Regulation of Surplus Lines

December 4, 2005

Montana House Bill 631
(Signed into law on April 8, 2005)

Regulation: This law relates to the revision of surplus lines insurance law and provides that a policy may not be placed with an unauthorized insurer unless the premium rate is higher by a specified percentage and amount. It also requires the unauthorized insurer to be A- rated or better. The law was chaptered, Chapter No. 191.

Revision of the Securities and Insurance Laws

Montana Draft 160
(Draft introduced on July 7, 2004)

Regulation: The draft of this law revises the securities and insurance laws to include securities registration and examinations, life insurance and annuities, surplus lines producer fees and producer background checks and continuing education, rental vehicle entity insurance reporting and compliance requirements, health insurance portability and accountability, group insurance policies, newborn coverage, insurance conversion requirements, captive insurers and comprehensive health associations. The law has been assigned House Bill No. 188.

Child-Care Facility Insurance

Oregon House Bill 2254
(Signed into law on Sept. 2, 2005)

Regulation: This law modifies the definition of a child care facility for purposes of obtaining liability insurance coverage to include a private child-caring agency run by a state-licensed nonprofit agency that provides psychiatric intensive day treatment services and residential care; provides that the insurance obtained may not cover theft or bodily injury and property damage arising out of operation of a motor vehicle by a child resident of the facility or agency. The law was chaptered, Chapter No. 798.

Oregon/Professional Liability Fund

Oregon Senate Bill 446
(Introduced on Feb. 2, 2005)

Regulation: This bill authorizes the Board of Medical Examiners for the State of Oregon to establish a professional liability fund for certain medical professionals licensed under ORS chapter 677; authorizes assessments for the fund; excludes the fund from Insurance Code; exempts certain records from disclosure; requires the board to establish a state physician assistance committee; and allows the board to create local physician assistance committees and personal and practice management assistance committees. The bill passed the Senate and was referred to the House Committee on State and Federal Affairs.

Medical Malpractice Limits

Washington Senate Bill 6087
(Introduced on Mar. 15, 2005)

Regulation: This law relates to improving health care by increasing patient safety, reducing medical errors, reforming medical malpractice insurance and resolving medical malpractice claims fairly without imposing mandatory limits on damage awards or fees. The law was referred to the Senate Committee on Judiciary.

Actions and Proceedings

Goddard v. Farmers Insurance Co.
(Oregon Court of Appeals, Oct. 12, 2005)

Ruling: The court on this appeal considered whether the jury’s award of punitive was unconstitutionally excessive. The case involved an action for damages against Farmers Insurance Co. resulting from an excess judgment against its insured in a wrongful death case. The court held that the jury’s award was excessive and that the maximum constitutionally permissible award of punitive damages is three times the compensatory award (citing Campbell v. State Farm, 65 P.3d 1134 (Utah 2001)). The court also discussed “polling agreements” in the context of “liability insurance.”

Advertising Injury

P.C. Woo, Inc. v. The Tokio Marine and Fire Insurance Co.
(California 9th Circuit Court, Oct. 7, 2005)

Ruling: At issue on this appeal was whether the activities of the insured constituted “advertising” under the applicable CGL policies. There were two policies in question, which provided that advertising injury includes copyright infringement caused by an offense committed in the course of “advertising.” Neither policy defined “advertising,” and one policy defined “advertisement.” The court adopted the rule set forth by the California Supreme Court, which interpreted advertising to mean “widespread promotional activities usually directed to the public at large.” The court held that the insured’s activities did not constitute “advertising” under the one policy, nor did the insured’s infringing conduct fall within the definition of “advertisement” in the other.

Arbitration

Viola v. California Department of Managed Health Care
(California Court of Appeals, 2nd District, Oct. 11, 2005)

Ruling: A group of employees in this case challenged the approval by the California Department of Managed care and its director of health care plans that contained a mandatory arbitration provision. The court held that neither the Knox-Keene Health Care Service Plan Act nor the employees’ right to a trial by jury were violated by the inclusion of such a provision.

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