Bill Text: NY A10275 | 2011-2012 | General Assembly | Introduced

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Bill Title: Regulates claims settlement communications between liability insurers and unrepresented claimants.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2012-05-17 - referred to insurance [A10275 Detail]

Download: New_York-2011-A10275-Introduced.html

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                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         10275
                                 I N  A S S E M B L Y
                                     May 17, 2012
                                      ___________
       Introduced by M. of A. LAVINE -- read once and referred to the Committee
         on Insurance
       AN  ACT  to  amend the insurance law, in relation to unfair claims prac-
         tices
         THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section  1.  Section  2601 of the insurance law is amended by adding a
    2  new subsection (a-1) to read as follows:
    3    (A-1) (1) NO REPRESENTATIVE OF AN INSURER SHALL TAKE  ANY  WRITTEN  OR
    4  RECORDED  STATEMENT  FROM AN UNREPRESENTED CLAIMANT UNTIL AT LEAST SIXTY
    5  DAYS HAVE PASSED SINCE THE DATE OF THE EVENT GIVING  RISE  TO  A  CLAIM,
    6  EXCEPT IN A CLAIM WHICH IS FOR LOSS OR DAMAGE TO PROPERTY ONLY, OR AS IS
    7  PERMITTED BY THE WORKERS' COMPENSATION LAW. IN THE EVENT THAT AN INSURER
    8  VIOLATES  THIS  PARAGRAPH,  THE STATEMENT SHALL BE INADMISSIBLE AT TRIAL
    9  AND SHALL NOT BE USED DURING ANY COURSE OF THE CAUSE OF ACTION  FOR  ANY
   10  PURPOSE,  EXCEPT  IF  BENEFICIAL TO THE CLAIMANT.  IF AN INSURER TAKES A
   11  WRITTEN OR RECORDED STATEMENT  AFTER  THE  PROHIBITED  TIME  PERIOD  HAS
   12  EXPIRED,  IT  SHALL ADVISE THE CLAIMANT OF HIS OR HER RIGHT TO REFUSE TO
   13  GIVE THE STATEMENT AND THE RIGHT TO SEEK ADVICE FROM  COUNSEL  REGARDING
   14  THE REQUEST FOR SUCH STATEMENT. A COPY OF THE TRANSCRIPT OF ANY RECORDED
   15  STATEMENT  SHALL  BE  PROVIDED TO THE CLAIMANT WITHIN THIRTY DAYS OF THE
   16  DATE OF THE RECORDING.
   17    FOR THE PURPOSE OF THIS SUBSECTION THE TERM "REPRESENTATIVE" MEANS ANY
   18  REPRESENTATIVE WORKING FOR OR ON BEHALF OF A LIABILITY INSURER, SELF-IN-
   19  SURED ENTITY OR THIRD PARTY  CLAIMS  ADMINISTRATOR  INCLUDING,  BUT  NOT
   20  LIMITED  TO  ALL EMPLOYEES, AGENTS, INDEPENDENT CONTRACTORS AND INVESTI-
   21  GATORS IN ANY SITUATION REGARDING AN ACCIDENT  WHERE  THE  LAWS  OF  THE
   22  STATE  APPLY,  EXCEPT  THAT  REPRESENTATIVES HANDLING CLAIMS PURSUANT TO
   23  ARTICLE FIFTY-ONE OR FIFTY-TWO OF THIS CHAPTER  ARE  EXPRESSLY  EXCLUDED
   24  FROM  THIS  SUBSECTION WITH REGARD TO THEIR OWN CLAIMANTS. HOWEVER, SUCH
   25  REPRESENTATIVES ARE REQUIRED TO ADVISE APPLICANTS  THAT  THEY  HAVE  THE
   26  RIGHT TO SPEAK TO AN ATTORNEY BEFORE GIVING A STATEMENT.
   27    (2)  A  REPRESENTATIVE  SHALL NOT SETTLE A CLAIM WITH AN UNREPRESENTED
   28  CLAIMANT UNLESS IT IS FOR THE FULL POLICY LIMITS (INCLUDING  ANY  EXCESS
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD15474-03-2
       A. 10275                            2
    1  COVERAGE)  UNLESS MORE THAN SIXTY DAYS HAVE PASSED SINCE THE DATE OF THE
    2  EVENT GIVING RISE TO THE  CLAIM.  IF  THERE  IS  SUPPLEMENTAL  UNINSURED
    3  MOTORIST COVERAGE AVAILABLE TO THE CLAIMANT, THE SETTLING REPRESENTATIVE
    4  MUST  FIRST OBTAIN THE SUPPLEMENTAL UNINSURED MOTORIST INSURER'S WRITTEN
    5  CONSENT TO SETTLE ON BEHALF OF THE CLAIMANT. ANY SETTLEMENTS MADE DURING
