipping and occasional use.” compensation programs for the American Insurance Association edicare Supplemental (AIA), testified on July 12 before the Insurance, Medicare National Conference of Insurance Advantage plans, and Medicare Part Legislators (NCOIL) Workers’ D are the most commonly purchased Compensation Committee on opioid forms of coverage when turning 65 and prescription drug cost abuse in when employer group insurance is the workers’ compensation system. unavailable. These types of plans help The hearing, which includes a panel protect seniors from the high costs discussion, is focused on potential of medical care. Half of the surveyed legislative solutions to address seniors believed they were better off the growing problem of opioid with electing to stay with their current abuse in workers’ compensation employer plan versus enrolling in cases. “The abuse of opioids and their own Medicare supplemental prescription drugs involved in insurance plan. Source: www. workers’ compensation is growing at MedicareMedics.com. a staggering rate,” said Wood. “Action is needed by states to help combat s if you didn’t have enough to this epidemic. Opioid abuse goes worry about, now sitting can kill beyond workers’ compensation you. WebMD reports that sitting less and is now a health, economic and than 3 hours a day may add 2 years to societal problem.” your life.

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viation Products & Liability Insurance from Arlington/Roe & Company - MGA - representing mulitple markets. Contact: 800.878.9891 X 2401. Cfrench@ arlingtonroe.com [11-6]

Chemical Mfg & Distribution Risks

uel additives, Industrial gases, paints, varnishes, lacquers, enamels, solvents, adhesives, sealants and a multitude of other chemical manufacturing and distribution risks. Min Prem $20,000 and other underwriting criteria. See Sloan Mason: Contact Grant Kanamori @ 619-814-2488 or grant@sloanmason.com. [11-7]

Collectables

merican Collectors announces updated specialty coverage for valued collections. The company claims coverage available for almost any type of collection with multiple coverage options. www.AmericanCollectors.com/Agents (800) 620-5052 12-7

Commercial Auto

ational Ins Underwriting - Light, medium & heavy up to 66,000 lbs. up to 500 mile radius, Up to $1M CSL or $1/$2M split, Phys Dam up to $100K - Med Pay, Hired and NOL. Contact: Call Craig Calver - 800338-2680 X 508.

ingsway/Amigo Competitve commercial auto program. Any size fleet, - all types of cars, light trucks and vans - specialty services, like landscaping, electrical, plumbing, lunch trucks and other various occupations. info@ kinswayamigo.com

Condo Assoc Program

rident is offering tailored coverage designed for condominium town home and single-family community associations claiming competitive rates and terms. Coverages available include property, including flood, earthquake and coastal windstorm, general liability, D&O, umbrella, worker’s comp, auto, crime and property mgrs E&O. Trident Community Association Program - 5100 N. O’Connor Blvd, #200, Irving, Texas 75039 or email to csmktgprograms@argogroupus.com 877590-0775 [11-6]

Contractors

eavy construction risks including steel erection contractors, concrete contractors, roofing contractors, bridge, street & road contractors, etc. Norman Spencer - Contact Brian Harrold p: 937.432.1469 brianharrold@normanspencer.com [11-7]

Contractor’s Pollution

ost contractors - including those with mold exposures and cleanup contractors. Program includes CPL - Occurrence or Claims Made form - mold coverage available - Annual & Per Project policies. Highly competitive rates claimed. All Risks, Ltd - Lou Ann Cook - 800-3665810 X 3030 email: nspflyer@allrisks.com [12-4]

Convenience Store

rgo Insurance announces expanded program and competitive rates for convenience store accounts. Company is looking for stores open until 11PM, fuel sales up to 90%, alcohol sales up to 30% with no fuel hauling exposure. Not available in Florida at this time. Email csmktgprograms@argogroupus.com 877590-0775 [11-6]

Design & Construction Industry

rchitects, engineers & surveyors, construction managers, contractors, environmental consultants, landscape architects, specialty construction consultants. Contact Jeff Grigsby 877.453.2071 - JeffG@schinnerer.com [116]

Energy & Utility Risks

il & Gas Companies, pipeline operations, utilities, HVAC contractors and water & sewer contractors. Contact Victor O. Schinner & Co., Inc. Jeff Grigsby - 877-453-2071 or jeffg@ schinnerer.com [12-1]

ropane Dealers - PowerWrap is an endorsed insurance program offering specialized, full spectrum coverage. Contact Alteris: 877-590-0775 [12-1]

Entertainment & Sports

&K Insurance claims “over 75 programs available on admitted paper with no prior approval or appointment needed to submit applications for quotation. “ The MGA can be reached at 800-637-4757 or www. kandkinsurance.com. [11-6]

Group Homes

roup Homes Programs for such risks as Hospice, Agencies for Aging, Homeless Shelters, Rehab Facilities, Adult Day-Care Facilities, etc. Comprehensive packages available - limits up to $1M/$3M - customize with many optional coverages. AFC Insurance - Toll Free: 877-456-5323

Hair & Beauty Insurance Program

ASS - Salon & Spa Specialty Insurance administered by Brownyard Group open to agents seeking access to program. 888-823-9380 or Email: sassi@brownyard. com [11-7]

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Health & Human Services

FC Insurance - Package programs or ala carte. Contact: 877-4565323 www.afcins.com submissions@ afcins.com [12-2]

Homeowners

Kidnap & Ransom

ational Ins Underwriting -Webbased quick quotes, most protection classes & zip-codes OK - $40K - $750K dwelling values with replacement cost available. No credit scoring. Renters policies available. Contact: Craig Calver - 800-338-2680 X 508.

