BILL ANALYSIS                                                                                                                                                                                                    






                             SENATE JUDICIARY COMMITTEE
                           Senator Ellen M. Corbett, Chair
                              2009-2010 Regular Session


          SB 119                                                      
          Senator Wyland                                              
          As Introduced
          Hearing Date: May 5, 2009                                   
          Insurance Code                                              
          SK:jd                                                       
                                                                      

                                        SUBJECT
                                           
                Professional Liability Insurance: Renewal: Liability

                                      DESCRIPTION  

          This bill would revise the sunset date on a law that provides  
          immunity from liability for insurers who issue professional  
          liability insurance to health care providers for any statement  
          made in a notice of nonrenewal.  The law, which sunsets on  
          January 1, 2011, provides that such immunity does not extend to  
          statements shown to have been made in bad faith.  This bill  
          would extend the sunset date to January 1, 2013.

          (This analysis reflects author's amendments to be offered in  
          committee.)

                                      BACKGROUND  

          Under existing law, insurers are required to give written notice  
          of a policy cancellation or nonrenewal and to include in that  
          notice the reasons for the cancellation or nonrenewal.  Existing  
          law also provides that insurers are immune from liability for  
          statements made in the notice of cancellation unless the  
          statements are shown to have been made in bad faith with malice  
          in fact.  

          In 2005, the Legislature passed and the governor signed AB 1123  
          (Wyland, Chapter 327, Statutes of 2005) which generally extended  
          this same immunity from liability to statements made by  
          professional liability insurers in notices of nonrenewal to  
          health care providers.  Similarly, this immunity from liability  
          does not apply to statements which are shown to have been made  
                                                                (more)



          SB 119 (Wyland)
          Page 2 of ?



          in bad faith. 

          At the time AB 1123 was heard in this Committee in 2005,  
          supporters of the bill asserted that they had been penalized for  
          giving specified reasons for nonrenewal.  Specifically, NORCAL  
          Mutual Insurance Company stated that it had been sued twice  
          since 2002 for defamation based upon the reason given for  
          nonrenewal.  

          NORCAL asserted that because insurers are required to state the  
          reason for nonrenewal but were subject (at that time) to a civil  
          action for the stated reason, it was faced with "a Hobson's  
          choice to change guidelines for nonrenewal notices to give a  
          plain vanilla response or face a lawsuit from a physician who  
          may not want the true reasons for his or her nonrenewal  
          disclosed.  Without a qualified immunity such as that contained  
          in [AB 1123] (which does not immunize bad faith communications),  
          carriers will choose not to give a detailed reason, but instead  
          will simply state the doctor is being nonrenewed at 'Company  
          Election' or 'Does Not Meet Guidelines.'" 

          When AB 1123 was heard in the Senate Judiciary Committee, it was  
          amended to provide that its provisions sunset on January 1,  
          2011.  This bill would revise that sunset date, extending these  
          statutory immunity provisions to January 1, 2013. 

                                CHANGES TO EXISTING LAW
           
           Existing law  requires a professional liability insurer who  
          intends not to renew a policy, or to condition a policy renewal  
          as specified, to give written notice of the nonrenewal and the  
          reasons for the nonrenewal at least 60 days, but not more than  
          120 days, in advance of the end of the policy period.  (Ins.  
          Code Sec. 678.1.)

           Existing law  , until January 1, 2011, provides that there is no  
          liability on the part of, and no cause of action of any nature  
          shall arise against, an insurer who issues professional  
          liability insurance policies to health care providers for any  
          statement made in any of the following: 
          a)a written notice of nonrenewal, or any other oral or written  
            communication specifying the reasons for nonrenewal of a  
            policy issued to a health care provider; 
          b)any communication providing information pertaining to the  
            nonrenewal; or 
          c)evidence submitted at any court proceeding or informal inquiry  
                                                                      



          SB 119 (Wyland)
          Page 3 of ?



            in which the nonrenewal is an issue.  (Ins. Code Sec. 678.3.)

           Existing law  , until January 1, 2011, provides that the above  
          immunity from liability extends to statements made by a  
          professional liability insurer's authorized representatives,  
          agents, or employees or any licensed authorized insurance agent  
          or broker and does not extend to statements shown to have been  
          made in bad faith.  (Id.) 
           
