NY State Senate Bill 2023-S1797

Current Bill Status - In Senate Committee Insurance Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 03, 2024	referred to insurance
Jan 17, 2023	referred to insurance

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2023-S1797 (ACTIVE) - Details

See Assembly Version of this Bill:: A7139
Current Committee:: Senate Insurance
Law Section:: Insurance Law
Laws Affected:: Add §2601-a, amd §§3425 & 2601, Ins L
Versions Introduced in 2021-2022 Legislative Session:: S6813, A7285

2023-S1797 (ACTIVE) - Summary

Relates to claim settlement practices when an insurer refuses to pay or is delaying payment of a settlement; provides a policyholder a private right of action against such insurer doing business in the state who has refused or delayed payment of an insurance claim.

2023-S1797 (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S1797

SPONSOR: RAMOS
 
TITLE OF BILL:

An act to amend the insurance law, in relation to unfair claim settle-
ment practices

 
PURPOSE:

To allow insurance policy holders and injured people to recover damages
when an insurance company's refusal to pay or unreasonable delay in
paying a claim was not substantially justified.

 
SUMMARY OF PROVISIONS:

Section 1 creates a new Insurance Law section 2601-grants insurance
policy claimants a private right of action to seek damages if the insur-
er unreasonably refuses to pay or unreasonably delays payment without
substantial justification. An insurer would not be substantially justi-
fied in refusing to pay or in unreasonably delaying payment when it:

1. Fails to provide the claimant with accurate information regardingpol-
icy provisions relating to the coverage at issue; or,

2. Fails to effectuate in good faith a prompt, fair and equitable
settlement of a claim or portion of a claim and where the insurer failed
to reasonably accord at least equal or more favorable consideration to
its insured's interests as it did to its own interests, and thereby
exposed the insured to a judgment in excess of the policy limits or
caused other damage to a claimant; or

3. Fails to provide a timely written denial of a claimant's claim, or
portion thereof, with a full and complete explanation of such denial,
including references to specific policy provisions wherever possible; or

4. Fails to act in good faith by compelling such claimant to initiate a
lawsuit to recover under the policy by offering substantially less than
the amounts ultimately recovered in such suit; or

5. Fails to timely provide, on request of the policy holder or the poli-
cy holder's representative, all reports or other documentation arising
from the investigation of a claim; or

6. Refuses to pay a claim without conducting a reasonable investigation
prior to such refusal.

Any policyholder who establishes liability shall be entitled to recover
amounts due under the policy, costs and disbursements, consequential
damages, reasonable attorney's fees, interest from the time of the loss
or failure to offer a fair and reasonable settlement and punitive
damages.

The bill also includes procedural rules to ensure a fair hearing for all
parties. including evidentiary issues, notice to the insurer, opportu-
nity to cure, discovery and the right to trial.



Finally, in the event an insurer is found liable under this section, the
bill would prevent insurers from passing on the costs to consumers in
the form of higher premiums.

Section 2 amends Insurance Law section 3425 to prohibit insurers from
refusing to issue or renew a policy because a consumer has brought an
action under section 1.

Section 3 amends Insurance Law section 2601 to update fair claims
settlement practices.

Section 4 is the effective date.

 
JUSTIFICATION:

Insurance companies have an overwhelming advantage in the handling of a
claim, with the power and financial incentive to deny or delay coverage
and otherwise avoid fair payment of legitimate claims. Under current
law, there is no consequence to the insurer when a denial or delay of
coverage is unfounded, or when the insurer offers an unreasonably low
settlement. The importance of this issue became increasingly apparent in
the aftermath of Superstorm Sandy, when tens of thousands of New Yorkers
making claims to insurers experienced unfair claims practices. More
recently, COVID-19 claims denials have left many victims without even a
settlement offer in the absence of the threat of a trial and many small
businesses in danger of shuttering after insurers refused to pay for
losses due to mandated closures.

