NCOIL Applauds Passage & President’s Signing of Dodd-Frank Reform Bill

For Immediate Release
May 29, 2018
Contact: Paul Penna
(732) 201-4133

NCOIL APPLAUDS PASSAGE & PRESIDENT’S SIGNING OF DODD-FRANK
REFORM BILL
Bipartisan Bill Provides Regulatory Relief to Community Banks, Increases Transparency in
International Insurance Standard-Setting Activities

Manasquan, NJ – The National Council of Insurance Legislators (NCOIL) applauded the passage and signing of S.2155, The Economic Growth, Regulatory Relief, and Consumer Protection Act, by President Trump last week. The law garnered bipartisan support in both chambers of Congress and contains several provisions on topics that NCOIL has been closely monitoring and discussing.

The provisions in the law garnering the most attention are those that aim to provide regulatory relief to community banks so that they can dedicate more resources towards serving the financial needs of consumers rather than compliance officers.

In July 2017, NCOIL adopted a Resolution “In Support of an Exemption for Community Banks from Onerous and Unnecessary Regulations” – sponsored by Indiana Senator Travis Holdman, NCOIL Immediate Past President.

“Community banks have been disappearing because of the cost of compliance with hundreds of regulations, most of which should never have been applicable to community banks in the first place,” said Senator Holdman. “It was the large banks that engaged in the risky behavior that contributed to the financial crisis of 2007-2008, and community banks unfairly ended up being viewed through the same regulatory lens of agencies such as the Consumer Financial Protection Bureau. This law will help usher back in an era in which community banks thrive and benefit their local communities.”

The law also contains a section that requires increased transparency in international insurance discussions and requires Federal officials to achieve consensus positions with state insurance regulators when negotiating insurance issues on international forums.

“As someone who served formerly as both Banking & Insurance Commissioner in my state (NJ), I can speak to the important steps this legislation takes in both areas,” said NCOIL CEO Tom Considine. “Dodd-Frank should have contained a broad exemption for community banks at the
time it was drafted; and, as we saw from the recent negotiations surrounding the insurance Covered Agreement, the very officials who regulate insurance in this country were essentially locked out,” he continued. “While this legislation is far from perfect, it is a good first step,” Considine concluded.

“I am pleased to see that the President has signed this law,” stated Arkansas Senator Jason Rapert, NCOIL President. “The negotiation process surrounding the Covered Agreement was fundamentally flawed and it is good to see that Congress and the President have realized that and taken steps to improve the overall process of international insurance discussions. Work still needs to be done to ensure that state insurance legislators are part of international insurance discussions, but overall, this section of the law serves to preserve and protect the state-based system of insurance regulation – a cause that NCOIL will always support.”

The text of S.2155 can be viewed here – https://www.congress.gov/bill/115th-congress/senatebill/2155/text?loclr=cga-bill#toc-id0E7DF00F49224D25B2F39A07700D0F8A – and the Resolution can be viewed here – http://ncoil.org/wp-content/uploads/2017/07/community-bankresolution-d2-2-6-17-1-4-7-15-17.pdf

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NCOIL is a national legislative organization comprised principally of legislators serving on state
insurance and financial institutions committees around the nation. NCOIL writes Model Laws in
insurance and financial services, works to both preserve the state jurisdiction over insurance as
established by the McCarran-Ferguson Act seventy years ago and to serve as an educational forum for
public policy makers and interested parties. Founded in 1969, NCOIL works to assert the prerogative of
legislators in making state policy when it comes to insurance and educate state legislators on current and
perennial insurance issues.

NCOIL Statement on ALI ‘Restatement’ of Liability Insurance Law

 

For Immediate Release
May 25, 2018
Contact: Paul Penna
(732) 201-4133

NCOIL CEO STATEMENT ON ALI ‘RESTATEMENT’ OF LIABILITY INSURANCE LAW
Passage Infringes on Legislative Prerogatives

Manasquan, NJ – Commissioner Tom Considine, NCOIL CEO issued the following statement regarding passage of the American Law Institute (ALI) Restatement of Liability Insurance Law:

“For more than a year we have been working with the ALI to ensure that legislative prerogatives were respected. This vote makes clear that the ALI has indeed departed from the path that has caused it to amass such respect with its earlier restatements in the areas of Contracts, Torts etc.. Previously, I called it a ‘NEWstatement’ and while we have had positive dialogue with the ALI leadership, and there have been some positive changes made to it along the way, the final version passed by the ALI does not alter that general view.”

