Assembly Bill A10275

                            
                    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:

  Section  1.  Section  2601 of the insurance law is amended by adding a
new subsection (a-1) to read as follows:
  (A-1) (1) NO REPRESENTATIVE OF AN INSURER SHALL TAKE  ANY  WRITTEN  OR
RECORDED  STATEMENT  FROM AN UNREPRESENTED CLAIMANT UNTIL AT LEAST SIXTY
DAYS HAVE PASSED SINCE THE DATE OF THE EVENT GIVING  RISE  TO  A  CLAIM,
EXCEPT IN A CLAIM WHICH IS FOR LOSS OR DAMAGE TO PROPERTY ONLY, OR AS IS
PERMITTED BY THE WORKERS' COMPENSATION LAW. IN THE EVENT THAT AN INSURER
VIOLATES  THIS  PARAGRAPH,  THE STATEMENT SHALL BE INADMISSIBLE AT TRIAL
AND SHALL NOT BE USED DURING ANY COURSE OF THE CAUSE OF ACTION  FOR  ANY
PURPOSE,  EXCEPT  IF  BENEFICIAL TO THE CLAIMANT.  IF AN INSURER TAKES A
WRITTEN OR RECORDED STATEMENT  AFTER  THE  PROHIBITED  TIME  PERIOD  HAS
EXPIRED,  IT  SHALL ADVISE THE CLAIMANT OF HIS OR HER RIGHT TO REFUSE TO
GIVE THE STATEMENT AND THE RIGHT TO SEEK ADVICE FROM  COUNSEL  REGARDING
THE REQUEST FOR SUCH STATEMENT. A COPY OF THE TRANSCRIPT OF ANY RECORDED
STATEMENT  SHALL  BE  PROVIDED TO THE CLAIMANT WITHIN THIRTY DAYS OF THE
DATE OF THE RECORDING.
  FOR THE PURPOSE OF THIS SUBSECTION THE TERM "REPRESENTATIVE" MEANS ANY
REPRESENTATIVE WORKING FOR OR ON BEHALF OF A LIABILITY INSURER, SELF-IN-
SURED ENTITY OR THIRD PARTY  CLAIMS  ADMINISTRATOR  INCLUDING,  BUT  NOT
LIMITED  TO  ALL EMPLOYEES, AGENTS, INDEPENDENT CONTRACTORS AND INVESTI-
GATORS IN ANY SITUATION REGARDING AN ACCIDENT  WHERE  THE  LAWS  OF  THE
STATE  APPLY,  EXCEPT  THAT  REPRESENTATIVES HANDLING CLAIMS PURSUANT TO
ARTICLE FIFTY-ONE OR FIFTY-TWO OF THIS CHAPTER  ARE  EXPRESSLY  EXCLUDED
FROM  THIS  SUBSECTION WITH REGARD TO THEIR OWN CLAIMANTS. HOWEVER, SUCH
REPRESENTATIVES ARE REQUIRED TO ADVISE APPLICANTS  THAT  THEY  HAVE  THE
RIGHT TO SPEAK TO AN ATTORNEY BEFORE GIVING A STATEMENT.
  (2)  A  REPRESENTATIVE  SHALL NOT SETTLE A CLAIM WITH AN UNREPRESENTED
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