cademic institutions, energy companies, engineering firms, hospitals and healthcare, houses of worship, manufacturing firms, etc. Contact Victor O. Schinner & Co., Inc. Jeff Grigsby - 877-453-2071 or jeffg@ schinnerer.com [12-1]

Life Agent E&O

ife agent E&O from Rockwood Programs. Coverage limits from $250K to $1 Million. Base rates from $400 to $550. Individual policies. Indentity theft included. No shared aggregates. Includes mutual fund placement. Call 877-242-2487 or email sales@rockwoodinsurance.com. [12-4]

Marine Risks Worker’s Comp & Longshore & Harbor Workers’ Comp

eaBright Insurance Company offers high quality workers’ compensation coverage for your clients who are small maritime employers and other marine-related businesses. SeaBright provides seamless cov All Risks, LTD 410-828-5810 rlang@allrisks. com or Appalachian Underwriters, Inc. – Oak Ridge, TN 865-425-1051 warren. palmer@appund.com or Peachtree Special Risk Brokers – Metairie, LA 504830-7347 jlasseigne@psrllc.co [11-7]

Marine, Recreational

orman Spencer announces availability of a market for multiple and vaious recreational marine risks including marinas, docks, boat rentals, boat mfgs, charters and more. Contact Corky Breeden at 937432-1631. 12-7

Have a P&C Product Announcement? Send your press release or one-paragraph announcement to ron@insurmedia.com

Martial Arts

&K Insurance announces expanded coverage & lower minimum premiums on martial arts coverage. General Aggregate Limit increased to $5M - Participants Med Pay to $150K. The MGA can be reached at 800-637-4757 or www. kandkinsurance.com. [11-6]

Ocean & Inland Marine

prdwode Facilties, Inc. Contractors doing: piers, docks, wharfs, bridges, breakwaters, cranes, dredging, etc. 6455 East Johns Crossing, Suite 115 Johns Creek, GA 30097 (678) 736-6720 • Facsimile: (678) 736-6726 - Carter, Kimberly - 678 736-6720, Ext. 1000 - kcarter@ wwfi.com [11-7]

Professional Liability

echnology & Cyber, Architects & Engineers, RE Agents, Insurance Agents E&O, Misc. Pro Liability - and more: Contact Atlantic Specialty Lines lorie@atlanticspecial.com 877545-9100 [12-1]

ictor O. Schinnerer - A-rated carriers -Real Estate Agents, Healthcare Consultants, General & Artisan Contractors, Architects, engineers & consultants, public entities such as school leaders and public officiials. Contact: 877-4532071 www.schinnerer.com jeffg@ schinnerer.com

Real Estate E&O

overage for open houses, mold, network risks and privacy claims are now part of Victor O. Schinnerer & Company’s Real Estate E&O policy. Schinnerer includes the three new coverages at no additional premium. Call to ck on your state: Starr Crusenberry Starr.N.Crusenberry@Schinnerer.com - 301-951-6904 [11-6]

Restaurant

rgo Insurance announces l o we r rates filed on restaurant c o ve r a g e including fo o d s p o i l a g e c o ve r a g e. Fu l l commission and no agency a p p o i n t m e n t n e c e s s a r y. Co m p a ny i s l o o k i n g fo r f a m i l y s t y l e, f a m i l y g r i l l s, c a s u a l s t y l e, f i n e d i n i n g a n d limited cooking restaurants such a s p i z z a a n d s u b s h o p s. Email csmktgprograms@argogroupus. com 877-590-0775 [11-6]

o r m a n S p e n c e r ’s R e a l E s t a t e Pr o g r a m - “o n e o f t h e m o s t c o m p r e h e n s i ve p o l i c i e s i n t h e m a r k e t w i t h h i g h l y c o m p e t i t i ve p r i c i n g” Co ve r a g e i s av a i l a b l e to risks whose ser vices include R e s i d e n t i a l a n d Co m m e r c i a l S a l e s, Le a s i n g, Pr o p e r t y M a n a g e m e n t , Real Estate Co n s u l t i n g, Au c t i o n e e r i n g, Mortgage B r o k e r i n g, B P O ’s a n d A p p r a i s a l, and Escrow Ser vices - Michael R yd e r m i c h a e l r yd e r @ n o r m a n s p e n c e r. c o m 800.477.9192 x204 [11-7]

Security Guard

r o w ny a r d Pr o g r a m s announces c o ve r a g e fo r security g u a r d s, claiming to insure 15 of the top 40 security g u a r d c o m p a n i e s i n t h e U. S . B r o w ny a r d Pr o g r a m s w w w. b r o w ny a r d p r o g r a m s. c o m or pvancott@brownyardprograms. com [12-4]

Tech Consultants E&O

odern Insurance Co n s u l t a n t s we b s i t e d e s i g n , s o f t w a r e d e ve l o p m e n t , d a t a b a s e a d m i n , we b h o s t i n g, software/hardware sales - and m o r e. I T c o n s u l t a n t s u p t o $ 1 5 M i n a n n u a l s a l e s. Co n t a c t A n d r e w Lawrie - 305-248-9495 X 9108 a l a w r i e @ m o d e r n i n s. c o m [ 1 2 - 2 ]

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INSURANCE, TO BE EFFECTIVE, MUST BE WRITTEN

