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The Wednesday August 11, 2010 edition of the Los Angeles Daily Journal featured my article, entitled “The Waiver Doctrine, Alive And Well in ERISA Cases,” in the Perspective column. It explains a very recent case from the Ninth Cirhttp://www.dailyjournal.comcuit Court of Appeals in Mitchell v. CB Richard Ellis Long Term Disability Plan, 2010 DJDAR 11532 (9th Cir. July 26). The article is posted below with permission of Daily Journal Corp. (2010).

The Department of Health and Human Services issued new appeal regulations under the recently enacted Patient Protection and Affordable Care Act (“Affordable Care Act”). These regulations give claimants the right to appeal decisions made by their health plan to an outside, independent decision maker, regardless of what state they live in or what type of health coverage they have, i.e., both group and individual coverage. If a particular health plan or insurance is governed by a state law, the state regulations will apply as long as the protections offered to consumers is at least as strong as the National Association of Insurance Commissioners (“NAIC”) Model Act. At a minimum, the state external review process must provide:

External Review of plan decisions to deny coverage for case based on medical necessity, appropriateness, health care setting, level of care, or effectiveness of a covered benefit.
Clear information for consumers about their right to both internet and external appeals – both in the standard plan materials, and at the time the company denies a claim.
Expedited access to external review in some cases – including emergency situation, or cases where their health plan did not follow the rules in the internal appeal.
Health plans must pay the cost of the external appeal under State law, and States may not require consumers to pay more than a nominal fee.
Review by an independent body assigned by the State. The State must also ensure that the reviewers meet certain standards, keep written records, and are not affected by conflict of interest.
Emergency process for urgent claims, and a process for experimental or investigational treatment.
Final decision must be binding so, if the consumer wins, the health plan is expected to pay for the benefit that was previously denied.[1]

For plans governed by ERISA or not otherwise covered by a state law external appeal process, a federal external review program will be required. Since these are still interim rules, a framework for the federal external review process has not been established. However, the federal review process will likely be modeled along the NAIC Model Act.

These regulations are clearly a win for consumers who have long complained that the internal appeals process is biased towards insurance companies. Unfortunately, it will take some time for consumers to reap the benefits of these changes. Health plans that were in effect on March 23, 2010 and have not been significantly modified since then are considered “grandfathered” and not subject to these regulations. However, over time, expect to see an external review process become a standard component of the claim review process.

[1] Source: “Fact Sheet: The Affordable Care Act: Protecting Consumers and Putting Patients Back in Charge of Their Care,” dated July 22, 2010.

The Thursday August 5, 2010 edition of the Los Angeles Daily Journal featured my article entitled “Cell Phone Users Catch a Break,” in the Perspective column. It discusses the U.S. Copyright Office’s recent announcement regarding its decision to exempt wireless telephone handsets from the anti-circumvention provision under the Digital Millennium Copyright Act. The article is posted below with permission of Daily Journal Corp. (2010).

Commercial General Liability (“CGL”) policies that cover personal injury and property damage require CGL carriers to defend “suits,” typically defined to mean “a civil proceeding in which damages . . . to which this insurance applies are alleged.” A question arises as to whether the process prescribed by the Calderon Act (the Calderon Process) is a” civil proceeding” within this definition. The Calderon Act requires a common interest development association to satisfy certain dispute resolution requirements with respect to the builder, developer, or general contractor before the association may file a complaint in court for construction or design defects. (Civil Code § 1375, subd. (a)) Although the Calderon Process occurs before a complaint is filed and itself does not result in a judgment or court-ordered payment of money, the Calderon Process is an integral part of construction defect litigation initiated by a common interest development association. In a case of first impression, the Fourth Appellate District in Clarendon America Insurance Co. v. StarNet Insurance Co., __ Cal. App. 4th ___ (decided July 27, 2010) held that a CGL insurer has a duty to defend its insured in such proceedings.

Centex Homes (Centex) was the developer of a residential development in Simi Valley known as Westwood Ranch. In July 2006, the Westwood Ranch Homeowners Association, Inc., served a notice of commencement of legal proceedings pursuant to section 1375 et seq. (Calderon Notice) on Centex that set forth a list of alleged construction defects at Westwood Ranch.

