Every new\u00a0lawyer who has ever worked in a firm knows the terror of potentially writing a memorandum, brief, or making some representation of the status of a statute or case that is relied upon by others that turns out to be \u2014 well \u2014 wrong.\u00a0 I\u2019m not talking of distinctions or hair-splitting about the case; I\u2019m talking about cases that have been overturned, vacated, or heavily discredited and statutes that have been repealed or superseded.\u00a0 That\u2019s a new lawyer\u2019s nightmare and, for the obsessive-compulsive in\u00a0the rest of us, that concern never quite goes away.<\/p>\n
Apparently, that concern didn\u2019t register with insurance representatives lobbying Connecticut\u2019s Insurance and Real Estate Legislative Committee\u00a0when they argued the Committee\u00a0should not approve\u00a0legislation<\/a>\u00a0drafted by the State\u2019s Attorney General, Richard Blumenthal, to make the\u00a0State\u2019s \u201csteering\u201d law stricter.\u00a0\u00a0Three different\u00a0insurance representatives told the Committee\u00a0that\u00a0a New York statute\u00a0N.Y. Ins. Law\u00a0\u00a7\u00a02610<\/a>\u00a0with similar language had been stricken as\u00a0an unconstitutional violation of insurers\u2019 right to commercial speech.\u00a0 What each of them neglected to tell the Committee, however, is that the\u00a0District Court decision making that statement had been vacated, and, after several appellate court decisions, on remand the District Court had issued a different opinion refusing to enjoin the NY Department of Insurance from enforcing the statute, refusing to rule on the insurers\u2019 First Amendment claims, and dismissing the lawsuit.<\/p>\n Even more troubling, the District Court\u2019s new opinion\u00a0reiterated the Second Circuit\u2019s finding that insurers could not challenge the NY statute on facial grounds, indicating that the court\u2019s original finding of a\u00a0constitutional violation regarding the statute itself was in error.<\/p>\n The Second Circuit explicitly rejected a facial challenge to \u00a7 2610(b). That court noted, \u201cto the extent that the parties [] present a facial challenge to \u00a7 2610(b), it is an \u2018overbreadth\u2019 challenge, and such a challenge cannot lie with respect to a regulation of commercial speech.\u201d Allstate II, 261 F.3d at 153<\/p>\n Allstate Ins. Co. v. Serio, 2003 U.S. Dist. LEXIS 13541 (D.N.Y. 2003)<\/a><\/p>\n In other words, the insurance representatives\u2019 statements were gross misrepresentations of the status of (existing) New York law.<\/p>\n I guess I\u2019m shocked because I wouldn\u2019t dream of stating something to a government entity\u00a0\u2013 certainly not something as damning as a\u00a0violation of The Constitution \u2014 without checking, rechecking, and re-rechecking to make absolutely certain it was true.\u00a0 But, when no one\u00a0holds you accountable,\u00a0I guess you feel that sloppy\u00a0information presentation is perfectly acceptable.\u00a0 If this is any demonstration of how\u00a0well state regulated insurance operates, insurers can kiss the McCarran-Ferguson Act goodbye.<\/p>\n Anyway, after all of these legal\u00a0decisions, the NY Department of Insurance issued\u00a0Circular 14 on December 4, 2003<\/a>\u00a0plainly stating that the steering law was in effect and that it would be enforced per the interpretation of the NY Court of Appeals\u2019 decision.\u00a0 Seven months later in June of 2004, the NY DOI\u2019s General Counsel issued\u00a0an opinion<\/a>\u00a0that insurers would be in violation of the steering statute if they informed claimants their vehicles could only be repaired at a facility certified by the claimants\u2019 auto manufacturers.<\/p>\n Yeah, that\u2019s really a statute that was struck down for its unconsitutional language.<\/p>\n The Allstate v. Serio cases, NY DOI Circulars, and NY DOI Opinion can be accessed via links below:<\/p>\n \u008a<\/a><\/p>\n Allstate v. Serio 2000 US Dist Lexis 6055<\/a><\/p>\n Allstate v Serio 2001 US App LEXIS 16510 (2)<\/a><\/p>\n Allstate v Serio 2002 98 NY 2d 198 (3)<\/a><\/p>\n Allstate v Serio 2002 US App LEXIS 11155 (4)<\/a><\/p>\n Allstate v Serio 2003 US Dist LEXIS 13541 (5)<\/a><\/p>\n DOI Circular 4 1994<\/a><\/p>\n DOI Circular 16 2000<\/a><\/p>\n DOI Circular 14 2003<\/a><\/p>\n