    6  THE PROHIBITED TIME PERIOD THAT DO NOT MEET THE AFOREMENTIONED  CRITERIA
    7  ARE  VOIDABLE  BY  THE CLAIMANT AND UNENFORCEABLE BY THE INSURER. AT THE
    8  OPTION OF THE CLAIMANT, THE SETTLEMENT SHALL BE VOIDABLE TO  THE  EXTENT
    9  THAT  IT  PREJUDICES  ANY  RIGHTS  OF THE UNREPRESENTED CLAIMANT AND ALL
   10  SUPPLEMENTAL UNINSURED MOTORIST INSURERS COVERING THE CLAIMANT  FOR  THE
   11  SUBJECT EVENT GIVING RISE TO THE CLAIM.
   12    (3)  DURING  ALL  COMMUNICATIONS  WITH UNREPRESENTED CLAIMANTS, BEFORE
   13  ASKING ANY CLAIMANT ANY QUESTIONS AT ALL, THE REPRESENTATIVE SHALL  READ
   14  THE  CLAIMANT  A STATEMENT ADVISING HIM OR HER OF THE RIGHT TO REFUSE TO
   15  SPEAK WITH THE INSURER AND ADVISING HIM OR HER OF THE RIGHT  TO  CONSULT
   16  AN  ATTORNEY.  THE FOLLOWING STATEMENT SHALL BE READ EACH AND EVERY TIME
   17  THE CLAIMANT IS CONTACTED. "YOU HAVE THE RIGHT TO CONSULT WITH AN ATTOR-
   18  NEY BEFORE SPEAKING TO ME OR PROVIDING ME WITH  ANY  INFORMATION,  DOCU-
   19  MENTS,  PHOTOGRAPHS,  WRITTEN  STATEMENTS,  RECORDED STATEMENTS OR OTHER
   20  EVIDENCE. THE PAYMENT OF YOUR  MEDICAL  BILLS  OR  THE  AVAILABILITY  OF
   21  LIABILITY COVERAGE IS NOT CONTINGENT UPON SPEAKING WITH ME."
   22    (4)  IN  THE  EVENT  THAT ANY SETTLEMENT IS MADE WITH AN UNREPRESENTED
   23  CLAIMANT AFTER THE PROHIBITED TIME PERIOD HAS PASSED, THE  CLAIMANT  MAY
   24  RESCIND  THE  SETTLEMENT  AGREEMENT  OR RELEASE BY NOTIFYING THE INSURER
   25  WITHIN THIRTY DAYS OF THE DATE OF THE RELEASE OR  SETTLEMENT  AGREEMENT.
   26  IN  ORDER  TO RESCIND THE AGREEMENT OR RELEASE, THE CLAIMANT MUST SEND A
   27  LETTER VIA CERTIFIED MAIL, RETURN RECEIPT  REQUESTED  TO  THE  REPRESEN-
   28  TATIVE.
   29    (5)  ANY OFFER TO SETTLE A CLAIM WITH, OR A RELEASE GIVEN TO AN UNREP-
   30  RESENTED CLAIMANT MUST CONTAIN THE FOLLOWING LANGUAGE IN BOLD AND  LARGE
   31  TYPE  SET  ADVISING  CLAIMANT  OF  THE RIGHT TO RESCIND AND THE RIGHT TO
   32  CONSULT WITH AN ATTORNEY BEFORE SIGNING THE RELEASE. IF IT DOES NOT,  IT
   33  IS  VOID AND UNENFORCEABLE. "YOU HAVE THE RIGHT TO REFUSE TO SETTLE YOUR
   34  CLAIM AND DESPITE SUCH REFUSAL TO SETTLE, YOUR MEDICAL BILLS WILL  STILL
   35  BE  PAID  AND  LIABILITY  COVERAGE WILL STILL BE AVAILABLE. YOU HAVE THE
   36  RIGHT TO CONSULT WITH AN ATTORNEY BEFORE NEGOTIATING  WITH  US  AND  THE
   37  RIGHT  TO DO SO BEFORE GIVING ANY WRITTEN OR RECORDED STATEMENTS, PHOTO-
   38  GRAPHS, DOCUMENTS OR ANY OTHER  EVIDENCE  TO  US."  ALL  RELEASES  SHALL
   39  CONTAIN  THE  FOLLOWING IN BOLD TYPE, WITH A SEPARATE SIGNATURE LINE FOR
   40  THE CLAIMANT: "THE SETTLEMENT OF THIS CLAIM FOREVER  BARS  THE  CLAIMANT
   41  FROM ANY FUTURE RECOVERIES RELATED TO THIS INCIDENT."
   42    (6)  IF  AN UNREPRESENTED CLAIMANT DOES NOT READ OR SPEAK ENGLISH, THE
   43  REPRESENTATIVE SHALL NOT ENGAGE IN ANY COMMUNICATIONS WITH THE  CLAIMANT
   44  UNLESS IT ENGAGES A CERTIFIED INTERPRETER TO COMMUNICATE WITH THE CLAIM-
   45  ANT.  THE  REPRESENTATIVE  SHALL  ALSO ADVISE THE CLAIMANT OF HIS OR HER
   46  RIGHTS AS OUTLINED IN THIS SUBSECTION, AND EXPLAIN THE CONDITION OF  ANY
   47  SETTLEMENTS  TO  THE  CLAIMANT. THE INTERPRETER SHALL SIGN AN AFFIDAVIT,
   48  WHICH IS NOTARIZED, REGARDING THE ACCURACY OF THE TRANSLATION,  AND  THE
   49  ORIGINAL  THEREOF  SHALL BE KEPT ON FILE FOR AT LEAST SEVEN YEARS, ALONG
   50  WITH THE LAST KNOWN CONTACT INFORMATION FOR THE INTERPRETER.
   51    S 2. This act shall take effect immediately and shall apply to  claims
   52  that are settled on or after such date.