NCOIL President Sen. Jason Rapert of Arkansas stated “NCOIL will not allow the constitutionally protected legislative prerogatives in each state to be infringed upon by an unelected body. Legislative action includes both the passage as well as the consideration and non-passage of bill language. We will examine all necessary steps to rectify this overreach, including the necessity for a model law that accurately states what the law is on certain liability insurance law topics”.

Rapert continued, “in the meantime, judges around the country should recognize this Restatement is as much a drafters’ wish list as an authoritative reference regarding established rules and principles of liability insurance law.”

NCOIL has devoted considerable time to discussing this issue, including most recently on an interim Executive Committee call earlier this month, at the 2018 Spring Meeting in Atlanta and the 2017 Annual Meeting in Phoenix, where a Resolution was introduced, and later adopted, urging the ALI to
significantly change the Restatement. Past relevant releases can be viewed below:

http://ncoil.org/wp-content/uploads/2017/12/ALI-Res-FINAL.pdf
http://ncoil.org/wp-content/uploads/2018/01/ALI-Res-Exec-Cmte-release-FINAL.pdf

This issue will be discussed at the 2018 NCOIL Summer Meeting in Salt Lake City from July 12 – 15.

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NCOIL is a legislative organization comprised principally of legislators serving on state insurance and financial institutions
committees around the nation. NCOIL writes Model Laws in insurance and financial services, works to both preserve the
state jurisdiction over insurance as established by the McCarran-Ferguson Act seventy years ago and to serve as an
educational forum for public policy makers and interested parties. Founded in 1969, NCOIL works to assert the
prerogative of legislators in making state policy when it comes to insurance and educate state legislators on current and
perennial insurance issues.

NCOIL President Applauds National Retirement Planning Week

For Immediate Release
April 11, 2018
Contact: Paul Penna
(732) 201-4133

NCOIL PRESIDENT STATEMENT APPLAUDS NATIONAL RETIREMENT PLANNING WEEK
Urges All Americans to Save for Their Retirement Every Payday

Manasquan, NJ – AR Senator Jason Rapert, NCOIL President, applauded the recognition of this week as National Retirement Planning Week:

“Sound retirement planning is vital to the quality of life for Americans in later years and for our economy. As NCOIL President as well as a licensed Financial Advisor for 20 years, I applaud the National Retirement Planning Week and encourage all Americans to plan and save appropriately so their golden years are just that.”

Rapert concluded “When it comes to retirement planning, no one ever plans to fail, but some simply fail to plan properly. Make retirement planning a priority so that the future you always envisioned for your family is possible.”

More information can be found here – https://www.retireonyourterms.org/NRPW and facts about retirement planning can be found here – https://www.retireonyourterms.org/docs/default-source/actioncenter-resources/nnlrtrmntplanweek_toolkit.

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NCOIL is a legislative organization comprised principally of legislators serving on state insurance and financial institutions
committees around the nation. NCOIL writes Model Laws in insurance and financial services, works to both preserve the
state jurisdiction over insurance as established by the McCarran-Ferguson Act seventy years ago and to serve as an
educational forum for public policy makers and interested parties. Founded in 1969, NCOIL works to assert the
prerogative of legislators in making state policy when it comes to insurance and educate state legislators on current and
perennial insurance issues.

NCOIL CEO Addresses “Insurance Ireland”

For Immediate Release
March 28, 2018
Contact: Paul Penna
(732) 201-4133

NCOIL CEO ADDRESSES “INSURANCE IRELAND”
Delivered Keynote About Efficacy of United States Insurance Regulatory System

Manasquan, NJ – Commissioner Tom Considine, NCOIL CEO recently delivered the keynote address to the capacity crowd at Insurance Ireland’s INED Council’s Flagship Annual Seminar. Insurance Ireland is that nation’s largest business insurance organization, with the INED Council representing the non-executive directors of its member companies.