The Insured’s Burden

t is axiomatic that in every contract of insurance or reinsurance the insured bears the burden of demonstrating that a claim falls within a policy’s affirmative grant of coverage. The First Circuit Court of Appeal was asked to resolve a reinsurance dispute between an American insurance company and a Canadian insurance company in OneBeacon America Insurance Company v. Commercial Union Assurance Company of Canada, No. 112072 (1st Cir. 07/11/2012). The American company, Plaintiff-Appellant OneBeacon America Insurance Company (“OneBeacon”), claims that the Canadian company, DefendantAppellee Aviva Insurance Company of Canada (“Aviva”), is obligated to reinsure OneBeacon for policies OneBeacon issued to certain entities in the early 1980s. Both parties filed cross-motions for summary judgment, and the district court denied summary judgment to OneBeacon and granted summary judgment to Aviva. OneBeacon appealed.

BACKGROUND In the early 1980s, OneBeacon and Aviva were both affiliated members of the Commercial Union group of insurance companies (the two companies are no longer affiliated). The 1980 OneBeacon Policy was effective from March 28, 1980 through 22

April 1, 1981 and was identified as policy no. C8-9101-002. The Policy contained “Endorsement Number 4,” (the “1980 OneBeacon Endorsement Number 4?) which provides: “It is understood and agreed that this policy or any renewal thereof is 100% reinsured by [Aviva] policy number 6687287 effective 3/28/80 to 4/1/81.

Exceptions: This insurance differs from the policy which it follows in the following particulars: (a) Premium: $45,530 (Canadian Funds-Deposit) The Limit of Liability under either or both policies shall not exceed $1,000,000.00 as set forth in Policies 6687 and CL C8-9101-002 or any renewal policies issued by this Insurer.”

On November 26, 1980, Aviva issued to OneBeacon “reinsurance certificate No. 9009419? (the “Facultative Certificate”) for the “reinsurance term” of March 28, 1980 to April 1, 1981. The Facultative Certificate states that Aviva reinsures policy no. C8As Sam Goldwyn allegedly said 9101-002 (the 1980 OneBeacon back in the golden age of movies: Policy), and the reinsurance “Your oral contract ain’t worth premium listed is $45,530.00 the paper it’s printed on!” Canadian. The Facultative Certificate’s policy period was never extended, nor does a for automatic cancellations of the separate facultative certificate exist for any subsequent policy period. other policy.” The Facultative Certificate is the only Also on March 28, 1980, Aviva issued direct written agreement between an insurance policy (the “1980 Aviva Aviva and OneBeacon on the record. Policy”) to Harrisons & Crosfield (Canada) Ltd. (“Harrisons Canada”) Aviva sent the Facultative Certificate with the policy no. 6687287. The 1980 to OneBeacon via a letter dated Aviva Policy contains a “Differences in November 26, 1980, along with a Conditions Endorsement” (the “1980 check for $4,553 Canadian. The letter Aviva Endorsement”), which states: states: “Further to yours of July 1st, “In consideration of the premium 1980. Attached is our Reinsurance charged, the Insurer agrees that this Certificate along with our cheque in policy is placed in conjunction with the amount of $4,553.00 Canadian and reinsures Policy No. CL C8-9191- being your override commission 002 issued by [OneBeacon], or any of 10% of the premium which was renewal thereof, in respect of: Insured: $45,530.00 Canadian.” Harrisons & Crosfield(America)Inc., In 1981, OneBeacon issued a policy to Harrisons & Crosfield(Pacific)Inc. Harrisons US, effective April 1, 1981 to It is further agreed that cancellations of this policy C8-9101-002 or any renewal thereof or policy 6687287 or any renewal thereof shall be reason

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April 1, 1982. Around the same time, Aviva issued an endorsement (the “1981 Aviva Endorsement”) to the 1980 Aviva Policy that extended the policy period from March 28, 1981 to March 28, 1982. Significantly, the 1981 Aviva Endorsement explicitly excluded Harrisons US from coverage under the 1980 Aviva Policy.

because the Facultative Certificate unambiguously stated that the term of reinsurance ended after April 1, 1981, Aviva did not reinsure the 1981 or 1982 OneBeacon Policies. The court further concluded that the other evidence on the record also suggested that Aviva reinsured only the 1980 OneBeacon Policy.

In 1998, OneBeacon received notice of lawsuits against Harrisons US for asbestos-related injuries. Based upon the coverage it issued to Harrisons US under the 1980, 1981, and 1982 OneBeacon Policies,

DISCUSSION

OneBeacon entered into a defense cost-sharing arrangement with Harrisons US’s other insurers for claims arising from the covered period. In November 2007, OneBeacon requested that Aviva fully indemnify OneBeacon for costs incurred in connection with the Harrisons US claims. Aviva responded that it would reimburse OneBeacon for only one-third of defense expenses and indemnity payments. On February 2, 2010, OneBeacon filed suit against Aviva in the U.S. District Court for the District of Massachusetts. OneBeacon sought a declaration that Aviva had a contractual obligation to reinsure the 1980, 1981, and 1982 OneBeacon Policies issued to Harrisons US, and also sought damages for Aviva’s alleged breach of contract. On June 24, 2011, OneBeacon and Aviva filed cross-motions for summary judgment. On August 18, 2011, the district court denied OneBeacon’s motion and granted Aviva’s. The court pointed out that the Facultative Certificate was the only contract on the record between the two parties. The court then held that www.underwritersinsider.com

