Author: WorkCompAcademy

Three days after Berkshire Hathaway Inc. subsidiaries Applied Underwriters and its California Insurance Co affiliate agreed to stop selling disputed workers’ compensation policies in California, the company has again been has been sued now by a New York bicycle courier company over another alleged illegal scheme to cheat employers buying workers’ compensation policies.

California’s insurance commissioner ruled against Berkshire in June over workers’ compensation policies after determining that the company duped a small business, Shasta Linen Supply, and circumvented a review of rates. Earlier this month, the company agreed to stop selling the policies in dispute in California. The regulator said the Berkshire businesses charged customers’ rates which hadn’t been approved by the regulator.

According to a Reuters report, the new civil complaint, filed late Friday by Breakaway Courier Systems, came as Berkshire’s Applied Underwriters unit faces scrutiny over its workers’ compensation policies, including some that have been banned by California, Vermont and Wisconsin.

Breakaway, with about 300 employees, accused Berkshire and Applied of “siphoning” premiums through a web of illegal shell companies, with diverted premiums going to unlicensed out-of-state insurers.

The plan amounted to a “reverse Ponzi scheme” where unsuspecting employers expecting to buy affordable policies instead bought costly “reinsurance” requiring them to cover each other’s losses, leaving taxpayers on the hook for shortfalls when too many workers are injured on the job, Breakaway said.

“Breakaway thought it was purchasing a workers’ comp policy with a profit-sharing component if its losses were low,” Raymond Dowd, its lawyer, said in an interview. “Instead it purchased a complex derivative swap labeled misleadingly as a ‘reinsurance participation agreement’ that put all the risk on Breakaway.

“Berkshire’s schemes break multiple laws, including that you cannot collect insurance premiums if you are not licensed,” Dowd added.

Neither Berkshire nor Applied immediately responded to requests by Reuters for comment.

The lawsuit, filed in the state supreme court in Manhattan, seeks at least $18 million of damages, plus a declaration that the reinsurance participation agreements (RPAs) are void and against public policy.

It shines a spotlight on a lesser-known part of Berkshire’s insurance operations, which also include Geico car insurance and General Re reinsurance.

In the recently settled California case, both insurers denied wrongdoing. California Insurance Commissioner Dave Jones said their sale of a policy to Shasta Linen Supply Inc of Sacramento subjected the employer of 63 to hundreds of thousands of dollars of extra costs.

Similarly, Breakaway’s RPA put that company at “imminent financial risk,” and was “not understandable” by ordinary purchasers, Martin Schwartzman, former first deputy superintendent of New York’s insurance department, said in a filing accompanying the complaint.

The case is Breakaway Courier Corp d/b/a Breakaway Courier Systems v. Berkshire Hathaway Inc et al, New York State Supreme Court, New York County, No. 654806/2016.

Central Freight Lines Inc. and Trendsetter HR have settled a lawsuit over workers’ compensation, ending a three-year litigated dispute.

The carrier, based in Waco, Texas, signed a deal with Trendsetter in 2008 to perform administrative services for the company and its employees. For more than three years, Central Freight alleged Trendsetter accepted payments but failed to deposit the funds for workers’ compensation coverage.

Central Freight stopped making payments after it conducted an audit, and Trendsetter sued for breach of contract in 2013.

However, a jury in December 2015 ruled Trendsetter breached the contract and awarded Central Freight $1.85 million. Jurors found that Trendsetter-HR and its owner, D.W. Bobst, failed to honor the terms of the contract and wrongfully billed Central Freight for services and coverage that were never provided. Central Freight is asking that interest be added to the verdict amount, which could push the final award to more than $2 million.

“It’s rare to receive a verdict of this magnitude in a counterclaim, but Trendsetter’s failures and wrongs were particularly egregious,” said attorney William Chamblee, who is with the Dallas firm of Chamblee Ryan, which represented Central Freight. “Trendsetter, its affiliates and its owner made numerous misstatements to my client in an effort to hide the facts and justify their wrongdoing,” Chamblee said.

Trendsetter reportedly signed a contract with Central Freight in 2008 before adding several amendments to broaden the administrative services provided to the company and its employees, according to a statement from the law office. “For more than three years, Trendsetter accepted payments from Central Freight but failed to properly deposit the funds for workers’ compensation coverage,” according to the statement.