Considine spoke about the efficacy of state-based regulation of insurance and the process where state legislators make public policy decisions through legislation and state regulators ensure that policy is carried out through the authority given them by the state legislature. Sylvia Cronin, the Director of
Insurance Supervision for the Central Bank of Ireland, also spoke at the event, presenting a contrast of regulatory approaches

“While other countries have different systems of insurance regulation, the United States system has thrived for nearly three quarters of a century” said Considine. “State legislatures work to ensure companies are solvent and consumers are protected. If, that it slightly different among the 50 states, we find that those differences ultimately inure to the improvement of the entire system.” NCOIL has long made protection of the state-based system of insurance regulation against federal and international regulatory creep a top priority having expressed this view in multiple education days to Congress on Capitol Hill.

“We are fond of saying in America that the states are 50 laboratories of democracy,” Considine told the assembled Irish directors, CEOs and others present, “however, nobody wants them passing laws in 50 different directions when it comes to insurance regulatory policy. That’s where NCOIL comes in.”

The seminar took place in The National Concert Hall, Earlsfort Terrace, Dublin.

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NCOIL is a legislative organization comprised principally of legislators serving on state insurance and financial institutions
committees around the nation. NCOIL writes Model Laws in insurance and financial services, works to both preserve the
state jurisdiction over insurance as established by the McCarran-Ferguson Act seventy years ago and to serve as an
educational forum for public policy makers and interested parties. Founded in 1969, NCOIL works to assert the
prerogative of legislators in making state policy when it comes to insurance and educate state legislators on current and
perennial insurance issues.

NCOIL CEO Expresses Disappointment in Short-Term NFIP Extension

 

For Immediate Release
March 23, 2018
Contact: Paul Penna
(732) 201-4133

NCOIL CEO EXPRESSES DISAPPOINTMENT IN SHORT-TERM NFIP EXTENSION
Omnibus Bill Only Extends Program Through July

Manasquan, NJ – Commissioner Tom Considine, NCOIL CEO, issued the following statement about the news that the Omnibus Bill passed by Congress includes yet another short-term reauthorization of the National Flood Insurance Program (NFIP) through July:

“It is vital that the NFIP has a long-term reauthorization. It is impossible for states to plan accordingly and protect consumers. It is beyond disappointing that Congress cannot make a long-term commitment to this program before it expires, yet again, in July.”

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NCOIL is a legislative organization comprised principally of legislators serving on state insurance and financial institutions
committees around the nation. NCOIL writes Model Laws in insurance and financial services, works to both preserve the
state jurisdiction over insurance as established by the McCarran-Ferguson Act seventy years ago and to serve as an
educational forum for public policy makers and interested parties. Founded in 1969, NCOIL works to assert the
prerogative of legislators in making state policy when it comes to insurance and educate state legislators on current and
perennial insurance issues.

NCOIL President Applauds 5th Circuit Decision to Reverse U.S. Department of Labor Fiduciary Rule

For Immediate Release
March 16, 2018
Contact: Paul Penna
(732) 201-4133

NCOIL PRESIDENT APPLAUDS 5TH CIRCUIT DECISION TO REVERSE US DEPARTMENT OF LABOR FIDUCIARY RULE
Court Rules That DOL Exceeded Authority

Manasquan, NJ – AR Sen. Jason Rapert, NCOIL President issued the following statement regarding the 5th Circuit Court of Appeals ruling in US Chamber of Commerce et. Al. v. Acosta that the US Department of Labor had exceeded its regulatory authority in creating the regulation that held advisors to a higher standard:

“As legislators, we take our responsibility to create law seriously. This was a clear overreach of legislative intent and I applaud the court for this ruling. NCOIL has been at the forefront of protecting state-based regulation of insurance and will weigh in when the federal government or international regulatory bodies subvert legislative prerogatives. I am especially pleased that the court chose not to tinker with the rule, but rather saw it for what it was and struck it down completely.”

NCOIL first raised concerns about this issue with a resolution opposing the Fiduciary Rule and calling for its repeal that passed the Life Insurance & Financial Planning Committee at the 2016 Summer Meeting. NCOIL communicated that opposition was conveyed to the Department of Labor. Having not received satisfactory resolution from the DOL, the NCOIL Executive Committee approved the resolution at the 2016 Annual Meeting. A copy of that resolution is below. NCOIL weighed in again approving of the Trump Administrations 18-month delay in 2017.