Currently § 2601 of the insurance law regulates the conduct of insurers,
prohibiting 5 specific actions that constitute unfair claims practices.

However, only the Superintendent of the Department of Financial Services
can enforce these provisions. Furthermore, § 2601 does not go far enough
in regulating the types of unfair claims practices we have seen across
the state in the wake of recent natural disasters.  Under existing stat-
utes and case law, an insurer can simply refuse to pay a claim with
impunity or offer an amount well below the value of the loss. Even if
the claimant sues and wins the full amount of the claim, they will still
not receive the benefits to which they should be entitled under the
policy because of the costs associated with bringing the successful
action. This gives insurers an unfair advantage in negotiating a settle-
ment of any claim - insurers are able to bear the costs of litigation,
but most ordinary New Yorkers cannot afford to do so. In addition, an
insurer's bad faith conduct may leave a policy holder exposed to a
liability judgment in excess of the policy limit.

New Yorkers who pay insurance premiums should expect insurers to live up
to their obligation to deal in good faith with, regard to claims submit-
ted under the policy. When insurers do not meet this obligation. it is
important that the consumer has a viable and effective means of seeking
redress. This hill gives consumers the legal means to achieve this goal.

 
FISCAL IMPACT:

None

 
EFFECTIVE DATE:
January 1st next succeeding the date on which it shall have become a
law.

2023-S1797 (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1797
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                             January 17, 2023
                                ___________
 
 Introduced  by  Sens.  RAMOS, KRUEGER, RIVERA, SALAZAR, STAVISKY -- read
   twice and ordered printed, and when printed to  be  committed  to  the
   Committee on Insurance
 
 AN  ACT  to amend the insurance law, in relation to unfair claim settle-
   ment practices
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. The insurance law is amended by adding a new section 2601-a
 to read as follows:
   §  2601-A.  UNFAIR  CLAIM  SETTLEMENT PRACTICES; CIVIL REMEDY. (A) THE
 HOLDER OF A POLICY ISSUED OR RENEWED PURSUANT TO ARTICLE THIRTY-FOUR  OF
 THIS  CHAPTER  OR  INJURED  PERSON  SHALL HAVE A PRIVATE RIGHT OF ACTION
 AGAINST ANY INSURER DOING BUSINESS IN THIS STATE FOR DAMAGES AS PROVIDED
 IN THIS SECTION UPON PROOF BY A PREPONDERANCE OF THE EVIDENCE THAT  SUCH
 INSURER'S  REFUSAL  TO  PAY OR UNREASONABLY DELAY PAYMENT TO THE POLICY-
 HOLDER OR INJURED PERSON OF AMOUNTS CLAIMED TO BE DUE UNDER A POLICY  IS
 NOT  REASONABLY  JUSTIFIED.  AN  INSURER  IS NOT REASONABLY JUSTIFIED IN
 REFUSING TO PAY OR IS UNREASONABLY DELAYING PAYMENT WHEN THE INSURER:
   (1) FAILS  TO  PROVIDE  THE  POLICYHOLDER  WITH  ACCURATE  INFORMATION
 CONCERNING POLICY PROVISIONS RELATING TO THE COVERAGE AT ISSUE;
   (2) FAILS TO EFFECTUATE A PROMPT AND FAIR SETTLEMENT OF A CLAIM OR ANY
 PORTION  THEREOF,  IN THAT THE INSURER (I) FAILS TO REASONABLY ACCORD AT
 LEAST EQUAL OR MORE FAVORABLE CONSIDERATION TO ITS  INSURED'S  INTERESTS
 AS  IT  DID  TO  ITS OWN INTERESTS, AND THEREBY EXPOSES THE INSURED TO A
 JUDGMENT IN EXCESS OF THE POLICY LIMITS, OR (II) REFUSES  TO  SETTLE  IN
 RESPONSE  TO  A  FAIR  AND REASONABLE SETTLEMENT OFFER WITHIN THE POLICY
 LIMITS FROM AN INJURED PARTY;
   (3) FAILS TO PROVIDE A TIMELY WRITTEN DENIAL OF A POLICYHOLDER'S CLAIM
 WITH A FULL AND COMPLETE EXPLANATION OF SUCH  DENIAL,  INCLUDING  REFER-
 ENCES TO SPECIFIC POLICY PROVISIONS WHEREVER POSSIBLE;
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD00045-01-3
 S. 1797                             2