Under Massachusetts law, and that of almost every state, the insured bears the burden of demonstrating that a claim falls within a policy’s affirmative grant of coverage. It is OneBeacon’s burden to prove that Aviva agreed to reinsure the 1981 and 1982 OneBeacon Policies. The 1981 Aviva Endorsement explicitly changed the scope of Aviva’s obligations. The Differences in Condition Endorsement in the original 1980 Aviva Policy stated that Aviva would reinsure OneBeacon’s coverage to Harrisons US. However, the 1981 Aviva Endorsement stated that Harrisons US was “specifically excluded from this policy which shall not inure to [its] benefit in any way”. The fact that there is no Facultative Certificate between Aviva and OneBeacon for the second and third policy years suggests that the relationship between the two companies changed after the first year. Secondly, and most importantly, the evidence regarding the flow of premium payments supports the view that Aviva terminated its reinsurance obligation after the first year. In the first year, in which both parties agree that Aviva reinsured OneBeacon, Aviva received a premium payment of $45,530 Canadian and remitted a 10% fee to OneBeacon.

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Moreover, the OneBeacon ledger shows that there was a reinsurer for the 1980 OneBeacon policy – identified with the code “C44.” In the second year, however, the OneBeacon ledger reflects that OneBeacon directly received the full $24,000 U.S. premium payment. Furthermore, the ledger does not indicate that there was a reinsurer for the 1981 or 1982 OneBeacon Policies. Further, OneBeacon has not pointed to any evidence that it shared the secondor third-year premium with Aviva. OneBeacon was, therefore, asking the First Circuit reach a result that OneBeacon kept all of the premiums for the 1981 and 1982 policy years, but that it bore none of the risk. Because there is no evidence that Aviva agreed to provide reinsurance beyond the term of the first policy year, OneBeacon is not entitled to judgment as a matter of law. Since it is OneBeacon’s burden to prove Aviva’s reinsurance obligation, which OneBeacon cannot do, summary judgment for Aviva was appropriate. Accordingly, we affirm the grant of summary judgment to Aviva.

ZALMA OPINION Insurance companies, when dealing with reinsurance, like insureds dealing with insurance should know that for insurance to be effective it must be in writing. As Sam Goldwyn allegedly said back in the golden age of movies: “Your oral contract ain’t worth the paper it’s printed on!” A person suing on a contract of insurance must, primarily, be able See Zalma: The Insured’s Burden Pg 35 23

WHEN LIFE OFFERS OPPORTUNITIES HOW WILL YOU REACT?

uccessful agents are always on the lookout for opportunities, and when life gives them an opportunity they don’t waste time grabbing it with both hands. The life insurance marketplace offers some outstanding opportunities for forward-thinking agents and financial advisors. Here are three major opportunities for the second half of 2012 and beyond.

Product Mis-Pricings The insurers have been slow to reprice their life product portfolios to reflect the current low interest rate environment. In a recent survey, a strong majority of insurance company 24

CFO’s said they can’t sell profitably in a expect low sustained low interest interest rates rate environment. to persist for three to five In the past few months years. Advisors we’ve seen insurers who identify establish restrictions on significantly the amount of premium underpriced they will allow in certain products products, upward can create repricing of products real value that were significantly for clients by underpriced compared guiding them to the rest of the market, Matthew A. Treskovich to products and even a major being sold at term insurance company uneconomic prices. The window abandoning terms over 20 years. for taking advantage of these Clients have a limited time to take opportunities is short, as more carriers move to pull products that they See Treskovich Page 34

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The INSIDER’S

“The Final Authority on Everything!” What’s Your Fair Share?

’m a second generation independent agency owner. Frankly, my family has been well rewarded financially by our insurance business and although there has been many a 70-hour week - I feel it’s all been worth it. My question concerns income taxes. It seems the nightly news rarely passes without candidate Obama claiming I (and others in my income range) are not paying our “fair share.” Last year my income taxes alone exceeded six-figures. How much more do I have to pay before I get a thank you note from the bottom 50% of taxpayers who pay nothing? Thanks for the Insider - we find it a valuable and interesting resource in our offices. - S.J. Atlanta, GA Candidate Obama’s “hate the rich” rhetoric is designed to garner the votes of his core constituency - both the recipients of ever-growing government entitlements and guilty, confused, rich liberals who feel they’ve only gotten ahead because of roads and bridges that someone else built. When you rob Peter to pay Paul, you’ll always get Paul’s vote. In truth there is nothing “fair” about our tax code. Nearly 50% of all Americans don’t pay any income tax at all - up drastically (from about 40%) when Obama took office.

ADVISOR

While half the population pays nothing, the upper 5% of income earners pay a whopping 57% of the tax burden - and must listen to their president castigate them for failing to “step up and pay their fair share” while doing so. Surveys show a massive accumulation of ignorance among the general pubic on who pays the taxes in this country. Many people truly believe that the “rich” pay little in income tax and are living off the backs of the poor and middle class while the opposite is true.

So how does multimillionaire candidate Obama maintain a straight face while demonizing the rich? It’s obvious that our president is a committed redistributive socialist. In his heart of hearts, he seems to view the most successful of us much as

Have a question for The Advisor?

Click HERE! he sees the country: Undeserving. Its why Obama constantly refers to successful Americans as simply “fortunate,” as if they’ve won the lottery; as if they’ve come by their success by sheer luck; as if they’ve done nothing more than the least of us and woke one morning wealthy. In a recent campaign speech, Obama revealed more than he probably wished about successful business people: “I’m always struck by people who think, well, it must be because I was just so smart. There are a lot of smart people out there. It must be because I worked harder than everybody else. Let me tell you something — there are a whole bunch of hardworking people out there.”

