Industry News: In this Issue... October 30, Industry News: DOI News: DOI Issues Bulletin Thanks Company 5 Partners

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1 Industry News: U.S. District Court Issues Memorandum and Order on Two Lawsuits Involving Progressive Direct... Last week, the U.S. District Court, District Court of Massachusetts handed down a Memorandum and Order on Motions for Summary Judgment made by Progressive Direct Insurance Company in lawsuits brought by Wanda Estrada, Walter Estrada, J.E., Natalie Estrada, Carmen Badillo, and Jose Burgos, individually and on behalf of all other persons similarly situated, alleging unfair and deceptive practices in the online sale of automobile insurance policies. The plaintiffs purchased automobile insurance from Progressive Direct Insurance Company and claim they were denied personal injury protection (PIP) benefits after they were involved in automobile accidents because they purchased insurance policies with an $8,000 PIP deductible. The plaintiffs brought suit against Progressive, contending that they only purchased policies with a deductible because of Progressive s unfair and deceptive practices. The complaint alleges violations of M.G.L. c. 93A, 176D, and 175. Progressive filed two motions for summary judgment: one against plaintiffs who purchased their insurance by telephone and one against plaintiffs who purchased their insurance through the Progressive website. The motion for summary judgment against the telephone plaintiffs was granted, and the motion for summary judgment against the website plaitiffs was granted in part and denied in part. The motion was denied with respect to a count alleging that Progressive violated M.G.L. c. 93A with respect to the personal injury protection provisions of policies sold online. October 30, 2014 In this Issue... Industry News: U.S. District Court Issues Memorandum and Order on Two Lawsuits Involving Progressive Direct 1-2 DOI News: DOI Issues Bulletin MAIA News: Member Milestones 4-5 Lapointe Insurance Agency Recertified as 5 Star Agency Final Flight of Ads Set for November Thanks Company 5 Partners According to the order: Plaintiffs first contend that defendant violated Chapter 93A by recommending and defaulting customers with health insurance to plans with an $8,000 PIP deductible. They contend in substance that defendant recommended such deductibles to customers with health insurance, and its website defaulted to such deductibles, because it wanted to improve its profits. They further contend that it did so even though it knew (1) that customers were confused by the options, (2) that the standard practice in Massachusetts was to recommend no dedctible, and (3) that customers with an $8,000 deductible would effectively have no PIP coverage. There is evidence that defendant [Progressive] knew that some customers confused the $8,000 PIP deductible with $8,000 of PIP coverage, and that some customers would not understand the practical implications of an $8,000 deductible (that is, the customer would have no coverage at all). There is evidence that insurers in Massachusettts generally did not recommend policies with $8,000 PIP deductibles, that that the usual practice was to recommend no deductible. And there is evidence that defendant resisted the [Dvision of Insurance] s request to change its website to recommend no deductible or explicitly ask if the customer wanted a deductible, contending that doing so would make them sell a higher number of less profitable policies... (continued on page 2)

2 Industry News... continued from page 1 2 There is at least some question whether plaintiffs could make out a Chapter 93A violation based simply on the fact that the website recommended and defaulted customers to policies with an $8,000 deductible instead of no deductible. However, plaintiffs also contend that it was unfair and deceptive for defendant to default customers to a policy that included an $8,000 deductible for both named insured and their household members when they could have obtained a policy with no deductible on their household members for the same price. According to plaintiffs, the website was deliberately confusing in that regard Taken as a whole, there is sufficient evidence to establish that defendant s website had the capacity or tendency to deceive. Under the circumstances, that is enough to show a violation under Chapter 93A. Defendant further contends that plaintiffs cannot prevail on a claim under Chapter 93A because there is no evidence that there was a casual connection between the alleged deception and plaintiff s loss.... Here, plaintiffs have come forward with evidence that they purchased automobile insurance with an $8,000 PIP deductible for themselves and their household because they were defaulted to that option by defendant s website. They contend that if defendant had defaulted them differently or explicitly told them they could