BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON INSURANCE
                             Senator Richard Roth, Chair
                                2015 - 2016  Regular 

          Bill No:              AB 822        Hearing Date:    June 10,  
          2015
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          |Author:    |Cooley                                               |
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          |Version:   |June 1, 2015    Amended                              |
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          |Urgency:   |No                     |Fiscal:    |No               |
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          |Consultant:|Erin Ryan                                            |
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          Subject:  Insurance: California Insurance Guarantee Association:  
                                     insolvency.


           SUMMARY     Provides that the laws governing the California Insurance  
          Guarantee Association (CIGA) do not require a final  
          determination of a claim in an insolvent insurer's liquidation  
          proceeding before a covered claim may be submitted to CIGA, and  
          establishes a one year statute of limitations for filing  
          non-workers' compensation civil claims against CIGA or, if the  
          written denial of the non-workers' compensation claim is based  
          on a failure to exhaust other insurance available to pay the  
          claim, six months after all other insurance has been exhausted,  
          as specified.
          
           
          DIGEST
            
          Existing law
            
           1.  Establishes CIGA to pay "covered claims" of insolvent member  
              insurers, as specified. (§1063 et. seq.)

           2.  Requires each insurer admitted to transact insurance in this  
              state in three specified classes of insurance, including  
              workers' compensation, auto and homeowners, and all other  
              property casualty insurance, to participate in CIGA as a  
              condition of doing business.

           3.  Defines "covered claims," and expressly limits CIGA's authority  







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              to make payments to only those claims that are specifically  
              enumerated.

           4.  Specifically provides that a "covered claim" does not include a  
              claim to the extent it is covered by any other insurance.  
              (§1063.1(c)(9))

           5.  Provides that California policyholders pay an assessment on  
              insurance policies (up to 2%, subject to some qualifications) in  
              order to fund CIGA's claims-paying obligations

           

          This bill

            1)  Provides that the laws governing CIGA do not require a  
              final determination of a claim in an insolvent insurer's  
              liquidation proceeding before a covered claim may be  
              submitted to CIGA.

           2)  Provides that if a claim is presented to CIGA and all  
              requirements for processing a covered claim are satisfied,  
              CIGA shall process the claim for payment.

           3)  Provides that if CIGA provides a written denial of a  
              non-workers' compensation claim, then the person asserting  
              the claim has one year to bring an action challenging the  
              denial, including an action for declaratory relief.

           4)  Provides that if the written denial of the non-workers'  
              compensation claim is based on a failure to exhaust other  
              insurance available to pay the claim, a claim shall be  
              reasserted against CIGA within six months after all other  
              insurance has been exhausted.


           COMMENTS
            
          1.  Purpose of the bill    To establish a clear standard with  
              regard to when a cause of action accrues within the workers'  
              compensation system for CIGA civil claims in response to a  
              recent Court of Appeal decision in Snyder v. CIGA (229  
              Cal.App.4th, 177 Cal.Rptr.3d 853) which noted that there is  
              no statute or regulation specifying when a claim must be  








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              submitted to CIGA.. 

           2.  Background    CIGA was created by legislation in 1969 as an  
              association of insurers that makes payments to policyholders  
              of property/casualty, workers' compensation and  
              "miscellaneous" insurers when the member insurance company  
              becomes insolvent and is unable to do so. It is a statutory  
              entity that depends on the establishing legislation for its  
              existence and for a definition of the scope of its powers,  
              duties and protections. CIGA is funded by premium surcharges  
              upon applicable lines of insurance, and those surcharges are  
              limited by statute to a maximum of 2%. 
               
               The purpose of CIGA is to pay "covered claims" of member  
              insurance companies that have become insolvent.  CIGA's  
              total liability for any single claim is $500,000, other than  
              claims for workers' compensation, which are not limited.   
              CIGA does not have to pay a claim "to the extent that it is  
              covered by any other insurance of a class covered by this  
              article and available to the claimant or insured."  
              (Insurance Code §1063.1(c)(9)(A)) This requires a factual  
              determination on a number of issues.  

