Insurance industry leaders and trial lawyers don't often agree. However, reforming New York State's no fault insurance law is something that both of them can get behind, though there is disagreement on how that exactly can happen.
The New York Comprehensive Automobile Insurance Act, otherwise known as the "No Fault Act," was signed in 1973, a time when only 62% of U.S. adults had insurance and litigation for damages incurred in car accidents began clogging state courts.
Insurance groups and legislators tried to ease the burden and made a compromise — that those involved in car accidents, regardless of fault, would be entitled up to $50,000 for medical and personal injuries.
"They said what we're going to give you on the other side, we're going give you a system that works," Richard Binko, former president of the New York Trial Lawyers Association (NYTLA), tells PC360.
But the system has run amuck in the past decade with a number of litigation actions that have muddied the legal waters for those injured and looking to get money from insurers. There have also been a number of fraud cases that insurers and government officials say have directly raised premiums for New Yorkers.
"We in law enforcement are keenly aware that wherever there is a large pot of money, there are criminals looking to steal it," testified former Chief Assistant District Attorney of Manhattan, Daniel Alonso, to the Transportation Committee last year. "And one of the larger pots of money is that mandated by New York law… no fault insurance."
In 2004, the NYPD and the Queens District Attorney's Office charged more than 30 people in an elaborate high paying no fault fraud scheme that included lawyers, doctors and medical clinics. The ring defrauded insurance companies of over $236,000, according to officials.
Last year, Gov. Andrew Cuomo shut down 18 doctors and medical providers for abusing no fault, and at the end of 2013 there were over 13,000 cases of alleged no fault fraud, according to records from New York's Department of Financial Services (DFS).
"It's really the non-medical professionals who are running these businesses," says Mary Lowenburg, supervisor of the Auto and Insurance Fraud Unit at the Queens District Attorney's Office. "It becomes attractive because of the fifty-thousand threshold in the law. Every person in that car gets a $50,000 allotment prior to even talking about a lawsuit. They're inundating insurers and they can't possibly investigate every claim."
Since 2003, the number of no fault fraud cases has dramatically fluctuated, dropping down to 14,000 cases in 2004 before rising 10% every year starting in 2006. The number of no fault fraud cases slowly decreased in 2010, but then jumped back up in 2012. The trend is now decreasing slightly again. Every year, almost half of all fraud cases brought to the state are suspected of no fault fraud.
Alex Tisch, a former associate council at DFS's fraud division, testified in front of the state's Insurance Committee in 2010 that no fault fraud was severely problematic for the department, saying it's, "a truly alarming trend in the number of cases."
At the center of no fault fraud is the "runner," a person who stages accidents and recruits people at all levels to send off bogus medical claims to insurance companies. But runners are notoriously hard to catch due to legal minutiae.
"Lawmakers have been trying to pass anti runner bills for years to make the runner an accomplice in insurance fraud," says Lowenburg. "It's not criminal right now to pay a person to go to Clinic A on Queens Boulevard, unless we can prove fraud."
And that is sometimes the hardest part.
"Patients don't want to cooperate against the runners, they're afraid of reprisal. And the act of paying someone to go to a clinic, isn't alone, proof beyond a reasonable doubt of fraud," Lowenburg explains. "Remember when banks used to give you the free blender if you signed up?"
But there are those who think that the insurance industry, who has consistently said that increased auto premium rates for New Yorkers is the highest in the nation because of rampant no fault fraud, have overblown its effects.
"Insurance companies keep making these claims but never show the data," says Michael Hutters, who is a member of the New York State Academy of Trial Lawyers. "I think the trial lawyers have tried to say for years that we'll work with you but insurers keep saying that it's proprietary."
Binko, at the same hearing where Tisch testified, said that the amount of money insurance companies have paid out due to no fault has only been 3%, and urged state senators to pass an Auto Sunshine Bill which would force no fault insurance providers to release their pricing data.
"There was a fallback position of at least opening it up to those who are on the insurance committee," Binko says to PC360. "They have absolutely resisted."
But insurers say that they've been transparent enough, having to already file a number of their financial activities with DFS.
"Never before in history has the price of auto insurance been more transparent," argues New York Insurance Association (NYIA) President Ellen Melchionni. "You can get a multitude of quotes literally within minutes — either through an agent or by contacting a company directly."
"All insurers are required to file annual statements with a state regulatory agency," Melchionni tells PC360.
But for trial lawyers, the biggest problem with no fault isn't the fraud done by medical providers, instead it's the wording of the law that has made reimbursement for consumers tough.
In 2001, Richard Oberly, a dentist, was being transported to a hospital when the ambulance struck a curb and a pump fell on his arm. Oberly claimed that the accident caused an injury making it impossible for him to practice, and sued Bangs Ambulance under the theory that the No Fault Act lists off "permanent loss" of a body part as a reason for paying. The courts, though, ruled that "permanent" would have to mean a 100% loss.
The ruling, Binko says, made it impossible for insurance claims adjusters and medical doctors to do their jobs.
"It threw that whole practice out," Binko says. "It took away the objective ability of claims adjusters and it was confusing for both sides. Insurance carriers had a rough time, we had a rough time."
Trial lawyers also argue that the law is antiquated and doesn't make sense with how medical costs and technologies have skyrocketed since the bill's passage.
"We haven't even changed the statute for CT scans or MRI's which are such a daily reliance," says Binko. "We did not know what an MRI machine was in 1971. All of that was Buck Rogers science fiction back then."
But lawmakers and insurance groups stand by the problem that no fault is causing systemic issues within the courts.
"We chase the clinics away and they come back as another incarnation," says Lowenburg. "At that point you need to have a whole other investigation."
Despite their disagreements, both sides have actively lobbied state lawmakers in making changes with the law.
The NYIA has supported a number of bills this year including another anti-runner type bill, but it's unknown how far that will go in either the senate or assembly.
It's a failed attempt, Lowenburg says.
"Every year it seems that it gets past partially but then the bills die," she says.
Binko agrees, but says that the reason for partial passage is because there's too much that should be fixed all at once, which leaves the future of fixing the No Fault Act in the dust.
"We were in support of a runners bill because we don't want see that. That's not pro-consumer, either," says Binko. "But I don't think one thing can pass unless there's ten things that pass at the same time."
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