 
   (4) FAILS TO MAKE A FINAL DETERMINATION AND NOTIFY THE POLICYHOLDER IN
 WRITING  OF  ITS  POSITION ON BOTH LIABILITY FOR AND THE INSURER'S VALU-
 ATION OF A CLAIM WITHIN A REASONABLE TIME NOT TO EXCEED  SIX  MONTHS  OF
 THE  DATE ON WHICH IT RECEIVED ACTUAL OR CONSTRUCTIVE NOTICE OF THE LOSS
 UPON WHICH THE CLAIM IS BASED;
   (5)  FAILS TO ACT IN GOOD FAITH BY COMPELLING A POLICYHOLDER TO INSTI-
 TUTE SUIT OR COMPEL APPRAISAL TO RECOVER AMOUNTS DUE UNDER ITS POLICY BY
 OFFERING SUBSTANTIALLY LESS THAN THE  AMOUNTS  ULTIMATELY  RECOVERED  IN
 SUIT OR BY APPRAISAL;
   (6)  FAILS  TO  ADVISE  A  POLICYHOLDER THAT A CLAIM MAY EXCEED POLICY
 LIMITS, THAT COUNSEL ASSIGNED  BY  THE  INSURER  MAY  BE  SUBJECT  TO  A
 CONFLICT  OF  INTEREST,  OR THAT THE POLICYHOLDER MAY RETAIN INDEPENDENT
 COUNSEL;
   (7) FAILS TO PROVIDE, ON REQUEST OF THE POLICYHOLDER OR  THEIR  REPRE-
 SENTATIVE,  ALL REPORTS, LETTERS OR OTHER DOCUMENTATION ARISING FROM THE
 INVESTIGATION OF A CLAIM AND EVALUATING LIABILITY FOR  OR  VALUATION  OF
 SUCH CLAIM;
   (8)  REFUSES  TO  PAY A CLAIM WITHOUT CONDUCTING A REASONABLE INVESTI-
 GATION;
   (9) NEGOTIATES OR SETTLES A CLAIM DIRECTLY WITH A  POLICYHOLDER  KNOWN
 TO  BE  REPRESENTED  BY  AN ATTORNEY WITHOUT THE ATTORNEY'S KNOWLEDGE OR
 CONSENT. THE PROVISIONS OF THIS PARAGRAPH SHALL NOT BE DEEMED TO PROHIB-
 IT ROUTINE INQUIRIES TO A POLICYHOLDER TO OBTAIN DETAILS CONCERNING  THE
 CLAIM;
   (10)  NEGOTIATES OR SETTLES A CLAIM DIRECTLY WITH A POLICYHOLDER KNOWN
 TO BE REPRESENTED BY A LICENSED PUBLIC ADJUSTER;
   (11) NEGOTIATES OR SETTLES A CLAIM DIRECTLY WITH A CONTRACTOR OR UNLI-
 CENSED PUBLIC ADJUSTER;
   (12) REQUIRES A  POLICYHOLDER  TO  SUBMIT  DUPLICATIVE  OR  REPETITIVE
 INFORMATION ALREADY SUBMITTED BY A POLICYHOLDER OR AN INJURED PARTY; OR
   (13) ACTS IN VIOLATION OF SECTION TWO THOUSAND SIX HUNDRED ONE OF THIS
 ARTICLE OR ANY REGULATION PROMULGATED PURSUANT THERETO.
   (B)  ANY POLICYHOLDER WHO ESTABLISHES LIABILITY PURSUANT TO SUBSECTION
 (A) OF THIS SECTION SHALL BE ENTITLED TO RECOVER, IN ADDITION TO AMOUNTS
 DUE UNDER THE POLICY, COSTS AND  DISBURSEMENTS,  CONSEQUENTIAL  DAMAGES,
 REASONABLE  ATTORNEYS'  FEES INCURRED BY THE POLICYHOLDER, INTEREST FROM
 THE DATE OF THE LOSS, AND PUNITIVE DAMAGES AS DETERMINED BY  THE  FINDER
 OF FACT.
   (C)  ANY  POLICYHOLDER MAY RECOVER DAMAGES FROM AN INSURER DOING BUSI-
 NESS IN THIS STATE PURSUANT TO THIS SECTION EITHER AS PART OF AN  ACTION
 TO  RECOVER  UNDER  THE  TERMS  OF  AN INSURANCE POLICY OR IN A SEPARATE
 ACTION.
   (D) IN ANY TRIAL OF A CAUSE OF  ACTION  ASSERTED  AGAINST  AN  INSURER
 PURSUANT TO THIS SECTION, EVIDENCE OF SETTLEMENT DISCUSSIONS WRITTEN AND
 VERBAL  OFFERS  TO  COMPROMISE AND OTHER EVIDENCE RELATING TO THE CLAIMS
 PROCESS SHALL BE ADMISSIBLE. IF CAUSES OF ACTION RELATING  TO  LIABILITY
 OF  THE  INSURER  UNDER THE POLICY AND UNDER THIS SECTION ARE ALLEGED IN
 THE SAME ACTION, THE COURT MAY BIFURCATE THE TRIAL OF ISSUES  SO  AS  TO
 AVOID PREJUDICE TO THE INSURER ON THE ISSUE OF LIABILITY UNDER THE POLI-
 CY  AND  FACILITATE  ADMISSIBILITY  OF  EVIDENCE ON THE CAUSES OF ACTION
 ASSERTED PURSUANT TO THIS SECTION.
   (E) ALL AMOUNTS RECOVERED FROM AN INSURER AS  DAMAGES  AND  REASONABLE
 ATTORNEYS'  FEES  IN  ANY  ACTION  AUTHORIZED  IN  THIS SECTION SHALL BE
 EXCLUDED BY THE INSURER IN ITS DETERMINATIONS OF THE  PREMIUMS  IT  WILL
 CHARGE ALL POLICYHOLDERS ON ALL POLICIES ISSUED BY IT.
 S. 1797                             3
 