Central Freight Lines ranks No. 94 on the Transport Topics Top 100 list of the largest U.S. and Canadian for-hire carriers, and has operations in California.

The case was on appeal when the deal was reached. “Central is satisfied that this settlement will allow both parties to move on.” said its attorneys.

Trendsetter owner D.W. Bobst said in a statement that neither he nor any affiliates were implicated in any wrongdoing, calling this a resolution to a contract dispute.

Terms of the settlement were not disclosed

Trendsetter also sued AIG for failure to provide workers’ compensation to Central Freight Lines, claiming that it directed the insurer to do so. That case is ongoing.

Los Angeles County Superior Court ruled in favor of Allstate Insurance Company and the State of California in a lawsuit topping more than $2.3 million that ends the illegal ownership, kickbacks and fraudulent operation of two medical clinics in Los Angeles.

In its lawsuit, Allstate alleged chiropractor Byum Suk Kim violated the state’s Insurance Frauds Prevention Act when he submitted to Allstate more than 90 claims for treatment of patients at the two clinics that were illegally owned in violation of California’s Moscone Knox Professional Corporation Act. In its complaint, Allstate alleged the two clinics, Wilshire Spinal Disc Clinic, Inc. and Allied Medical, Inc. were held out to the public as legitimate medical clinics incorporated in the State of California, but were actually owned and operated by Byum Suk Kim, D.C. in violation of the Moscone Knox Professional Corporation Act and Business & Professions Code sections 2052, and 2400, commonly referred to as the “corporate practice of medicine bar.” Both clinics are no longer operating.

Judge Terry A. Green agreed with Allstate and ordered Kim to pay $1.8 million in penalties, plus over $582,000 in assessments and fees – a $2.3 million judgment.

“Submitting even one false insurance claim is more than just a bad idea; it’s fraud, and insurance fraud is a crime,” said Allstate’s California Field Senior Vice President Phil Telgenhoff. “Fraud drives up the cost we all pay for insurance by stealing millions of dollars from insurers. This cannot and will not be tolerated in California or anywhere. Allstate will fight fraud to help protect our customers and keep insurance costs down.”

Allstate’s suit identified Kim as a chiropractor owning and operating the two medical clinics. The judgment was based on evidence submitted by Allstate showing Kim engaged in clinical and billing fraud in connection with claims that were submitted to Allstate, which included hundreds of individual violations of California Penal Code section 550. Specifically, the evidence showed Kim was responsible for the preparation of 91 separate reports for patients allegedly treated by him at Wilshire and Allied, each of which contained misrepresentations in violation of section 550 regarding the level and type of treatment purportedly provided.

Additionally, the billing records for the treatment allegedly provided were likewise fraudulent, as the evidence presented by Allstate showed there was illegal “up-coding” for services. The judgment was based on Allstate proving the medical records, narrative reports, and bills of patients purportedly treated by Kim amounted to billing and clinical frauds perpetrated and carried out by Kim on a systematic basis at both Wilshire Spinal Disc Clinic, Inc. and Allied Medical, Inc.

This is the second multimillion-dollar ruling against insurance fraud that Allstate has successfully argued in Los Angeles County Superior Court in 2016.

Uber won a courtroom victory on Wednesday when an appeals court ruled that drivers are subject to individual arbitration in a lawsuit over background checks, a ruling that might help the ride-hailing company fend off another costly class action lawsuit filed by its drivers.

While the Ninth U.S. Circuit Court of Appeals found that agreements signed by two former drivers for the service over background checks “clearly and unmistakably” require legal disputes be settled by a private arbiter, the reasoning may be applied to another class action lawsuit filed by drivers over the company’s employment classifications.

Uber agreed to settle that classification lawsuit earlier this year — an agreement that was rejected by a federal judge last month. Arbitration is a method frequently used by companies for resolving legal conflicts outside of the court system.

Uber Technologies Inc.’s message to the judge who was asked to approve its $100 million settlement with drivers last month was clear: take it or leave it. Bloomberg reports there is an escalating game of courtroom brinkmanship, Uber has hit what was an impasse with U.S. District Judge Edward Chen who presides over the federal class action suit pending in San Francisco, its demand that, as part of the deal, he erase his own order intended to protect the ride-hailing company’s drivers.