National Conference of Insurance Legislators (NCOIL) Resolution in Opposition to the United
States Department of Labor (DOL) Fiduciary Rule

Sponsored by Sen. Jason Rapert (AR)

WHEREAS, the DOL has recently promulgated its final “Fiduciary Rule” (Rule), published at 81 Fed. Reg. 20946 on April 8, 2016; and

WHEREAS, the Rule redefines the circumstances under which providing “investment advice” could give rise to “fiduciary” status under the Employee Retirement Income Security Act of 1974 (ERISA) and the Internal Revenue Code (Code); and

WHEREAS, NCOIL strongly supports the States’ rights to regulate their own insurance markets and products, including retirement related financial products; and

WHEREAS, Congress has affirmed the primary role of State regulators over the business of insurance through various legislative acts, including the McCarran-Ferguson Act and most recently the Dodd-Frank Act; and

WHEREAS, the state-based regulatory structure governing the manufacture, distribution, and sale of retirement related financial products is effective and proven; and

WHEREAS, state insurance regulation has in place on-going substantive procedures, processes and protocols to license, regulate and supervise insurance agents of retirement related financial products; and

WHEREAS, under the proven State-based legislative and regulatory structure, tens of millions of Americans have been able to receive sound retirement assistance, products and services from financial professionals who have consistently served the best interests of customers; and

WHEREAS, the Rule promulgated by the DOL would threaten the proven State-based legislative and regulatory structure by imposing a vague and burdensome fiduciary standard on non-fiduciary sales relationships, thereby upending the retirement savings marketplace; and

WHEREAS, the Rule will prevent consumer access to crucial retirement education and services, ultimately harming the very people it seeks to aid; and

WHEREAS, NCOIL believes in protecting the interests of consumers against excessive government regulation that will only hurt average working Americans trying to save for retirement; and

WHEREAS, Congress has opposed the Rule by passing a Joint Resolution of Disapproval (H.J. Res. 88); and

NOW, THEREFORE, BE IT RESOLVED, that NCOIL urges the DOL to repeal its Rule; and

NOW, THEREFORE, BE IT FURTHER RESOLVED, that NCOIL urges state legislators and other interested stakeholders to join in opposition to the Rule;

AND, BE IT FINALLY RESOLVED, that this resolution will be distributed to state legislative leadership, committee chairs and members, state regulators, and other interested parties.

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NCOIL is a legislative organization comprised principally of legislators serving on state insurance and financial institutions
committees around the nation. NCOIL writes Model Laws in insurance and financial services, works to both preserve the
state jurisdiction over insurance as established by the McCarran-Ferguson Act seventy years ago and to serve as an
educational forum for public policy makers and interested parties. Founded in 1969, NCOIL works to assert the
prerogative of legislators in making state policy when it comes to insurance and educate state legislators on current and
perennial insurance issues.

NCOIL Committee Discusses Likely Regulation of Pharmacy Benefit Managers (PBMs)

For Immediate Release
March 12, 2018
Contact: Paul Penna
(732) 201-4133

NCOIL COMMITTEE DISCUSSES LIKELY REGULATION OF PHARMACY BENEFIT MANAGERS (PBMs)

Need to Protect Consumers, Ensure Fair Business Practices

Manasquan, NJ – The NCOIL Health, Long Term Care and Health Retirement Issues Committee met at the 2018 NCOIL Spring Meeting in Atlanta, GA and heard from a variety of interested parties about Pharmacy Benefit Managers (PBMs) and the potential need for a model law that would give authority for regulation to state insurance commissioners.

This issue was raised by AR Sen. Jason Rapert where it has been an issue in his state of Arkansas, where PBMs are currently unregulated and there is a special session to examine potential solutions.

“Up until now, the PBMs have been playing streetball and it is time for a referee” said Rapert. “Insurance companies are overseen by insurance departments, pharmacists are overseen by pharmacy boards, and doctors are overseen by medical boards. This is to ensure consumers and patients are protected and companies are sound and solvent. I believe PBMs need to be regulated to ensure customers are protected and costs are contained.”