   (F)  AN  ACTION MAY ALSO BE MAINTAINED BY ANY INJURED PERSON OR REPRE-
 SENTATIVE THEREOF INCLUDING, BUT NOT LIMITED TO, A GUARDIAN, ADMINISTRA-
 TOR, EXECUTOR, INDIVIDUAL WITH A POWER OF ATTORNEY OR ANY OTHER PERSONAL
 REPRESENTATIVE AGAINST AN INSURER TO RECOVER DAMAGES INCLUDING COSTS AND
 DISBURSEMENTS, CONSEQUENTIAL DAMAGES, REASONABLE ATTORNEY'S FEES, INTER-
 EST  FROM  THE TIME OF FAILURE TO OFFER A FAIR AND REASONABLE SETTLEMENT
 IN ACCORDANCE WITH THIS SECTION, AND PUNITIVE DAMAGES AS  DETERMINED  BY
 THE  FINDER  OF FACT OR COURT, NOT LIMITED TO THE POLICY LIMITS, WHERE A
 PREPONDERANCE OF THE EVIDENCE ESTABLISHES  THAT  THE  INSURER  FAILS  TO
 EFFECTUATE A PROMPT AND FAIR SETTLEMENT OF A CLAIM OR ANY PORTION THERE-
 OF, IN THAT UNDER THE TOTALITY OF THE FACTS AND CIRCUMSTANCES RELATED TO
 THE CLAIM, THE INSURER FAILS TO REASONABLY ACCORD AT LEAST EQUAL OR MORE
 FAVORABLE  CONSIDERATION TO ITS INSURED'S INTERESTS AS IT DID TO ITS OWN
 INTERESTS.
   (G) AT LEAST THIRTY DAYS PRIOR TO THE FILING OF ANY ACTION PURSUANT TO
 THIS SECTION, A WRITTEN DEMAND FOR RELIEF, IDENTIFYING THE CLAIMANT  AND
 REASONABLY  DESCRIBING  THE  UNFAIR CLAIM SETTLEMENT ACT OR PRACTICE AND
 THE INJURY SUFFERED, SHALL BE MAILED OR DELIVERED TO ANY  INSURER  DOING
 BUSINESS IN THIS STATE. ANY INSURER DOING BUSINESS IN THIS STATE RECEIV-
 ING  SUCH  A DEMAND FOR RELIEF WHO, WITHIN THIRTY DAYS OF THE MAILING OR
 DELIVERY OF THE DEMAND FOR RELIEF, MAKES A WRITTEN TENDER OF  SETTLEMENT
 WHICH  IS  REJECTED  BY THE CLAIMANT MAY, IN ANY SUBSEQUENT ACTION, FILE
 THE WRITTEN TENDER AND AN AFFIDAVIT CONCERNING ITS REJECTION AND THEREBY
 LIMIT ANY RECOVERY TO THE RELIEF TENDERED IF THE FINDER  OF  FACT  FINDS
 THAT  THE RELIEF TENDERED WAS REASONABLE IN RELATION TO THE INJURY ACTU-
 ALLY SUFFERED BY THE CLAIMANT. IN ALL OTHER CASES, IF THE FINDER OF FACT
 FINDS FOR THE CLAIMANT, RECOVERY  SHALL  BE  IN  THE  AMOUNT  OF  ACTUAL