          This bill  would provide that the above-described provisions  
          sunset on January 1, 2013. 
                                           
                                       COMMENT
           
          1.  Stated need for the bill  
          
          The author writes:
          
            Section 678.3 was enacted because professional liability  
            insurers-who are required by law to give reasons for  
            cancellation or nonrenewal of a policy-were being sued for  
            defamation for those statements.  While auto insurers had an  
            immunity for statements made in the nonrenewal notice,  
            professional liability carriers did not.  AB 1123 (Wyland)  
            addressed this discrepancy. 
          
          The sponsor of this bill, the California Association of  
          Professional Liability Insurers, asserts that the immunity  
          provided by AB 1123 to insurers who issue professional liability  
          policies to health care providers "promotes more candor in  
          communications made to the insured and should continue to be  
          preserved."

          2.  Extension of sunset more appropriate as questions remain about  
            the statute's usefulness  

          As currently in print, this bill would delete the sunset date on  
          Insurance Code Section 678.3, thereby extending its qualified  
          immunity provisions indefinitely.  In response to concerns  
          regarding whether the case had been made for such a deletion,  
          the author and his sponsor have agreed to extend the sunset date  
          for an additional two years, rather than delete it entirely.  

          The sponsor of this bill asserts that in the four years since  
          its enactment, Insurance Code Section 678.3, added by AB 1123,  
          has "demonstrated its value."  In response to Committee staff  
                                                                      



          SB 119 (Wyland)
          Page 4 of ?



          queries, however, the sponsor has indicated that while no  
          empirical evidence has been gathered demonstrating the statute's  
          usefulness, professional liability insurers have not been sued  
          for statements made in policy nonrenewals.  

          On the one hand, it may certainly be the case that the qualified  
          immunity provided in Insurance Code Section 678.3 has protected  
          professional liability insurers from suit.  On the other hand,  
          however, it may also be the case that these insurers are simply  
          giving the "plain vanilla response" described by NORCAL above  
          and therefore there is little on which to base a defamation  
          claim, for instance.  

          In response to this concern and questions about whether Section  
          678.3 has changed behavior and encouraged insurers to provide  
          more information in policy nonrenewals without the fear that  
          their candor will result in a lawsuit, the sponsor provided  
          examples of a letter sent by NORCAL to a health care provider  
          before the enactment of the immunity provisions and another sent  
          after the immunity protections took effect. 

          The letter written prior to the enactment of Section 678.3  
          stated that the reason for nonrenewal was "Does not meet  
          Underwriting Guidelines."  The nonrenewal reason in the letter  
          written after enactment was "Practice Profile - Hospital  
          Action."  NORCAL points out that the second letter states a more  
          specific, detailed reason for the nonrenewal, and the company's  
          underwriting department would have no information about the  
          underlying claims, or action taken against the doctor.  It is  
          important to note however, that NORCAL is not the only company  
          that offers these policies to health care providers and so the  
          examples described above are only examples of one company's  
          behavior.  In addition, because of computer system changes,  
          NORCAL was only able to provide a very limited example of a  
          letter written to a doctor before the enactment of Section 678.3  
          and another written after the statute's enactment.

          In response to these concerns about whether the statute has  
          truly changed behavior, the author and sponsor agreed to simply  
          extend the sunset date on the statute for two additional years  
          rather than remove it entirely. 
           
          3.  Author's amendment to extend sunset date for two additional  
            years  

          The author has agreed to amend the bill as follows:
                                                                      



          SB 119 (Wyland)
          Page 5 of ?




          On page 2, line 11 insert "(c) This section shall remain in  
          effect only until January 1, 2013, and as of that date is  
          repealed, unless a later enacted statute, that is enacted before  
          January 1, 2013, deletes or extends that date."


           Support  : Civil Justice Association of California; The Doctors  
          Company; NORCAL Mutual Insurance Company 

           Opposition : None Known

                                        HISTORY
           
           Source  : California Association of Professional Liability  
          Insurers

           Related Pending Legislation  : None known

           Prior Legislation  : AB 1123 (Wyland, Chapter 327, Statutes of  
          2005) See Background.

                                   **************