There was a large cross section of interested parties that offered testimony during the committee meeting including Scott Brunner, National Community Pharmacists Association; Scott Pace, Arkansas Pharmacists Association; Leanne Gassaway, AHIP; Lauren Rowley, PCMA, and Russ Galbraith, Chief Deputy Commissioner at the Arkansas Department of Insurance.

“NCOIL began a robust discussion that will continue through stages as a model law is developed over the course of the year. All interested parties will have an opportunity to be heard” said Commissioner Tom Considine, NCOIL CEO. “As the model is developed and debated, it will reflect the need to
protect consumers and patients.”

“I understand that PBMs may bring value to the process, but left unregulated, it seems clear that their conduct has in many instances become excessive and needs to be reined in,” concluded Rapert, who is also NCOIL President and committed to a fully inclusive process of deliberations and negotiations.

The discussion will continue during the Summer Meeting in Salt Lake City from July 12 – 15 at the Little America Hotel. Registration will open in April.

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NCOIL is a legislative organization comprised principally of legislators serving on state insurance and financial institutions
committees around the nation. NCOIL writes Model Laws in insurance and financial services, works to both preserve the
state jurisdiction over insurance as established by the McCarran-Ferguson Act seventy years ago and to serve as an
educational forum for public policy makers and interested parties. Founded in 1969, NCOIL works to assert the
prerogative of legislators in making state policy when it comes to insurance and educate state legislators on current and
perennial insurance issues.

NCOIL Concludes Successful 2018 Spring Meeting in Atlanta

 

For Immediate Release
March 6, 2018
Contact: Paul Penna
(732) 201-4133

NCOIL CONCLUDES SUCCESSFUL 2018 SPRING MEETING IN ATLANTA
High-Level Speakers and Panelists; Several Timely Issues Discussed

Manasquan, NJ – The National Council of Insurance Legislators (NCOIL) has concluded a successful 2018 Spring Meeting at the Whitley in Buckhead, GA. There were 267 registrants, 51 legislators from 32 states, including 11 first time legislators, 5 Commissioners and 12 Insurance Departments were represented, and all policy committees met to discuss timely insurance and financial services related issues.

“We had a productive meeting with good discussion on a variety of subjects” said AR Sen. Jason Rapert, NCOIL President. “We began a dialogue of a model law to regulate PBMs, heard about the impact of federal tax reform on the insurance industry and states, discussed the status of the NFIP and State flood insurance markets, continued a discussion of physician dispensing and drug compounding, and had a good discussion with our regulatory
counterparts that sets the table for a productive year.”

There was a lively discussion about Pharmacy Benefit Managers (PBMs), the role they play, and the potential need for regulatory oversight during the Health, Long-Term Care and Health Retirement Issues Committee. Sen. Rapert discussed the need for an NCOIL model. Discussion of this issue will continue at the NCOIL Summer Meeting.

“We continue to invite speakers that will educate legislators on emerging insurance issues and that goal is leading to continued growth year-over-year in both legislator and general attendance” said Commissioner Tom Considine, NCOIL CEO. “We are proud that our recruiting efforts have led to both North Carolina and Florida becoming contributing states. With these 2 large states upgrading their participation level, NCOIL’s Contributing States
now, for the first time ever, include the ten largest states in the country and states representing over 81% of the population of the United States.”

The speakers included Georgia Governor Nathan Deal, who delivered the keynote at the Welcome Breakfast; Florida CFO Jimmy Patronis, who delivered the luncheon keynote address on Saturday; CCIIO Director and CMS Deputy Director Randy Pate participated in the Health General Session “Health Insurance Exchanges in the Trump Administration- Are Waivers the Solution?”; and FEMA Assistant Administrator for Federal Insurance David  Maurstad participated in the Joint State-Federal Relations and International Issues Committee “Discussion on the Status of the NFIP and State Flood Insurance Markets.”

The 2018 NCOIL Summer Meeting will be in Salt Lake City, UT from July 12th – 15th. Registration will open in April.