obtain PIP coverage for their household members for the same price, they would have done so. Because they had large deductibles, they suffered losses. That is sufficient, under the circumstances, to establish causation n a Chapter 93A claim... Whether plaintiffs could have mitigated their loss by researching or contacing defendant about their PIP deductible is a question for trial. The Chapter 93A claim will therefore survive summary judgment unless defendant s conduct was protected by the statute s exemption provision.... Mass. Gen. Laws ch. 93A, 3, provides that [n]othing in this chapter shall apply to transactions or actions otherwise permitted under laws as administered by any regulatory board or officer acting under statutory authority of the commonweath or of the United States.... Defendant contends that because the DOI and AG s office allowed its website to remain running after they reviewed it, the website was affirmatively permitted by the laws of the Commonwelath. It is true that the DOI and AG s office reviewed the website, looked at the PIP deductible, and made recommendations regarding the website. However, there is no evidence that the DOI or AG s office explicitly approved the manner in which defendant s website defaulted customers to an $8,000 PIP deductible for themselves and their household members. Estrada, et al, v. Progressive Direct Insurance Company (Lawyers Weekly No ) (32 pages) (Saylor, J.) (USDC) Civil No FED) (October 20, 2014). NOTE: In its discussion of the PIP deductible, the Court alluded to a letter written to the Attorney General and the Commissioner of Insurance by MAIA in May of 2008 expressing concerns about Progressive s Website. Among other things, MAIA expressed concerneds about the $8,000 PIP deductible, stating that the quote process fails to explain that PIP provides benefits that may not be provided by health insurance -- like the cost of replacement services, lost wages, dental service, professional nursing and funeral services. DOI News: Division of Insurance Issues Bulletin Guidance Concerning Portable Electronic Insurance Under Chapter 175, Section 162Y of the Massachusetts General Laws... The Division of Insurance issued Bulletin on October 24, 2014, to all persons and business entities seeking to engage in the business of Portable Electronics Insurance in the Commonwealth of Massachusetts. The complete text of the bullletin is below: The Division of Insurance ( Division ) issues this Bulletin to provide further guidance with respect to the implementation of the requirements of Massachusetts General Laws ( Chapter ) Chapter 175, Section 162Y, concerning Portable Electronics Insurance. A. Background on the Regulation of Portable Electronics Insurance in Massachusetts The Portable Electronics Insurance Act, Chapter 175, Section 162Y, became effective on April 24, 2014 ( Section 162Y ), The purpose of this law is to regulate the licensing and sale of or offer of coverage for portable electronic devices. This coverage differs from the extended manufacturer warranty or service contract offered when consumers purchase a cell or mobile phone or similar device, laptop, tablet, OPS, portable media device, or other portable electronic device at retail establishments or online, Under the terms of Section 162Y, portable electronic insurance ( PEI ) may be offered to the consumer by employees and authorized representatives of a vendor that has been issued a PEI license by the Division of Insurance ( Division ). At every location where PEI is offered, written materials must be available which disclose information including the identity (continued on page 3)

3 DOI News... continued from page 2 3 of the insurer underwriting the coverage, key terms and conditions of coverage, claims filing information, a statement that the insurance purchase is not a requirement of the sale or lease of the device and that coverage may duplicate existing coverage under a personal homeowners or renters policy, Under Section 162Y, an insurer may write the coverage on a month-to-month or other periodic basis as a group or master commercial inland marine policy issued to the vendor with consumers as covered customers; consumers purchasing coverage then receive certificates of insurance as covered customers. The supervising entity, which is defined by statute as either the insurer or an insurance producer that is authorized by the insurer to supervise the PEI program, remains responsible for providing compliant consumer disclosures and supervising program administration, which must include a training program for employees and authorized representatives of the vendor. The effect of implementing Section 162Y will allow for the better regulation of the licensing and sale of or offer of coverage for portable electronic devices. Section 162Y also benefits consumers because it requires disclosure of the terms of the coverage being offered by the insurer and