 DAMAGES;  OR  UP TO THREE BUT NOT LESS THAN TWO TIMES SUCH AMOUNT IF THE
 FINDER OF FACT FINDS THAT THE UNFAIR CLAIM SETTLEMENT  ACT  OR  PRACTICE
 WAS  A  WILLFUL  OR  KNOWING  VIOLATION OF SUBSECTION (A) OR (F) OF THIS
 SECTION OR THAT THE REFUSAL TO GRANT RELIEF UPON DEMAND WAS NOT  REASON-
 ABLY JUSTIFIED WITH KNOWLEDGE OR REASON TO KNOW THAT THE ACT OR PRACTICE
 COMPLAINED  OF  VIOLATED  SUBSECTION (A) OR (F) OF THIS SECTION. FOR THE
 PURPOSES OF THIS CHAPTER, THE AMOUNT OF ACTUAL DAMAGES TO BE  MULTIPLIED
 BY  THE  FINDER OF FACT SHALL BE THE AMOUNT OF THE DAMAGES AS DETERMINED
 BY THE FINDER OF FACT ON ALL CLAIMS ARISING OUT OF THE SAME AND UNDERLY-
 ING TRANSACTION OR OCCURRENCE, REGARDLESS OF THE EXISTENCE OR  NONEXIST-
 ENCE  OF  INSURANCE COVERAGE AVAILABLE IN PAYMENT OF THE CLAIM. IN ADDI-
 TION, THE COURT SHALL AWARD SUCH OTHER EQUITABLE  RELIEF,  INCLUDING  AN
 INJUNCTION, AS IT DEEMS TO BE NECESSARY AND PROPER.  THE DEMAND REQUIRE-
 MENTS OF THIS SUBSECTION SHALL NOT APPLY IF THE CLAIM IS ASSERTED BY WAY
 OF COUNTERCLAIM OR CROSS-CLAIM.
   (H)  THE RIGHTS ENUMERATED IN THIS SECTION ARE NOT THE EXCLUSIVE REME-
 DIES AVAILABLE TO THE POLICYHOLDER OR INJURED PERSON  OR  REPRESENTATIVE
 THEREOF INCLUDING, BUT NOT LIMITED TO, A GUARDIAN, ADMINISTRATOR, EXECU-
 TOR,  INDIVIDUAL  WITH POWER OF ATTORNEY OR ANY OTHER PERSONAL REPRESEN-
 TATIVE AND DO NOT PRECLUDE ANY COMMON  LAW  CLAIMS  OR  OTHER  STATUTORY
 CLAIMS THAT MAY EXIST OR ARISE.
   (I)  UPON DEMAND OF A CLAIMANT POLICYHOLDER OR INJURED PERSON PURSUANT
 TO THIS SECTION, AN INSURER SHALL MAKE  AVAILABLE  TO  THE  CLAIMANT  OR
 INJURED PERSON THE ENTIRE CLAIM FILE WITHIN THIRTY DAYS.
   (J)  A  POLICYHOLDER OR INJURED PERSON SHALL HAVE THE RIGHT TO A TRIAL
 BY JURY. NO MANDATORY ARBITRATION AGREEMENT WITHIN OR PART OF ANY  WRIT-
 TEN  CONTRACT  FOR  INSURANCE  SHALL PROHIBIT AN ACTION PURSUANT TO THIS
 SECTION.
 S. 1797                             4
 