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NCOIL is a legislative organization comprised principally of legislators serving on state insurance and financial institutions
committees around the nation. NCOIL writes Model Laws in insurance and financial services, works to both preserve the
state jurisdiction over insurance as established by the McCarran-Ferguson Act seventy years ago and to serve as an
educational forum for public policy makers and interested parties. Founded in 1969, NCOIL works to assert the
prerogative of legislators in making state policy when it comes to insurance and educate state legislators on current and
perennial insurance issues

NCOIL Writes to State Chief Judges Urging Action on ALI’s Proposed Liability Insurance Restatement

 

February 27, 2018

The Honorable Thomas A. Balmer
Chief Justice
Oregon Supreme Court
1163 State Street
Salem, OR 97301-2563

Dear Chief Balmer:

On behalf of the National Council of Insurance Legislators (NCOIL), I write to alert you to a project that The American Law Institute (ALI) has underway, which proposes to change basic and settled tenets of insurance law, including in ways that directly conflict with existing state statutory provisions. We therefore believe that your input as a State Judicial Presiding Jurist, is both appropriate and needed before this project – the proposed Restatement of the Law, Liability Insurance, which would purport to set out the common law of insurance nationwide – is finalized.

As you know, the ALI publishes Restatements of the Law, model statutes, and Principles of the Law, which are respected publications that have been cited in published cases over 201,000 times. The ALI now plans to present a Restatement of the Law, Liability Insurance for final approval at its annual meeting in May 2018 addressing, for the first time, the common law governing liability insurance and proposing black-letter rules. Early drafts of this ALI Restatement project, however, have been criticized as designed not to restate the common law as it stands, but to advance aspirational goals of changing the law. NCOIL’s review of drafts of the ALI project found that there are numerous places where this ALI Restatement project draft abandons settled insurance law rules and contradicts state statutory provisions governing insurance, and it repeatedly proposes new law.

Following months of efforts by NCOIL engaging with the ALI to address concerns with this proposed Restatement project, I write to express our continuing concerns and to urge your careful review of this project. NCOIL’s efforts to engage the ALI in dialogue about our concerns have included a May 2017 letter to ALI detailing concerns; an invitation to hear from this project’s ALI Reporter, who addressed a general session of NCOIL’s Annual Meeting in November 2017; and subsequent correspondence both in late 2017 and early 2018 with ALI representatives about NCOIL’s concerns.

Specifically, NCOIL has pressed the ALI to make substantive changes to the project draft to avoid interference with the role of legislators in making state policy when it comes to insurance. Although ALI recently has stated that its leadership group, the ALI Council, directed that some provisions in the draft will be changed, NCOIL has received no assurance that many of the problematic areas that NOCIL has highlighted will be modified.

This ALI liability insurance Restatement project is still in progress. There is time for further modification. Thus, we believe it is critical that you review and evaluate this ALI project before it is finalized due to your standing with the ALI as a State Judicial Presiding Jurist. NCOIL has pointed out specific Sections of the proposed Restatement where modification is needed to avoid impinging on the legislative prerogative. For example:

Section 8, which imposes a new “substantiality” requirement for determining whether an insured’s misrepresentation was material. This is at odds with existing statutory and common law governing misrepresentations and rescission. Existing law asks whether or not — but for the misrepresentation — a policy would have been issued on the same terms, not whether it would have been issued only on substantially different terms.

Section 27, which imposes responsibility for damages for insurer breach of settlement duties, including punitive damages awarded against the policyholder. This proposed rule disregards individual states’ public policy determinations concerning insurability of punitive damages and is unsupported by any common law rulings.

Section 36, which would excuse late notice under a claims-made and reported policy if the claim is considered to be too close to the end of the policy term to permit reporting during the policy period and the policy does not contain an extended reporting period. This overrides insurance contract terms. Whether an extended reporting period should be required in this context is a legislative judgment.

Sections 48, 49(3) and 51(1), which introduce broad one-way fee-shifting and override legislative determinations concerning whether and when there should be any departure from the American Rule concerning who bears litigation fees.

I also want to point out that, in addition to the above provisions, NCOIL is very concerned with provisions of the proposed Restatement that go beyond established common law, which include:

Section 3, which departs from the settled insurance law “plain meaning” rule. The alternative approach proposed in the Restatement is a departure from settled insurance law in approximately 40 states.