vendor, and Section 162Y requires that the vendor and insurer make sure that consumers are informed that the purchase of the PEI coverage is not required in order to purchase the cell phone or similar portable electronic device or the voice or data service in question. B. Further Guidance on Certain Provisions of Chapter 175, Section 162Y I. Portable Electronics Under Section 162Y(a), the term Portable electronics is defined as including electronic devices that are portable in nature, their accessories and services related to the use of the device. As noted above, this definition could include any form of electronic apparatus including but not limited to: cell or mobile phones or similar devices, laptops, notebooks, tablets, GPS units, portable media devices, memory sticks or thumb drives, pagers, audio/video/data recording or playback devices, scanning devices, remote sensors, messaging devices, personal digital assistants, two-way radios, or any other portable device or appliance of any kind or nature that accomplishes its purpose electronically. For purposes of this bulletin, a device will be deemed to be portable if it is capable of being easily carried or conveyed by hand. 2. Vendors Under Section 162Y(a), the term Vendor is defined as a person engaged in the business of portable electronics transactions directly or indirectly. For purposes of this bulletin, a vendor engaged in a portable electronic device transaction will be deemed to include corporations, partnerships, associations, sole proprietorships and similar entities. 3. Vendor Locations Under Section 162Y(b ), the supervising entity - the business entity that is a licensed insurer or insurance producer authorized by an insurer to supervise the administration of a PEI program - shall maintain a registry of vendor locations that are authorized to sell or solicit portable electronics insurance coverage in the commonwealth. Each supervising entity shall maintain this registry and make it available to the Division within 10 days of request for the same by the Division. 4. Brochures or Other Written Materials Under Section l 62Y( e ), at every location and website where PEI is offered to customers, brochures or other written materials shall be made available to prospective customers that, among other requirements, must: disclose that PEI may provide a duplication of coverage already provided by a homeowner s insurance policy, renter s insurance policy or other source of coverage; state that the enrollment in a PEI program is not required in order to purchase or lease portable electronics or services; summarize the key material terms and conditions of the PEI coverage; summarize the processes for filing a claim and cancelling the PEI coverage. Copies of such brochures or other written materials must be submitted to the Division, including any material changes that may be made to such materials, within 10 days of request for the same by the Division. 5. Training Program for Employees and Authorized Representatives of Vendors Under Section 162Y(h)(2), the insurer issuing the PEI either directly supervises or appoints a supervising entity to supervise the administration of the insurance program, including development of a training program for employees and authorized representatives of the vendors. Each supervising entity shall submit to the Division a syllabus of the training program developed pursuant to this requirement along with a certification that all employees, agents and authorized representatives involved in the issuance, sale or offering for sale of PEI coverage to customers have completed or will complete the training program prior to issuing, selling or offering for sale PEI coverage. Each insurer shall also provide to the Division a list containing each employee and/or authorized representative of a vendor that received training, including the name of the employee or authorized representative, the vendor, and the date and location, if any, where the training took place, within 10 days of request for the same by the Division. (continued on page 4)

4 DOI News... continued from page Policy Changes Under Section 162Y(l)(2), if an insurer changes the terms and conditions of a PEI policy, then the insurer must provide the vendor policyholder with a revised policy or endorsement and each enrolled customer with: a revised certificate, endorsement, updated brochure, or other evidence indicating a change in the terms and conditions has occurred; and a summary of material changes. 7. Refunds In the event of cancellation by the insurer or customer, the person paying the premium will be entitled to receive a refund or credit on any applicable unearned premium. 