   § 2. Section 3425 of the insurance law is  amended  by  adding  a  new
 subsection (t) to read as follows:
   (T)  NO INSURER SHALL REFUSE TO ISSUE OR RENEW A COVERED POLICY SOLELY
 ON THE GROUNDS THAT THE POLICYHOLDER HAS BROUGHT AN ACTION  PURSUANT  TO
 SECTION TWO THOUSAND SIX HUNDRED ONE-A OF THIS CHAPTER.
   §  3.  Paragraph  4 of subsection (a) of section 2601 of the insurance
 law, as amended by chapter 547 of the laws of 1997, is amended  to  read
 as follows:
   (4) [not attempting in good faith] WHERE THE INSURER FAILS to effectu-
 ate  A  prompt[,]  AND  fair  [and  equitable settlements] SETTLEMENT of
 [claims submitted in which liability  has  become  reasonably  clear]  A
 CLAIM  OR  ANY  PORTION THEREOF, IN THAT THE INSURER FAILS TO REASONABLY
 ACCORD AT LEAST EQUAL OR MORE FAVORABLE CONSIDERATION TO  ITS  INSURED'S
 INTERESTS  AS  IT  DID  TO  ITS  OWN  INTERESTS, AND THEREBY EXPOSES THE
 INSURED TO A JUDGMENT IN EXCESS OF THE POLICY LIMITS, except where there
 is a reasonable basis supported by specific  information  available  for
 review  by the department that the claimant has caused the loss to occur
 by arson. After receiving a properly executed proof of loss, the insurer
 shall advise the claimant of acceptance or denial of  the  claim  within
 thirty working days;
   §  4. This act shall take effect on the first of January next succeed-
 ing the date on which it shall have become a law and shall apply to  all
 acts  and  omissions  by  insurers  occurring on or after such effective
 date.

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Senate Bill S1797

Sponsored By

Current Bill Status - In Senate Committee Insurance Committee

co-Sponsors

2023-S1797 (ACTIVE) - Details

2023-S1797 (ACTIVE) - Summary

2023-S1797 (ACTIVE) - Sponsor Memo

2023-S1797 (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S1797

Share this bill

Sponsored By

Current Bill Status - In Senate Committee Insurance Committee

co-Sponsors

2023-S1797 (ACTIVE) - Details

2023-S1797 (ACTIVE) - Summary

2023-S1797 (ACTIVE) - Sponsor Memo

2023-S1797 (ACTIVE) - Bill Text download pdf

Comments