By design, the nation is being divided into two groups: The makers and the takers. The percentage of the nontaxpaying public jumped from only 14.8% in 1984 to 49.5% in 2009. By now, it probably exceeds 50% by a significant margin.

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CLASSIFIEDS

FREE CLASSIFIED RULES: Submit all ads online at: www.underwritersinsider. com/classifieds. Ads must be less than 501 characters plus a title line. Eligible free classifieds include help wanted, position wanted, personal ads, agency for sale/purchase, or the one-time sale of an item or items. REGULAR CLASSIFIED RULES: Submit all ads online at: www. underwritersinsider.com/classifieds. Only $1.00 per word, including title line and response info. Payment must be received prior to print date.

Commercial P&C Sales

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Don’t just sell your book of business and loose income. Why not merge and keep your client base. Contact: Peralta Insurance We have been in business for over twelve years, and have a large book of business and looking to expand. We carry all forms of insurance including; Health, Life, Commercial, Auto, Home, and many more. 12039 sw 132ct Miami Fl 33186 305-969-6960 peralta_ins@ bellsouth.net 9-5

or Underwriting Position Wanted Tampa,FL Area

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Coral Springs, FL Experienced 2-20 Agents Experienced P & C Agents required for a Coral Springs office. Good commission and renewal offered. Contact: tamiller91@yahoo.com

Independent Agency For Sale or Merger Location is in North Florida area. $150,000 Firm. Email For More Info: portmgr@comcast.net

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AGENCY FOR SALE Very profitable Personal & Commercial Lines agency for sale in southwest Florida. Owner re-locating and very motivated to sell. Close to $300,000 in commissions with over 2500 clients. Good mix of auto,homeowners and commercial clients. Call Raj at 239-699-7047 9-4 26

220 Producer Anywhere in Florida Well established commercial agency specializing in the realm of workers’ comp seeks producer. You can be located anywhere in Florida. Excellent commission splits - training and leads. Other commercial markets also available - GL, etc.Contact: pcbizbuyer21@gmail.com 9-5

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HERE 2-20 Producers Wanted: Miami Westchester Area

Looking for Personal & Commercial Lines producers. Salary plus commission!!! Rapidly expanding ageny. Please contact us via email or call Yudanis or Luis @ 305-225-955 or: yudanis@optioninsurancesolutions.com

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Looking to Expand Book of Business

Looking to buy independent books in Hillsborough County, Florida, full or in part. Please contact me for a confidential discussion.

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Nationwide Agency Owner E.Bay Area, CA We need talented, businessminded individuals interested in our Future Agency Owner opportunity located in San Ramon OR Walnut Creek, CA market. What Nationwide Offers • Base salary, commissions and limited benefits for the first 18-24 months • Up to $95K in financial support upon graduation to offset agency start-up costs • Extensive sales and product training opportunities • Dedicated support •To apply: http://tinyurl.com/bn7w2rx 9-5

"Socialism is the philosophy of failure, the creed of ignorance and the gospel of envy. Its only inherent virtue is the equal sharing of misery." - Winston Churchill

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FREE CLASSIFIEDS HERE Foreign Insurance Organization Wanted Part-time position wanted to represent, administrate or manage London or other foreign insurance organization in any U.S. states. I have all state insurance licenses required. Contact:dnmiweiss@yahoo.com 9-6

Franchised Insurance Agency For Sale Well Est. Florida 2-20 Licensed and Franchised General Insurance Agency. Owner consolidated 2 locations into one in 2012 reducing expenses & increasing profits as a result. Pre-qualified for SBA Lender Financing w/ $81,250 Down. Terms are approximate. Asking $325K. Contact Corporate Investment Business Brokers | (239) 936-1718 | www.floridabusinessbrokers.com 9-5

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IMPORTANT! You may also place FREE position-wanted classified ads in this section. Just click on the link below and fill out the simple form and we’ll get you online.

HERE! Profitable Independent Agency For SALE Kissimmee Area

Profitable agency , with low overhead expenses in Central Florida (Kissimmee Area). Motivated Seller. Email: Essie.noboa@gmail.com

9-7 27

“The independent agent is an incredibly resilient

creature. So many times, the small Mom and Pop independent agent has been counted out, but they just keep adapting and changing and finding ways to be important to their customer. I think it is going to happen in this.” - Andrew C. Harris, president of Liberty Insurance Associates in Millstone, N.J. and president-elect of the National Association of Professional Insurance Agents optimistic that health insurance agents may be able to survive the drastic commission cuts required by Obamacare while having to comply with a truckload of new regulations and paperwork.

