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August 11, 2014 at 01:17 PM
A Florida Appeals Court ruling last week gives life insurers new leverage in their ongoing battle with states regarding their unclaimed property policies.
However, the Florida Office of Insurance Regulation said the decision will have only limited impact because it does not roll back settlements with insurers made in 2012 and 2013 related to the issue. That will mean that smaller insurers who decided to litigate the issue will get a much better deal than large insurers who settled with a multi-stake task force in 2012 and 2013.
“This is a huge decision for those insurers who are still litigating the issue or haven’t settled with regulators, and there are several hundred of those,” said a lawyer who has dealt with the issue extensively. However, the larger insurers who have already revised their systems to reflect the earlier settlements are unlikely to want to go to the time and expense of revisiting the issue,” the lawyer said.
Insurance companies have been dealing with the issue since 2008, when California Comptroller John Chiang authorized an outside auditing firm to examine whether John Hancock was complying with state unclaimed property laws, which require financial institutions to turn over funds not claimed by beneficiaries after a specific period of time.
The ruling by a three-judge panel in Florida’s First District Court of Appeal held that Florida’s unclaimed property law does not make life insurance proceeds due and payable at the time of the insured’s death, according to a legal alert by lawyers at Sutherland, Asbill and Brennan.
However, the Florida OIR discounted the impact because the “national life claim settlement agreements that Florida has participated in have not been rendered null and void as a result of this court decision. Those settlements remain in full force and effect,” the OIR said.
But, a lawyer who specializes in the issue, who asked not to be identified, said the Florida ruling “lessens the burden on insurers, and exposes the regulators’ position as without legal basis.” He also said it could have an impact on all pending litigation, including California, because the pertinent California law is similar to the law in Florida.
And, the lawyer said, some of the settlements included a clause that permits the insurance companies to appeal to the regulators to conform the settlements to the law. “That was aimed at ensuring the settlements were uniform, and certain companies did not get better terms,” the lawyer said.
The settlements by the Florida OIR were reached with American International Group (AIG) and 10 other companies in October 2012, with American International Group as the lead defendant.
Under the agreement, AIG paid an $11 million fine to be divided amongst the states that join the settlement. AIG officials also said they added $55 million during the 2012 third quarter to an existing reserve of $200 million related to the audits for interest and expected acceleration of benefit payments under the settlement.
The agreement was with 10 life insurance companies collectively referred to as AIG, according to Kevin McCarty, Florida insurance commissioner and then-president of the National Association of Insurance Commissioners (NAIC). The probe related to use of the Social Security Administration’s Death Master File (DMF) to identify deaths of policyholder claims that have not been submitted to the company in the normal course of business.
Through this and other settlements, Prudential Financial, MetLife, TIAA-CREFF, John Hancock, Nationwide Mutual and most other large life insurers doing business in the U.S. have agreed to settlements based on the task force’s interpretation of unclaimed property laws.
According to the industry lawyer, even though the Florida decision limits the power of the state to require the use of the DMF and to specify frequency, the insurers will not be able to get back the fines paid through the settlements. “The money is gone; it will never come back,” the lawyer said. “That is one of the consequences of entering into a settlement not required by law.”
