Unum's claim handling exposes them to a multi-million dollar bad faith disability lawsuit

Ronnie Hogan sued Provident Life & Accident Insurance Company (Provident) and Unum Group Corp. (Unum) asserting claims under Florida law that the insurance companies had failed to attempt in good faith to settle his claim. Hogan also accused the insurance companies of making misrepresentations that would have made a settlement less favorable for him. He accused them of exercising general business practices that involved mishandling claims, breaching their fiduciary duty, common law fraud, negligence and even conspiracy to commit statutory violations. Provident and Unum asked the judge to dismiss Hogan's case based on a failure to state his claim or at least to pass judgment based on the pleadings presented by the two sides.

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Insurance Industry Loses Lawsuit Challenging the Abolishment of Discretionary Clauses In ERISA Long-Term Disability Policies

In 1989, The US Supreme Court declared that if ERISA plans contain language giving plan fiduciaries discretion to interpret the terms of the plans and to make benefit determinations, courts will generally yield to that discretion. As a result of this discretion, insurance companies were able to deny claims and there was very little that courts could do to reverse the decision of an insurance company. Throughout the past several years, many states have passed laws to ban discretionary clauses and the insurance industry has been fighting to keep the discretionary clauses. 

On March 18, 2009, the Sixth Circuit Court of Appeals affirmed a Michigan Statute promulgated in June 2007, which prohibited any insurance company or other entity from “issuing, advertising, or delivering to any person in the state of Michigan, including an employee benefit plan subject to ERISA, an underwritten policy or certificate that includes a discretionary clause.” See American Council of Life Insurers v. Ross, 558 F.3d 600( 6th Cir. 2009).   Under the law in Michigan, disability insurance companies can no longer invest the plan administrator with unfettered discretionary authority to determine eligibility or to construe ambiguous terms of a plan. 

 

The elimination of the discretionary clause will entitle all disability claimants a De Novo review of their claim in Federal Court if their claim is denied by the disability insurance company. The elimination of discretionary clauses is a heavily litigated issue throughout the country and there are eight states (CA, CO, IL, ME, MI, MO, NJ, SD)   that have either ruled or have drafted laws that discretionary clauses are invalid. Utah has sought to significantly limit the impact of discretionary language.

 

Attorneys Dell & Schaefer are involved on a daily basis with challenging the validity of discretionary clauses in long-term disability policies.   We are continually lobbying Congress for a bill that will eliminate discretionary clauses in all employee benefit disability plans.

What Is The Financial Future Of Unum?

To hear company officials tell it Unum is emphatically on the mend, this after the disability insurer was wracked by scandal and losses earlier in the decade. In 2005, Unum reached a costly settlement with attorneys general in 49 states over allegations of unfairly terminating or denying coverage to disabled clients. That was after a 60 Minutes exposé pilloried the company.


Its other big problem was in the profit department, the result of horribly underpricing policies sold to doctors, lawyers and other professionals. Those policies are now in "run-off" mode, with beefed-up reserves for claims, meaning they can die a slow but less costly death. In fact, the Chattanooga, Tenn., company (ticker: UNM) has reported three profitable years, including 2007, when it said it made $679 million, or $1.91 a share, and 2008, when it said it earned $553 million, or $1.62. Unum's latest estimates call for profit of $2.44 to $2.55 a share for 2009, no small feat in these tumultuous times. With the stock around $10, well below book value of about $19 a share, investors may be tempted to jump aboard the Chattanooga Choo Choo, as Unum is known in the industry. Our advice: Book a plane ticket or drive. If past is prologue, there could be unfortunate surprises down the tracks. Indeed, even the recent profit gains might not be all they appear to be.


Back in 2005 & 2006 Barron’s ran several negative articles on Unum, as the stock was trading in the low 20s. Among other things, the stories examined Unum's then-rogue culture, in which top-performing employees were given "Hungry Vulture" awards inscribed with the maxim "Patience, my foot...I'm gonna kill something." Those honors have been discontinued.


We also described several major "finite" reinsurance deals that the company had struck over the years. These purported to reduce claims losses, the largest cost item on any insurer's income statement, by getting the reinsurers to assume much of that burden. Yet the finite deals were, in effect, disguised loans, with Unum passing along agreed-upon premiums, reserves and profits to reinsurers in future years. Unum and other insurers pulled back from this practice after a regulatory crackdown in 2005.


But one problem still hangs over the company: a history of alarming setbacks. Unum Group has periodically reported large losses as a result of having to take mammoth reserve charges after several years of sprightly, but apparently illusory, earnings growth. Spectacular blow-ups occurred in 1999, 2003 and 2004, with annual losses of up $386 billion. "Look, maybe Unum is operating in a more disciplined manner, as management has claimed over the past couple of years, but two years of good results isn't enough for me to completely trust them," says one analyst who is neutral on the stock. "I'll need another couple of years of good earnings without big write-offs before I'll completely buy in to the story."


One place in Unum’s financials where investors might want to look closely is the company's reserves for future claims. As insurance icon Warren Buffett points out, reserves in essence are self-graded exams allowing insurers, depending on their assumptions, to boost or punish earnings. Here, Unum may have proven decidedly optimistic. This becomes apparent when one looks at a special reserve account called Incurred But Not Reported, for money set aside to cover claims that past experience tells insurers they will face even though the claims haven't yet been filed. Over the past six years, this account has fallen from 6.3% of Unum's total reserve (before mark-to-market adjustments) to 4.9% last year.