“We see that in this past month, according to the Bureau of Labor Statistics and the Social Security Administration, more Americans signed up for Social Security disability (85,000) than jobs were created (80,000). Since June 2009, while the Obama Administration claims 2.4 million jobs have been created, there have been 3.1 million Americans going on Social Security disability in the same timeframe. Let us not forget, under this Administration, unemployment benefits were increased from 26 weeks to 99 weeks. When economic policies are failing, the solution is not to throw up our hands and simply dole out more benefits. The solution is to change policy. Instead, poverty rolls have increased by almost seven million Americans since 2009. Food stamp rolls (the Supplemental Nutrition Assistance Program, or SNAP) have grown from 32 million to 46 million, a 45 percent increase. We now even have a federal government using American taxpayer dollars to promote individuals enrolling on food stamps… unconscionable! We have the lowest job participation rate that America has seen in 31 years at 63.7 percent. And we now have had 41 months of unemployment above eight percent -- the longest running high rate since the Great Depression. Yet, President Obama 28

states, “We are on the right track.” Sure we are, if your dream and desire is to economically enslave the American people and collectively subjugate them to government dependency.” - Congressman Allen West (R) 22nd District - Florida. A proud, powerful, brutally honest, representative of the American Conservative movement - simply telling the truth - an ability long lost and now completely foreign to the pathetic political left, who’s every utterence can be counted on to be a gross distortion of the truth, or, an outright lie.

“Members of this Court are vested with the authority

to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.” - Chief Justice John Roberts in his disappointing ruling on the personal mandate required by Obamacare under the power of the congress to regulate under the commerce clause of the U.S. Constitution. Roberts handed Obama a win by arguing on behalf of the government that the penalty for failing to purchase insurance could simply be deemed a tax rather than a penalty. Robert’s controversial ruling seems to give the government unlimited power to regulate even the inactivity of individuals via it’s power to tax.

“If you’ve got a business, you

didn’t build that. Somebody else made that happen.” - President Barack Hussien Obama - in a campaign speech delivered in Roanoke, Virginia in midJuly. This unbelievable assertion by a man who has never held a real job, who has never run a business, much less started one, displays not only incredible arrogance, but a distain for every American business owner while at the same time reaffirming his believe in the primacy of government. One can only speculate on the amount of disconnect through which the President views the American entrapreneur - the backbone of our free enterprise system.

“BTW, if a business goes under, does the government

give you a refund? Nope! - SNL Commediene Jon Lovitz who was subsequently attacked by the vocal political left for daring to deviate from the Hollywood/Celebrity practice of slobbering support for the president.

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2005 Issue 5 31

FLORIDA ANNOUNCES ARRESTS IN ‘OPERATION DIRTY MONEY,’ WORKERS’ COMP FRAUD CHECK CASHING SCHEME

ALLAHASSEE – Florida said. “Now we will be able to use owned by Nilbala and Kanti Patel, Chief Financial Officer the illegal funds seized from the bad was the first one used by Rodriguez Jeff Atwater and Broward guys, through our Law Enforcement and his associates. The Patels are set Sheriff Al Lamberti announced Trust Fund, and give it to the good to enter into plea agreements with multiple arrests in “Operation Dirty guys.” Attorney General Pam Bondi’s Office Money,” an investigation conducted of Statewide Prosecution, and have by the recently formed Workers’ "I am grateful to all of the partnering agreed to the immediate forfeiture of Compensation Fraud Task Force, agencies who have brought down a over $490,000 in illicit proceeds seized which has to date netted more than workers' compensation fraud ring. during the search of their business in $140 million in fraudulent transactions My Office of Statewide Prosecution September of 2011. associated with 12 shell companies. will prosecute these individuals The task force, created jointly by and ensure that justice is served," Arrests of these individuals were the Florida Department of Financial Attorney General Pam Bondi made in multiple counties including Services’ Division of Insurance said. "I congratulate the Workers' Broward, Miami-Dade, Palm Beach Fraud (DIF) and the and Polk. Attorney Broward Sheriff’s Office General Bondi’s Office of By using shell companies, Rodriguez was (BSO), charged eight Statewide Prosecution able to run a large construction operation individuals with workers’ and Miami-Dade State and avoid paying the cost of workers’ compensation fraud and Attorney Katherine compensation coverage, leaving employees at money laundering for Fernandez-Rundle will risk and scamming legitimate businesses. their involvement in a prosecute the arrested large-scale check cashing individuals. scheme to evade the cost of workers’ Compensation Fraud Task Force for a compensation coverage. CFO Atwater convened a work job well done." group in August 2011 to review the “This kind of fraud is diverting nearly During the joint investigation it practices of certain bad actors in $1 billion from Florida’s economy was revealed that Hugo Rodriguez, the check cashing services industry annually and is putting honest small owner of the Oto Group, Inc., was who were aiding in complex workers’ businesses and employees at risk,” the "ring leader” of seven individuals compensation premium fraud CFO Atwater said. “I am proud of the and the facilitator of 10 known shell schemes such as this one. The work diligent efforts of my insurance fraud companies that funneled in excess group released its report in November, detectives, Sheriff Lamberti and his of $70 million in undeclared and recommending reforms to combat team here at the Broward Sheriff’s undetected payroll through different this scheme to the Legislature. Office, and the prosecutors who have money service businesses. By using Championed by Sen. Thrasher and come together to make this joint shell companies, Rodriguez was able Rep. Davis during the 2012 Legislative fraud task force a success.” to run a large construction operation Session, reforms equipped regulators and avoid paying the cost of workers’ and law enforcement officials with “Through collaborative efforts compensation coverage, leaving critical tools, including the ability to between BSO and our state law employees at risk and scamming make unannounced examinations enforcement partners in the Workers’ legitimate businesses. Compensation Fraud Task Force, we were able to shut down a prolific K & N Food Corp., a licensed money See Worker’s Comp Fraud Pg 35 criminal enterprise,” Sheriff Lamberti service business in Palm Beach County

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ZALMA

presenting a choking risk) from any other quesadilla or, for that matter, any food that requires chewing before swallowing.