WSM Transportation doing business as Sam Hill & Sons, Inc. (Sam Hill), was a subcontractor on the Westwood Ranch development. StarNet Insurance Company (StarNet) issued two successive policies of CGL insurance (the StarNet CGL policies) to Sam Hill effective from June 12, 2002 to June 12, 2004. The StarNet CGL policies’ insuring agreement provides: “[StarNet] will pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies.” The StarNet CGL policies’ defense agreement provides: “We will have the right and duty to defend the insured against any ‘suit’ seeking those damages. However, we will have no duty to defend the insured against any ‘suit’ seeking damages for ‘bodily injury’ or ‘property damage’ to which this insurance does not apply. We may, at our discretion, investigate any ‘occurrence’ and settle any claim or ‘suit’ that may result.”

The StarNet CGL policies define the word “suit” as follows: “‘Suit’ means a civil proceeding in which damages because of ‘bodily injury[,’] ‘property damage’ or ‘personal and advertising injury’ to which this insurance applies are alleged. ‘Suit’ includes: [¶] a. An arbitration proceeding in which such damages are claimed and to which the insured must submit or does submit with our consent; or [¶] b. Any other alternative dispute resolution proceeding in which such damages are claimed and to which the insured submits with our consent.”

Centex filed a cross-complaint against Clarendon America Insurance Co. (“Clarendon”) in 2007 seeking payment for defending against the proceeding initiated by WRHA. Clarendon in turn cross-complained against StarNet Insurance Co. (“StarNet”) claiming StarNet was obligated to provide a defense for Centex. StarNet moved for a summary judgment asserting the Calderon Action was not a suit within the meaning of the defense agreement in StarNet’s commercial general liability (“CGL”) policy.

The trial court denied StarNet’s motion for summary judgment and found for Clarendon for which StarNet appealed. StarNet argued the Calderon Process is not a suit within the meaning of their insurance policy.

The Court of Appeal held “The Calderon Process is mandatory: The Calderon Act prohibits an association from filing a complaint for construction or design defects until it satisfies all of the requirements of the Calderon Process.” Further, the court explained:

“The Calderon Process is more than a prelitigation alternative dispute resolution requirement: It is part and parcel of construction or design defect litigation initiated by an association and, as such, cannot be divorced from a subsequent complaint.”

This decision reached the correct conclusion. One has to wonder why an insurer would even challenge whether a defense was owed in these circumstances.

On July 21, 2010, President Obama signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act (H.R. 4173). The Act directs the U.S. Treasury Department to create a Federal Insurance Office (“FIO”) The FIO has the authority to monitor all aspects of the insurance industry, establish Federal policy on international insurance matters, serve as a liaison between the Federal government and the several States regarding insurance matters, and serve as an advisory to the Treasury regarding the export promotion of United States insurance products and services. The scope of the FIO’s authority extends to all lines of insurance, except health insurance. Also excluded from the FIO’s authority is long-term care insurance, except long-term care insurance that is included with life or annuity insurance components.

This is a departure from an earlier bipartisan proposal by Congressmen Ed Royce (R-Calif.) and Melissa Bean (D-Ill.) that would have enacted a federal insurance charter designed to mandate a national framework of state based regulation or market conduct, licensing, the filing of new products and reinsurance.

The FIO is seen as a “win” by many State Insurance Commissioners who had been advocating for closer collaboration with the federal government in the regulation of insurance companies.

Dodd-Frank Wall Street Reform and Consumer Protection Act

The Thursday July 17, 2010 edition of the San Francisco Daily Journal featured my article, entitled “The Continuous Injury Trigger: A Cat-and-Mouse Game,” in the Perspective column. It explains a recent case from the California 4^th Appellate District which rejected a CGL insurer’s attempts to apply a “double trigger” to narrow the “continuous injury trigger” based on the standard “occurrence” definition in a CGL policy. The article is posted below with permission of Daily Journal Corp. (2010).