Section 13(3) which forbids reliance on undisputed non-liability facts in determining the duty to defend, except in four cases. This alters the common law standards and would force a defense of uncovered claims, thereby increasing costs.

Section 19, which imposes a forfeiture of coverage defense for certain breaches of the duty to defend. It is a punitive provision and does not adhere to the common law.

In light of these concerns, NCOIL’s Executive Committee has passed a Resolution expressing its deep concerns regarding this ALI project, a copy of which is enclosed with this letter. As NCOIL considers further steps consistent with the enclosed Resolution, and as the ALI project progresses, I write both to urge your involvement in the ALI process, and to express NCOIL’s hope that significant changes will be made to the direction of the ALI Restatement of the Law, Liability Insurance project to avoid the problems seen in the drafts produced to date.

Developing a body of aspirational common law, particularly from a group as influential as the ALI, could lead State legislatures to step in to codify existing liability insurance law. Given the significance of this ALI project to insurance law and the insurance system, we believe that members of the judiciary should exercise their right to evaluate and be heard on this ALI Restatement project. This project presents significant questions about the expectations for a Restatement to serve as a resource for the judiciary on the existing common law, as well as the implications of allowing such a project to tread on legislative prerogatives and propose serious changes in insurance law.

We therefore urge you to alert your colleagues to our concerns and to engage with the ALI on the important issues raised by this proposed Restatement project.

Very truly yours,

Thomas B. Considine
Chief Executive Officer
National Council of Insurance Legislators

National Council of Insurance Legislators (NCOIL)

Resolution Encouraging the American Law Institute to Materially Change the Proposed Restatement of the Law of Liability Insurance
Adopted by the NCOIL Property and Casualty Insurance Committee on November 16, 2017, and the NCOIL Executive Committee on January 5, 2018
Sponsored by Sen. Neil Breslin (NY) and Sen. James Seward (NY)

WHEREAS, the American Law Institute (“ALI”) intends to publish a Restatement of the Law of Liability Insurance (the “proposed Restatement” or “Restatement”); and

WHEREAS, ALI Restatements have traditionally been held in high regard and relied upon by courts as authoritative references regarding established rules and principles of law; and

WHEREAS, such Restatements, in the ALI’s own words, are “primarily addressed to courts” and “aim at clear formulations of common law and its statutory elements of variations and reflect the law as it presently stands or might appropriately be stated by a court” (ALI Style Guide, 2015); and

WHEREAS, NCOIL members became aware of this proposed Restatement in the spring of 2017 and upon review of the draft, identified several areas which, contrary to the above-stated intent, are inconsistent with well-established law and purport to address matters which are properly within the legislative prerogative; and

WHEREAS, NCOIL, through its Chief Executive Officer, Thomas B. Considine, addressed a letter dated May 4, 2017 (“the Considine letter”), to ALI leadership in an effort to identify particular concerns and effect reconsideration of and significant changes to the proposed Restatement; and

WHEREAS, NCOIL members were encouraged to learn that, after receipt of the Considine letter, ALI leadership made the decision to defer a final vote on the proposed Restatement until 2018, with the recognition that the Restatement would benefit from another year of work; and

WHEREAS, the subsequent drafts of the proposed Restatement have reflected only very minor changes to the insurance legal rules proposed and have no substantive changes in the rules proposed on the topics of particular concern identified in the Considine letter; and

WHEREAS, during its General Session on November 16, 2017, NCOIL hosted a panel presentation which included the proposed Restatement’s lead Reporter, and it was apparent from Reporter commentary that no or minimal substantive changes to the proposed Restatement are anticipated before it is submitted to the ALI Council and then the ALI membership for final approval;

NOW, THEREFORE, BE IT RESOLVED THAT NCOIL urges ALI leadership, members and Reporters to abide by ALI’s own acknowledgement that “[a]n unelected body like The American Law Institute has limited competence and no special authority to make major innovations in matters of public policy,” and instead afford proper respect to the legislative prerogative, and the expertise and the jurisdiction of NCOIL members; and

BE IT FURTHER RESOLVED THAT NCOIL urges the ALI to effect meaningful change to the proposed Restatement so that it is consistent with well-established insurance law and respectful of the role of state legislators in establishing insurance legal standards and practice; and

