Farmers Claim Supreme Court Opinion

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Here's the link. It's a long case. Best, Mike. http://www.publications.ojd.state.or.us/S053405.htm

From: Abrahamson [mailto:drscott@...] Sent: Thursday, March 13, 2008 6:41 PM Subject: Re: PIP staute

OK, gets the “Big Brain Award” for the day.But don’t rest on your laurels. Tomorrow is another day, counselor.Meanwhile, great email.Excellent reasoning.Can you publish or cite how we can read the Munson/ Goddard case?( E. Abrahamson, D.C.)Chiropractic physicianLake Oswego Chiropractic Clinic315 Second StreetLake Oswego, OR 97034503-635-6246Website: http://www.lakeoswegochiro.com

From: <msmith@...>Date: Thu, 13 Mar 2008 17:16:34 -0700vsaboe <vsaboe@...>, Bobadilla <melissa@...>, " D Beebe, D.C." <daniel.beebe@...>, oregondc < >Conversation: PIP stauteSubject: RE: PIP staute I would argue that the entire statutory provision should be revoked for the following reasons: First, it is unnecessary. If the insured commits fraud or misrepresentation in submitting a proof of loss (in a PIP case, typically the PIP application itself is the proof of loss, but the carrier can demand either a statement under oath, recorded statement, or affidavit), then the PIP carrier would be entitled to relief against the insured for return of all benefits paid. To have the insurer be able to unilaterally expunge those paid benefits from a clinic not a party to the transaction without any due process raises some big problems. Second, the statute is incredibly vague ("If . . . benefits are paid based on information that appeared to establish proof of loss"). What the hell kind of a standard is that?? Appeared to whom? What appeared? That phrase is just a complete joke and nobody but the insurance employee who wrote the phrase could tell you what it is supposed to mean. Third, the statute gives complete, unfettered, and undefined discretion to the insurer to "determine[]" that it "was not responsible for the payment. . . ." Again, what the hell kind of a standard is that?? The insurer is both judge and jury!! Fourth, the statute violates procedural and substantive due process (color of state law) by forcing doctors to part with their property based upon the unfettered discretion of an insurance adjuster. The problem with automatically being able to get the money back from the health care provider is that often times, the provider continues to provide care upon reliance that the PIP carrier has paid or has agreed to pay for prior treatment. That's how we dealt with the Blue Cross demands for refund. It's not fair to get money back from the provider when the provider was induced to continue providing treatment based upon representations made by the PIP carrier. What's more, the provider was probably paid a lesser sum by the PIP carrier, because it was a PIP claim with fee schedules. Also, the health care provider is not involved in the original fraud or misrepresentation that "appeared" in the PIP application that the insurer later determines on its own made it not responsible for the payment. If the provider was involved (and we can all imagine a scenario in which a provider might be involved) then the insurer has legal recourse against the provider as well, even without this statutory nonsense. I want to know who wrote this statute, how it got in, etc., because I bet that there's a very deceitful story behind it all. This statute was not written by a lawyer (or if it was, the lawyer cut a lot of classes in law school). I would advocate for trashing the whole thing. I think we should line up every known case where the insurance companies have attempted to utilize this statute in a bogus manner (Dr. Garreth Mac gave one example, I've got one from State Farm, so there must be others as well). This is a good time to do it, too. The Oregon Supreme Court last week upheld a several million dollar punitive damages award against Farmers for some deplorable claims handling to which their claims adjusters, supervisors, and attorneys were parties, and the Supreme Court set out in detail all that Farmers adjusters and their attorneys did. In one of the greatest Oregon Supreme Court quotes in recent memory, the Court stated: "Several reasons influence our choice, but the primary one is the degree of [Farmer]'s betrayal of its obligation to protect Munson. The drumbeat march of [Farmer]'s disregard for Munson's interests began with Munson's initial claim and persisted, despite the most obvious reasons that it should end, through the calamitous verdict against him. There may be possible courses of behavior in the area of economic wrong that would be even worse, but none leaps to mind. This case fully justifies the highest permissible award . . ." [italics added] I encourage you all to read the italicized phrase several times. Supreme Court judges can be very subtle and coy with the power of their words. I have never seen our high court condemn a litigant's behavior more strongly. The Oregon Supreme Court is saying that it has considered and viewed Farmer's handling of the claim in the Goddard case, and not one single other example of corporate fraud, deceit, or outrageous conduct in the history of humankind "leaps to mind" as being worse. Clearly the Supreme Court wrote its opinion fully aware of the ENRON debacle, all the recent insider trading cases that cost shareholders, and all the other corporate greed and fraud cases in the past years, etc. They are saying that what Farmer's did to poor Mr. Munson in the Goddard case, in their estimation, was worse. WOW! They were so obviously disgusted, particularly with the Farmers attorneys who are officers of the court, that the attorneys were identified by first and last name next to their deeds and misdeeds. I say NOW would be a good time to pass some consumer friendly insurance claims handling legislation, even a "Fair Claims Handling" Act that gives claimants rights against insurers, not just the Attorney General's office (when's the last time that agency brought any insurance claims action against an insurer? Anyone?? Anyone?? Bueller?? Bueller??) G. .

From: [mailto: ] On Behalf Of vsaboeSent: Thursday, March 13, 2008 4:15 PM' Bobadilla'; ' D Beebe, D.C.'; 'oregondc'Subject: RE: PIP stauteSo, you dear “legal braincases” (pun intended!) what would be the wording you would use to fix the problem….? As lobbyist for the Chiropractic Assoc. of Oregon I would be willing to start working on proposed legislation with the OTLA’s PIP Chair Neil ASAP!Vern Saboe DC

From: [mailto: ] On Behalf Of BobadillaSent: Thursday, March 13, 2008 3:49 PM D Beebe, D.C.; oregondcSubject: RE: PIP stauteI agree because one has to be able to move on with life and not feel that someone can come and sue you for something you did X’s years ago. The purpose of a statue of limitations SOL is for everyone to be able to move forward without the fear of something coming back to haunt you. If not why have SOLs? No one would be able to stay in business: attorneys, doctors, banks, etc. There are SOLs that even the IRS can’t come after you after so many years… And this is uncle Sam giving up his right to get his part of the pay check…I hope this issue gets clarified in the upcoming session. OTLA and the Chiropractor’s Board should work together to get this mess cleaned up. It would be awful that one of us attorneys has to take it up all the way to the Oregon Supreme Court to rule on this mess. I am still shocked that this got past all of us and frustrated. I relayed this to our OTLA legislative person—good old Neil. A. BobadillaPickett Dummigan Aguilar LLP621 SW on Street, Suite 900Portland, OR 97205Office: 503.223.7770Fax: 503.227.2530melissa@...