              In the Snyder case, the Court was considering a complex and  
              longstanding litigation that impacted asbestos claims being  
              paid from a trust established to fund long-term liabilities  
              of companies that used asbestos after the insolvency of the  
              workers' compensation insurer.   Normally the statute of  
              limitations accrues on a claim for coverage to CIGA as soon  
              as CIGA rejects the claim, establishing a clear beginning of  
              the limitations period. The question in Snyder was more  
              difficult: when does the limitations period begin to run for  
              submitting a claim for coverage? 

              The Court of Appeal in Snyder v. CIGA observed that no  
              statute or regulation specifies the point at which a claim  
              must be submitted to CIGA. In the absence of a clear  
              legislative mandate, the Court discussed the general law  
              that no cause of action arises until all of the elements  
              necessary to it were present.  The Court went on to create  
              its own determination of what must be present for a claimant  
              to have a mature claim against CIGA, stating "An insured's  
              right to recover from CIGA does not arise and cannot be  
              determined until it is known what recovery the insured will  








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              obtain in the insolvency proceedings."  The Court went on to  
              say that "Nonetheless, because the claim is not ripe for  
              determination until the actual recovery in the insolvency  
              proceedings is known, a fair argument can be made that the  
              cause of action against CIGA does not accrue until that  
              uncertainty has been resolved."

              The implication of the Court's ruling is that no claim  
              against CIGA becomes ripe until the underlying insolvent  
              insurer's estate is finally resolved - which in many cases  
              is years if not decades after claims have arisen or the  
              insurer was seized as insolvent by its home state regulator.  
               The Court stated that "because the claim is not ripe for  
              determination until the actual recovery in the insolvency  
              proceedings is known, a fair argument can be made that the  
              cause of action against CIGA does not accrue until that  
              uncertainty has been resolved."

              The Court's decision in Snyder raises important policy  
              issues for the handling of claims by CIGA.  As noted above,  
              the purpose of CIGA is to pay "covered claims" of member  
              insurance companies as soon as possible.  The court decision  
              could result in the unintended consequence of forcing  
              claimants to wait until an insolvent estate is finally  
              resolved-possibly many years--before submitting a claim to  
              CIGA.

              By way of example, in the Snyder case the proof of claim was  
              filed with the liquidator in June of 2004 and no  
              determination on that claim was made by the liquidator until  
              2011, almost seven years later.  Claimants who want to seek  
              "covered claim" benefits from CIGA should not have to wait  
              that many years for their claims against CIGA to mature.

              AB 822 will not affect the normal filing of claims for  
              workers' compensation benefits or change the workers'  
              compensation process, but will apply to civil claims filed  
              against the organization.

              AB 822 will not affect the parties to the Snyder case, but  
              will only apply prospectively to new cases.

          3.  Support    CIGA, sponsor of this bill, believes that rather  
              than have to litigate with various claimants over when a  








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              cause of action accrues, it would be much more prudent to  
              clearly remedy the Court's observation that no statute or  
              regulation specifies when the statute of limitations period  
              for civil actions against CIGA should begin to run.   
              Establishing a clear standard will also eliminate the  
              concern that many claimants never file a proof of claim in  
              the liquidation proceeding and never get a determination of  
              what recovery they will obtain in that proceeding as well as  
              the delays inherent in waiting for the liquidator to make  
              determinations on what recovery a claimant will receive as a  
              result of filing a proof of claim.

              According to the Association of California insurance  
              Companies, AB 822 will establish a clear statute of  
              limitations for those filing claims against CIGA. The bill  
              is in response to a recent Appellate Court decision that  
              noted California had no statutes or regulations to address  
              this issue, and went on to establish its own view of what  
              the statute of limitations was, creating significant  
              confusion as to the ability of CIGA to pay claims on a  
              timely basis.  The Personal Insurance Federation of  
              California supports AB 822 because it takes a reasonable  
              approach that will provide certainty and eliminate the need  
              for expensive and time-consuming litigation simply to  
              determine when the statute of limitations had begun.

          4.  Opposition   None received.

           
          POSITIONS
            
          Support
           
          California Insurance Guarantee Association (sponsor)
          Association of California Insurance Companies
          Personal Insurance Federation of California  

          Oppose
               
          None received

                                      -- END --
          









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