The Court of Appeal concluded that the commission correctly concluded Bernard’s choking injury occurred in the course of his employment since The Workers’ Compensation Act applies TGIF provided the quesadilla, and when the claimant satisfies both the Bernard tried to eat it to be a better “arising out of” and the “in the course of” waiter. However, the Court of Appeal prongs of the statutory requirements found that the commission was of compensability. The concepts also right to conclude the injury did “arising out of” and “in the course of” not arise out of an actual risk of the employment are not synonymous and employment. The quesadilla was not both conditions must be proved before a hazard or danger, much less one compensation will be awarded. peculiar to TGIF. Swallowing partially chewed food was a risk Bernard faced Virginia follows the actual risk doctrine equally on and off the job. Nothing which excludes an injury which comes about the TGIF quesadilla or Bernard’s from a hazard to which the employee work environment increased that risk. would have been equally exposed apart from the employment. An actual risk of ZALMA OPINION employment is not merely the risk of being injured while at work. The first premise of the actual risk doctrine requires a hazard or danger not equally present apart from the employment but rather one peculiar to the work. Without this precondition, any injury – of any kind no matter the cause – would be covered by the Workers’ Compensation Act. This would be unfair to employers. http://www.zalma.com/zalmabooks.htm

BASIC ARISING-OUT-OF PRINCIPLES

THE COMMON AND UNPECULIAR QUESADILLA Bernard’s quesadilla was neither a hazard nor a danger – it was simply a quesadilla. No evidence suggested it had unusual properties or was made with defective ingredients. It could not be distinguished (for purposes of www.underwritersinsider.com

Workers’ compensation insurance is a no fault system to compensate people who are injured while working and eliminate the need of employees to sue their employers. It is a very broad coverage and serves employees and employers well.

benefits for every injury that might happen at work. As this case in Virginia shows the employee, to recover workers’ compensation benefits must result from an actual risk of injury not equally present apart from the employment but rather one peculiar to the work. If Mr. Bernard had made and eaten a quesadilla at home and failed to properly chew it he would face the same potential for injury as that suffered when he failed to properly chew a quesadilla provided to him by his employer. © 2012 – Barry Zalma Barry Zalma, Esq., CFE, has practiced law in California for more than 40 years as an insurance coverage and claims handling lawyer. He also serves as an insurance consultant and expert witness specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud. Mr. Zalma serves as a consultant and expert, almost equally, for insurers and policyholders. He founded Zalma Insurance Consultants in 2001 and serves as its senior consultant. Mr. Zalma recently published the e-books, “Zalma on Insurance Fraud – 2012?; “Zalma on Diminution in Value Damages – 2012,”“Zalma on Insurance,” “Heads I Win, Tails You Lose — 2011,” “Zalma on Rescission in California,” “Arson for Profit” and others that are available at www.zalma.com/ zalmabooks.htm.

Mr. Zalma can also be seen on World Risk and Insurance News’ web based television program “Who Got Caught” As this case shows workers’ with copies available at his website at compensation does not provide http://www.zalma.com.

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TRESKOVICH: WHEN LIFE OFFERS OPPORTUNITIES advantage of the very good deals that remain in the marketplace.

New Attitudes One of the traditional criticisms of fixed insurance products is that they tend to underperform equities. Insurance companies are traditionally very conservative investors. The products offered by insurers can’t provide returns in excess of what the insurers earn (or the insurers would lose money). As a result, life insurance products have been criticized as lacking the potential upside of other investments. In an era of reset expectations for returns, a new awareness of the risks inherent in the stock market and even “safe” instruments like mortgages, and historically low interest rates, fixed and indexed life insurance products are poised to make a comeback as wealth accumulation and retirement savings vehicles.

supplement to traditional retirement savings vehicles, with the added benefit of being self-completing and tax-advantaged on the death of the insured.

New Marketing Programs Most insurers have a strong desire for new sales and premium growth. Over the past decade, product distribution has strongly shifted toward independent distribution via brokerage general agencies

These are just three of the opportunities I see for agents and advisors who write life insurance. What are the biggest opportunities you see through the end of this year and into next year? Send me an email at Info@LifeAgents.com with your thoughts! Creekmore Insurance Group is a full-service life insurance brokerage specializing in complex life cases and impaired risks. Creekmore serves independent agents and financial advisors across the country. Matt is the CFO and oversees advanced case designand underwriting. He can be reached via email Matt@ LifeAgents.com or at 800-9360339. For more information, visit www.LifeAgents.com

The federal government’s deteriorating fiscal picture, and the prospect of higher taxes in the near future, will add to the attractiveness of income tax deferred cash accumulation inside life insurance policies and income tax free death benefits. A properly structured life insurance program can be an extremely tax-efficient 34

and away from career, captive, and direct / personally producing general agent models. In their quest for new premium, several insurers who distribute product via BGAs are experimenting with sales and marketing programs to help independent agents attract and retain retail clients. These marketing programs are a new benefit for independent agents and brokers and could make the difference between success and failure. Even independent agents who don’t want insurer-sponsored marketing should pay attention to this trend. Failure to take advantage of these programs could result in an agency’s client base being solicited by a competitor using the resources of a common insurer.