And indeed Judge Chen rejected the proposed settlement in August. Uber drivers contended in the lawsuit they should be deemed employees and reimbursed for expenses such as gasoline and vehicle maintenance. Those expenses are now borne by the drivers. The proposed settlement would have kept drivers classified as independent contractors. Several drivers who were part of the class filed objections with the court, particularly because the proposed amount was well below the total potential damages in the case of roughly $850 million.

In an order handed down last August in San Francisco, US District Judge Edward Chen said that, despite changes to its policies that Uber was ready to enact, the proposed settlement on the whole “is not fair, adequate, and reasonable.” Had it been approved, the agreement would have impacted about 385,000 Uber drivers California and Massachusetts involved in the class-action suit.

The U.S. 9th Circuit Court of Appeals in San Francisco said with Wednesday in the published case of Mohamed v Uber Technologies that drivers who signed up with Uber in 2013 and 2014 must go to arbitration, not the courts, to resolve disputes with the company. Judge Chen previously ruled in the companion classification case that the arbitration agreements were unenforceable and unconscionable. But the appeals panel said Chen lacked the authority to make that call because the contracts require an arbiter to decide “all matters.”

The ruling on Wednesday applies directly to two drivers’ challenge of Uber’s background-check practices in a proposed class-action lawsuit. But it could have an effect on dozens of lawsuits across the nation. Uber drivers have used the threat of a class-action lawsuit to extract concessions from the San Francisco company. Having to go to arbitration largely takes the specter of mass litigation off the table.

Now, Uber could drop the settlement talks altogether in the classification case because the appeals court could go on to unwind Chen’s certification of a class of drivers, forcing most of the drivers to individual arbitration. One-one-one fights typically result in smaller benefits for complainants. The class currently includes some 240,000 drivers from California and Massachusetts. If the arbitration agreements are enforced, the class could be reduced to 8,000 people – those who had rejected the arbitration agreements when they joined Uber’s driver roster.

The California Insurance Commissioner approved an order agreed to by California Insurance Company (CIC) and Applied Underwriters Captive Risk Assurance Company, Inc. (AUCRA), under which they will stop selling workers’ compensation policies that the two Berkshire Hathaway companies used without filing key addendums to the policies (called EquityComp) with the Department of Insurance for the commissioner’s review and approval, and will work with the department’s actuaries to agree upon fair terms for calculating future claims that would apply to existing EquityComp policies.

The agreement to submit to a cease and desist order was in response to the commissioner’s June 28, 2016 notice that a hearing would be held to decide whether CIC and AUCRA should be ordered to cease and desist from issuing new unapproved EquityComp policies.

The order halts the issuance of new EquityComp policies unless and until the commissioner approves them. The order also provides substantial relief under existing EquityComp policies, which includes eliminating punitive requirements for posting collateral, and specifying new, appropriate loss development factors. The order does not affect the ability of any employer to challenge the legality of the EquityComp policies.

Commissioner Jones’ action stemmed from his precedential decision that a complex insurance scheme in the Shasta Linen case circumvented regulatory review and cannot be sold in California unless it is filed and approved. Shasta Linen, a small employer, purchased an EquityComp policy from CIC and AUCRA. Shasta Linen brought a case before the commissioner, challenging the legality of the policies.

The commissioner found that the insurance companies issued the policies and rates without his approval, as is required by law. The commissioner also ruled that the companies designed the unusual and complex program with the intent of avoiding the review of insurance regulators.

Among the most troubling features of the EquityComp policy was the imposition of unexpected and greatly excessive collateral requirements upon termination of the employers’ policies. The collateral requirements had serious and unexpected consequences for many employers.

The policies also forced an employer who disputed the insurers’ decisions to arbitrate their disputes in Tortola, British Virgin Islands, or in other locations outside of California. The expense of a remote arbitration made it unreasonably difficult for employers to challenge the insurers’ decisions. The commissioner’s order requires CIC/AUCRA to arbitrate disputes with the policyholders in California.

“Insurance companies are required to file rates and terms so we can make sure they are complying with the law,” said Commissioner Jones. “These filing requirements were put in place to protect businesses from insurers seeking to take advantage of their market power – for example, the unfiled insurance scheme sold to small business Shasta Linen shifted the risk back to Shasta Linen, had prohibitively expensive renewal and cancellation penalties, and required disputes to be arbitrated in the British Virgin Islands.”