8. PEI License Application Under Section 162Y(o), a sworn application for a PEI license must be made and filed with the Division on forms set forth on the Division website. Applications must be submitted electronically as set forth in the online application instructions. Under Section 162Y(q), a vendor applying for a PEI license must pay to the Division a fee in the amount of $1,000 for an initial PEI license and $500 for each annual renewal of that license. These fees do not depend on the number of retail establishments that any vendor may have. C. Filing Materials with the Division PEI policy forms and certificates of coverage used in Massachusetts are required to be filed with the Division per Chapter 175, Section 191 according to the process described in Bulletin and the General Filing Instructions on the System for Electronic Rate and Form Filing (SERFF). The Division expects that all PEI policy forms issued or renewed be in compliance with the requirements of Chapter 175, Section 162Y and this bulletin. In order to insure uniform compliance with this bulletin, form filings already on file before the publication of this bulletin must be re-filed to demonstrate compliance with Chapte r 175, Section 162Y and this bulletin unless previously approved by the Division subsequent to the effective date of Chapter 175, Section 162Y and otherwise in compliance with this bulletin. When submitting policy form materials electronically through the Division s System for Electronic Rate and Form Filing ( SERFF ), please ensure that the filing indicates that the Type of Insurance selected in SERFF is Communication Equipment (Cellular Telephones). Because these products are generally considered Inland Marine coverage, the rates for such coverages are exempt from filing per Chapter 174A, Section 6. Any questions regarding this Bulletin should be directed to: Robert A. Whitney, Deputy Commissioner and General Counsel, (617) , robert.a.whitney@state.ma.us or Matthew M. Mancini, Director, State Rating Bureau, (617) MAIA News: Member Milestones... Lapointe Insurance Agency, Inc. Re-Certified as Five Star Agency... We re pleased to announce that Lapointe Insurance Agency, Inc. of Fall River, North Attleboro and Westport, MA underwent an intensive review in order to be re-certified as a Five Star Insurance Agency. The Five Star Award of Distinction is awarded by MAIA to an independent insurance agency that successfully completes a fitness review which examines an agency s five key imperatives: Customer Focus, Management/ Leadership Excellence, Human Resource Excellence, Process & Product Excellence and Future Success. The owners of the Lapointe Insurance Agency provide outstanding leadership that clearly defines future expectations and goals for the Agency. They also provide the support and guidance to align everyone so that there is a cohesive focus and effort at working on the priorities of the Agency. Pictured L - R: Alan Cooper, Consultant; Heather Kramer, MAIA VP of Training; and Lapointe Insurance Agency, Inc. principals Colette McKeon & William Lapointe. Focusing on the customer is paramount to all within the agency. They do an outstanding job at ensuring a high quality of work. They continually look for ways to improve and are certainly recertified as a Five Star Agent. Said Frank Mancini, CEO and President of MAIA. While we may provide the guidance and plans for the Agency, we know we could not do it without our staff. They have extensive experience and capabilities that complement their strong desire to make the Agency the best it can (continued on page 5)

5 5 MAIA News... continued from page 4 be. We are lucky that they care about the Agency, each other and most importantly our customers. Our key theme is to exceed expectation and be a superior source of information,everyone understands this priority and is fully committed to making it the way they do business day in and day out, said William Lapointe and Colette McKeon, owners of Lapointe Insurance Agency. Currently there are only 27 Independent Agencies in Massachusetts and Rhode Island that have received the coveted Five Star Agency Designation. If you would like to learn more about the Five Star Award of Distinction, contact MAIA Vice President of Training Heather Kramer at or or by at hkramer@massagent.com. Final Flight of 2014 Agent Awareness Ads Set for November... Beginning on November 5th, MAIA s final flight of Agent Awareness ads for 2014 will launch on network-affiliated television stations in the Boston and Springfield markets. For a complete schedule of the ads click here. The flight will run until November 25th. During the 2014 Agent Awareness Campaign, 2443 ads will have been featured during four flights over a ten week period. This is a 14% increase over the 2067 ads featured in The continued support of our company partners allows MAIA to expand our advertising efforts promoting the value of doing business with an independent insurance agent. See the complete list of company partners below. MAIA is hard at work planning our 2015 Agent Awareness Campaign -- our 16th year. We will feature new ads and hope to expand the number of ads in the campaign.