COVERAGE)  UNLESS MORE THAN SIXTY DAYS HAVE PASSED SINCE THE DATE OF THE
EVENT GIVING RISE TO THE  CLAIM.  IF  THERE  IS  SUPPLEMENTAL  UNINSURED
MOTORIST COVERAGE AVAILABLE TO THE CLAIMANT, THE SETTLING REPRESENTATIVE
MUST  FIRST OBTAIN THE SUPPLEMENTAL UNINSURED MOTORIST INSURER'S WRITTEN
CONSENT TO SETTLE ON BEHALF OF THE CLAIMANT. ANY SETTLEMENTS MADE DURING
THE PROHIBITED TIME PERIOD THAT DO NOT MEET THE AFOREMENTIONED  CRITERIA
ARE  VOIDABLE  BY  THE CLAIMANT AND UNENFORCEABLE BY THE INSURER. AT THE
OPTION OF THE CLAIMANT, THE SETTLEMENT SHALL BE VOIDABLE TO  THE  EXTENT
THAT  IT  PREJUDICES  ANY  RIGHTS  OF THE UNREPRESENTED CLAIMANT AND ALL
SUPPLEMENTAL UNINSURED MOTORIST INSURERS COVERING THE CLAIMANT  FOR  THE
SUBJECT EVENT GIVING RISE TO THE CLAIM.
  (3)  DURING  ALL  COMMUNICATIONS  WITH UNREPRESENTED CLAIMANTS, BEFORE
ASKING ANY CLAIMANT ANY QUESTIONS AT ALL, THE REPRESENTATIVE SHALL  READ
THE  CLAIMANT  A STATEMENT ADVISING HIM OR HER OF THE RIGHT TO REFUSE TO
SPEAK WITH THE INSURER AND ADVISING HIM OR HER OF THE RIGHT  TO  CONSULT
AN  ATTORNEY.  THE FOLLOWING STATEMENT SHALL BE READ EACH AND EVERY TIME
THE CLAIMANT IS CONTACTED. "YOU HAVE THE RIGHT TO CONSULT WITH AN ATTOR-
NEY BEFORE SPEAKING TO ME OR PROVIDING ME WITH  ANY  INFORMATION,  DOCU-
MENTS,  PHOTOGRAPHS,  WRITTEN  STATEMENTS,  RECORDED STATEMENTS OR OTHER
EVIDENCE. THE PAYMENT OF YOUR  MEDICAL  BILLS  OR  THE  AVAILABILITY  OF
LIABILITY COVERAGE IS NOT CONTINGENT UPON SPEAKING WITH ME."
  (4)  IN  THE  EVENT  THAT ANY SETTLEMENT IS MADE WITH AN UNREPRESENTED
CLAIMANT AFTER THE PROHIBITED TIME PERIOD HAS PASSED, THE  CLAIMANT  MAY
RESCIND  THE  SETTLEMENT  AGREEMENT  OR RELEASE BY NOTIFYING THE INSURER
WITHIN THIRTY DAYS OF THE DATE OF THE RELEASE OR  SETTLEMENT  AGREEMENT.
IN  ORDER  TO RESCIND THE AGREEMENT OR RELEASE, THE CLAIMANT MUST SEND A
LETTER VIA CERTIFIED MAIL, RETURN RECEIPT  REQUESTED  TO  THE  REPRESEN-
TATIVE.
  (5)  ANY OFFER TO SETTLE A CLAIM WITH, OR A RELEASE GIVEN TO AN UNREP-
RESENTED CLAIMANT MUST CONTAIN THE FOLLOWING LANGUAGE IN BOLD AND  LARGE
TYPE  SET  ADVISING  CLAIMANT  OF  THE RIGHT TO RESCIND AND THE RIGHT TO
CONSULT WITH AN ATTORNEY BEFORE SIGNING THE RELEASE. IF IT DOES NOT,  IT
IS  VOID AND UNENFORCEABLE. "YOU HAVE THE RIGHT TO REFUSE TO SETTLE YOUR
CLAIM AND DESPITE SUCH REFUSAL TO SETTLE, YOUR MEDICAL BILLS WILL  STILL
BE  PAID  AND  LIABILITY  COVERAGE WILL STILL BE AVAILABLE. YOU HAVE THE
RIGHT TO CONSULT WITH AN ATTORNEY BEFORE NEGOTIATING  WITH  US  AND  THE
RIGHT  TO DO SO BEFORE GIVING ANY WRITTEN OR RECORDED STATEMENTS, PHOTO-
GRAPHS, DOCUMENTS OR ANY OTHER  EVIDENCE  TO  US."  ALL  RELEASES  SHALL
CONTAIN  THE  FOLLOWING IN BOLD TYPE, WITH A SEPARATE SIGNATURE LINE FOR
THE CLAIMANT: "THE SETTLEMENT OF THIS CLAIM FOREVER  BARS  THE  CLAIMANT
FROM ANY FUTURE RECOVERIES RELATED TO THIS INCIDENT."
  (6)  IF  AN UNREPRESENTED CLAIMANT DOES NOT READ OR SPEAK ENGLISH, THE
REPRESENTATIVE SHALL NOT ENGAGE IN ANY COMMUNICATIONS WITH THE  CLAIMANT
UNLESS IT ENGAGES A CERTIFIED INTERPRETER TO COMMUNICATE WITH THE CLAIM-
ANT.  THE  REPRESENTATIVE  SHALL  ALSO ADVISE THE CLAIMANT OF HIS OR HER
RIGHTS AS OUTLINED IN THIS SUBSECTION, AND EXPLAIN THE CONDITION OF  ANY
SETTLEMENTS  TO  THE  CLAIMANT. THE INTERPRETER SHALL SIGN AN AFFIDAVIT,
WHICH IS NOTARIZED, REGARDING THE ACCURACY OF THE TRANSLATION,  AND  THE
ORIGINAL  THEREOF  SHALL BE KEPT ON FILE FOR AT LEAST SEVEN YEARS, ALONG
WITH THE LAST KNOWN CONTACT INFORMATION FOR THE INTERPRETER.
  S 2. This act shall take effect immediately and shall apply to  claims
that are settled on or after such date.