BE IT FURTHER RESOLVED THAT, should such meaningful change not occur prior to its final approval, NCOIL urges that the Restatement of the Law of Liability Insurance should not be afforded recognition by courts as an authoritative reference regarding established rules and principles of insurance law, as Restatements traditionally have been afforded; and

BE IT FURTHER RESOLVED THAT NCOIL urges state legislators across the country to adopt resolutions declaring that this Restatement should not be afforded such recognition by courts; and

BE IT FURTHER RESOLVED THAT NCOIL shall develop and promulgate, as appropriate, model legislation intended to maintain the viability, predictability and optimal functionality of the insurance market and its practices; and

BE IT FURTHER RESOLVED THAT, a copy of this Resolution shall be sent to ALI Leadership, the reporters of the Restatement of the Law of Liability Insurance, and further published in such a manner to reach and inform ALI members, and

BE IT FINALLY RESOLVED THAT a copy of this Resolution expressing NCOIL’s concern that the Restatement does not afford proper respect to the expertise and jurisdiction of state insurance legislators and that the Restatement of the Law of Liability Insurance should not be afforded recognition as an authoritative reference, shall be sent to state chief justices, state legislative leaders and members of the committees with jurisdiction over insurance public policy, as well as to all state insurance regulators.

NCOIL To Have Star-Studded Speakers At 2018 Spring Meeting

 

For Immediate Release
February 27, 2018
Contact: Paul Penna
(732) 201-4133

NCOIL TO HAVE STAR-STUDDED SPEAKERS AT 2018 SPRING MEETING
Georgia Governor Deal, Florida CFO Patronis Highlight Special Guests

Manasquan, NJ – NCOIL is proud to announce a star-studded list of speakers and presenters at the 2018 Spring Meeting in Atlanta, GA including Georgia Governor Nathan Deal, who will keynote the Welcome Breakfast; Florida CFO Jimmy Patronis, who will keynote the luncheon on Saturday; CCIIO Director and CMS Deputy Director Randy Pate who will participate in the Health General Session “Health Insurance Exchanges in the Trump Administration- Are Waivers the Solution?”; and FEMA Assistant Administrator for Federal Insurance David Maurstad will participate in the Joint State-Federal Relations and International Issues Committee “Discussion on the Status of the NFIP and State Flood Insurance Markets.”

“Tom and the team have done a fantastic job putting together a comprehensive agenda with top-tier speakers and presenters” said AR Sen. Jason Rapert, NCOIL President. “Our continued growth as an organization is in no small measure because of these speakers and agendas that are insightful,
educational and allow us to solve policy challenges.”

In addition, 5 Insurance Commissioners/Directors are registered to attend the Spring Meeting including SC Director and NAIC Vice-President Raymond Farmer; NC Commissioner Mike Causey; MS Commissioner Mike Chaney; GA Commissioner Ralph Hudgens; and NH Commissioner Roger Sevigny. There will be 11 Insurance Departments represented at the Spring Meeting. Registration for the Spring Meeting has already exceeded total registrants for last year’s Spring Meeting in New Orleans and there are more than 45 legislators from 24 states registered.

“We strive to continually listen to and learn from speakers that can help NCOIL legislators make informed public-policy decisions on a variety of insurance subject matters” said Commissioner Tom Considine, NCOIL CEO. “That, coupled with the timeliness with which NCOIL deals with policy
matters, has led to reinvigorated NCOIL meetings.”

The 2018 NCOIL Spring Meeting will be held at the Whitley in Buckhead, GA from March 2nd to March 4th. A full agenda can be viewed here –http://ncoil.org/wp-content/uploads/2018/02/AtlantaSchedule-2-22-18.pdf and registration is still open at www.ncoil.org/register-now.

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NCOIL is a legislative organization comprised principally of legislators serving on state insurance and financial institutions
committees around the nation. NCOIL writes Model Laws in insurance, works to both preserve the state jurisdiction over
insurance as established by the McCarran-Ferguson Act seventy years ago and to serve as an educational forum for public
policy makers and interested parties. Founded in 1969, NCOIL works to assert the prerogative of legislators in making
state policy when it comes to insurance and educate state legislators on current and perennial insurance issues.