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ZALMA:THE INSURED’S BURDEN to present to the court a written contract. OneBeacon failed to present a contract. OneBeacon failed to show it paid premium for more than the first year. The court destroyed One Beacon’s case as follows: OneBeacon would have this Court reach a result that OneBeacon kept all of the premiums for the 1981 and 1982 policy years, but that it bore none of the risk. Such a conclusion would defy economic sense. The lessons taught by this case include the following: Don’t sue on a contract that you cannot produce. Be certain, before filing suit, that you can carry the burden of demonstrating that a claim falls within a policy’s affirmative grant of coverage. Only make arguments to a court that make economic sense.

© 2012 – Barry Zalma Barry Zalma, Esq., CFE, has practiced law in California for more than 40 years as an insurance coverage and claims handling lawyer. He also serves as an insurance consultant and expert witness specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud. Mr. Zalma serves as a consultant and expert, almost equally, for insurers and policyholders. He founded Zalma Insurance Consultants in 2001 and serves as its www.underwritersinsider.com

senior consultant. Mr. Zalma recently published the e-books, “Zalma on Insurance Fraud – 2012?; “Zalma on Diminution in Value Damages – 2012,”“Zalma on Insurance,” “Heads I Win, Tails You Lose — 2011,” “Zalma on Rescission in California,” “Arson for Profit” and others that are available at www.zalma.com/ zalmabooks.htm. Mr. Zalma can also be seen on World Risk and Insurance News’ web based television program “Who Got Caught” with copies available at his website at http://www.zalma.com.

Continued From Page 32

WORKER’S COMP FRAUD and outlawing the possession of thumbprint stamps or other items used to forge payment authorization. New provisions are helping detect workers’ compensation insurance fraud more quickly, protecting the honest players in the marketplace while ensuring those responsible for diverting more than a billion dollars from Florida’s economy are caught and held accountable.

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The Workers’ Compensation Fraud Task Force was jointly created by CFO Atwater’s Division of Insurance Fraud and Sheriff Lamberti’s office in August of 2011. Through joint efforts, the task force has been able to successfully shut down 12 shell companies and identify $140 million in fraudulent transactions associated with these companies.

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Experts and Consultants for Insurance Disputes 4441 Sepulveda Boulevard Culver City, California 90230 310-390-4455 zalma@zalma.com http://www.zalma.com

Consultation from Zalma Insurance Consultants (ZIC) can save you or your client thousands of dollars in the defense or prosecution of an insurance dispute. ZIC provides expert advice and counsel insurers and plaintiffs’ counsel find indispensable. Consultation from ZIC can save you, your counsel or client hundreds of hours of investigative and legal work. ZALMA INSURANCE CONSULTANTS is a service of Barry Zalma, Inc. a California professional corporation. Barry Zalma is an internationally recognized expert on insurance coverage, insurance claims handling, insurance bad faith, insurance fraud detection, the defeat of false and fraudulent claims, Barry Zalma, Esq. insurance claims handling, and the resolution of insurance disputes. As a consultant, expert witness, lawyer, author, mediator or arbitrator he serves all parties who need consultation or expert testimony on matters relating to insurance coverage, insurance claims handling, insurance fraud and the tort of bad faith. Barry Zalma founded Zalma Insurance Consultants to help resolve any insurance claim problem faced by you or your clients that do not need Mr. Zalma’s services as a lawyer. His experience and skill as a consultant and expert witness can make the difference before a jury or other trier of fact. For more than 44 years as a claims person and insurance coverage attorney, Barry Zalma has represented insurers, advised insurers on claims handling, interpreted coverages and testified as an insurance coverage, insurance bad faith, insurance claims handling and insurance fraud expert on behalf of insurers and policyholders in state and federal courts.

Expert Testimony

Zalma Insurance Consultants serves insurers, policyholders, underwriters, brokers, agents, adjusters, public insurance adjusters, lawyers and any person involved in an insurance dispute. Because he is an attorney licensed to practice law in the state of California M r. Zalma may be prohibited by California case law from acting as a consultant or expert witness and, therefore, refuses to serve in any situation where a past client of his law firm, Barry Zalma, Inc. is adverse to anyone seeking his services.

Y ou can obtain M r. Zalma’s C.V . at http://www.zalma.com and his e-book publications http://www.zalma.com/zalmabooks.htm and blogs daily at Zalma on Insurance, http://zalma.com/blog.

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KIM KOMANDO and its competitor Glancee, were the darlings of the tech world at last spring’s South by Southwest Interactive festival in Austin, Texas. Last month, Facebook gobbled up Glancee and its engineers, in an effort to beef up its mobile capabilities.

IRMI Orlando Conference Announced

Network. All rights reserved. Kim Komando hosts the nation’s largest talk radio show about consumer electronics, computers and the Internet. To get the podcast, watch the show or find the station nearest you, visit: http://www.komando.com/ listen. To subscribe to Kim’s free email newsletters, sign-up at: http://www. komando.com/newsletters.

Obviously, some serious influencers believe that this is a wave worth a sizeable investment. This raises an important question: What are these apps doing with all your private information? They vow to protect your personal data, and say they only share non-identifiable, aggregated information. But companies get hacked and startups get bought out. Privacy policies change. No one wants a repeat of the scandal that erupted earlier this year, when it was discovered that Path and other social apps were stealing phone numbers and addresses from smartphone users’ contacts. Developers will have to address personal safety and privacy concerns before ambient social networking apps can make the leap to mainstream. If they want to win over even the early adopters, they’ll also need to hope for radical improvements in smartphone battery life. Right now, the apps’ constant use of GPS in the background drains batteries faster than users can text out their initial, “Where are you?” Copyright 2012, WestStar TalkRadio www.underwritersinsider.com

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