By paring this account, Unum has sharply boosted profit. The maneuver added $292 million to 2007's pretax earnings of $1.1 billion, while a smaller IBNR release in 2008 pumped up pretax income by $138 million, to $1.3 billion. Company officials attribute the IBNR releases and the generally improved insurance results across their product lines to a variety of factors: policy-premium increases, improved claims-management efficiencies, a purge of lower-margin business, and a better selection and mix of insurance risks. The company further argues that the IBNR releases went into reserves for actual claims. But that is arguably a distinction without a difference: Without the IBNR money, earnings would be penalized directly by a beefing up of those reserves.

Investors also should remember that Unum is operating in a competitive environment in which premium boosts are difficult to come by. The company, likewise, operates at a distinct disadvantage to such disability insurers as StanCorp (SFG) and MetLife (MET) because of Unum's lower rating of claims-paying ability, as measured by industry arbiter A.M. Best.
The profit gains from cutting the IBNR have helped compensate for the disappearance of finite reinsurance. And there are signs that Unum may be carrying out other accounting maneuvers to burnish earnings.


Consider the company's allowance for doubtful accounts money set aside for when customers fail to pay premiums. In 2006 and 2007, Unum tapped this account for $16.5 million and $4.5 million, respectively, with those sums going straight to profit. Last year, Unum drew down only $2 million from the allowance -- but it withdrew and added to earnings $7.3 million from a real-estate reserve account. Unum argues this was all the result of a better book of business than in the past.


Frequent accounting changes at Unum make tracking the company's year-to-year financial performance difficult. For instance, according to a footnote in Unum's fourth-quarter 2008 Statistical Supplement, the company was able to report $530.8 million in statutory, or regulatory, income in 2007 due to a new valuation system employed for its individual disability reserves. The change resulted in a $194 million gain in after-tax statutory income. That measure of income is closely watched by analysts because it is more conservatively calculated than earnings under GAAP.
Unum has operated in a conservative manner in at least one area its investment portfolio. As JPMorgan analyst Jimmy S. Bhullar points out in a recent report, the quality of Unum's $32 billion portfolio is better than that of many other life companies. Unum, for example, has no subprime securities and little in the way of non-government-guaranteed mortgage-backed and commercial real-estate risk.


Yet the company could have further investment charge-offs. More than 40% of its bond portfolio is rated triple-B or below, compared with its peer average of 23%, according to Bhullar. Also, the portfolio has nearly $2 billion in gross, unrealized losses that have been carried on the balance sheet for a year or more.


Unum claims those losses are the temporary result of swollen risk spreads in the bond market, rather than a measure of actual default risk. But given the length of time these losses have existed, Unum's accountants might insist that the securities be adjudged permanently impaired, resulting in a huge charge to earnings.


It is often said a picture is worth a thousand words; in this case, it is worth at least 200 words. Look at the nearby chart, which reflects activity in Unum's key group-disability business. Notice how the "benefit ratio" the percentage of each premium dollar eaten up by claims and administrative expenses,  traces a beautiful glide pattern lower, dropping about half a percentage point every quarter and two full percentage points each year. Is this picture too good to be true? It is difficult to say. But look at the results posted by MetLife, operating in the very same business over the very same period. Its quarterly underwriting ratio jumps all over the place in what appears to be a random walk. Unum officials attribute MetLife's results to the fact that MetLife does business with bigger employers, which Unum contends have more volatile patterns of claims. But that seems like a stretch, at best.


In "short-tail" insurance businesses like auto, claim expenses are far harder to manipulate. The insurer knows exactly what the body shop is charging to repair the vehicle of one of its insureds.
But long-term disability payments are typically made over a period of years, and ultimate claims losses depend on a host of malleable assumptions, such as how long a claimant will be on disability before making a satisfactory recovery. In other words, disability insurers must bring more judgment to the table.


MetLife appears to accept the real world, with all its inherent volatility, while Unum prefers a picture of order and smoothed results. But in the end, pretty pictures are only that ...pretty pictures.
 

Unum Profit Falls in 4th Quarter Due to $167.6 Million in Investment Losses

Feb 3, 2009- Unum Group said on Tuesday that net income fell sharply in the fourth quarter, hurt by investment losses, but operating earnings beat Wall Street expectations by a penny.

Unum, the largest long-term disability benefit insurer in the United States and Britain, said net earnings fell 74 percent to $41.8 million, or 13 cents a share, from $160.5 million, or 44 cents a share, in the year-earlier quarter. Chattanooga, Tennessee-based Unum said it had $167.6 million in net realized investment losses, largely the result of writing down impaired investments. Earnings from continuing operations, which analysts use to measure performance, were $209.4 million, or 63 cents a share, compared with $213.1 million, or 59 cents a share a year earlier.

Analysts, on average, had expected earnings of 62 cents a share, according to Reuters Estimates.The company expects its earnings from continuing operations to be between $2.45 and $2.55 a share in 2009, shy of analysts' average expectation of $2.63 a share. The company said it is looking for a new chief financial officer to replace Robert Greving, who is retiring later this year, according to a separate statement.

Gregory Dell, a disability income attorney with Attorneys Dell & Schaefer stated, "despite Unum's recent financial performance they have been actively pursuing lump-sum buyouts from individuals that are currently collecting long-term disability benefits."