BILL ANALYSIS                                                                                                                                                                                                    






                        SENATE COMMITTEE ON BANKING, FINANCE,
                                    AND INSURANCE
                           Senator Ronald Calderon, Chair


          AB 1200 (Hayashi)        Hearing Date:  July 9, 2009  

          As Amended: June 25, 2009
          Fiscal:             No
          Urgency:       No
          
           SUMMARY   Would significantly revise and recast California's auto  
          repair anti-steering law duties, obligations and allowed conduct  
          for insurance companies, relative to consumers and other parties  
          in the claims settlement process, including 
               1) Eliminating an insurer's duty to provide a specified  
               written notice of a consumers right to select an auto body  
               shop, and
                2) Eliminating a prohibition in current law on an insurer  
               suggesting or recommending that the claimant select a  
               different body shop after a consumer has indicated their  
               body shop choice. 
          The bill makes findings and declarations which may affect  
          currently pending regulatory matters and future litigation,  
          which the bill anticipates.  
           
          DIGEST
            
          Existing statutory law: California Insurance Code (CIC) Section  
          758.5

              1.   Prohibits an insurer from requiring that an automobile  
               be repaired at a specific automotive repair dealer. 
              
             2.   Prohibits an insurer from suggesting or recommending  
               that an automobile be repaired at a specific automotive  
               repair dealer unless:

                  a.        The claimant requested the referral, or
                  b.        The claimant is informed, in writing, of their  
                    right to select the automotive repair dealer.

             3.   Requires that if a claimant accepts an insurer  
               recommendation, the insurer shall cause the damaged vehicle  
               to be restored to its condition prior to the loss at no  
               additional cost to the claimant other than as stated in the  




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               policy or as allowed by law.  If an automotive repair  
               dealer recommendation is done orally and accepted, the  
               insurer shall provide a notice of specified content to the  
               claimant at the time the recommendation is made.  The  
               required written notice required shall be sent or provided  
               within five calendar days from the oral recommendation.
              
             4.   The written notice, in no less than 10-point type,  
               informs the claimant that the insurer is prohibited from  
               requiring that repairs be done at a specific automotive  
               repair dealer and that the claimant is able to select the  
               auto body repair shop which will repair the damage covered  
               by their insurance policy.  The disclosure states that the  
               insurer has recommended an automotive repair dealer to  
               repair the claimant's vehicle and if the claimant agrees to  
               its use, the insurer will cause the damaged vehicle to be  
               restored to its condition prior to the loss at no added  
               cost to the claimant except as stated in the policy or  
               allowed by law.

             5.   Prohibits an insurer, after the claimant has chosen an  
               automotive repair dealer, from suggesting or recommending  
               that the claimant select a different automotive repair,  
               unless a referral has been expressly requested by the  
               claimant.  

             6.   Requires any insurer that in its insurance contract  
               suggests or recommends that an automobile be repaired at a  
               particular automotive repair dealer must:
             
                  a.        Requires the insurer to disclose the contract  
                    provision prominently in writing at the time the  
                    insurance is applied for and at the time a claim is  
                    acknowledged by the insurer.
                  
                  b.        Prohibits such insurer, if a claimant elects  
                    to have the vehicle repaired at the shop of his or her  
                    choice, from limiting or discounting the reasonable  
                    repair costs based on charges that would have been  
                    incurred had the vehicle been repaired by the  
                    insurer's chosen shop.

             7.   Authorizes the Commissioner to enforce this section  
               using his or her powers, including those powers granted to  
               the Commissioner in the Unfair Practices Act.





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           Existing Regulatory Law: DOI Regulations Pending to Implement  
          CIC Section 758.5

                The Insurance Commissioner has a pending regulation which  
               is intended to clarify the type of communications that are  
               appropriate, once a claimant has exercised their right  
               under current law to choose a body shop, so that the  
               insurer does not violate the prohibition in current law on  
               suggesting or recommending a different repair facility.  

               The regulation is intended to implement Insurance Code  
               Section 758.5(c) which now states, except where the  
               claimant has requested a referral, 

                    "after the claimant has chosen an automotive repair  
                    dealer, the insurer shall not suggest or recommend  
                    that the claimant select a different automotive repair  
                    dealer".  

               Information on the proposed regulation can be found in  
               Comments 3 to 8 below.  

          This bill

             1.   Proposes uncodified legislative "Findings and  
               Declarations" to the effect that:

               a.     Claimants benefit from being fully informed  
                 regarding the benefits and services offered by insurance  
                 companies as part of the claims process.  

               b.     These benefits and services include, but are not  
                 limited to:

                     i.          Policy terms regarding repair warranties,  

                     ii.         The type of replacement parts used in the  
                      repair, 
                     iii.        The anticipated time to repair the  
                      vehicle, 
                     iv.         The anticipated costs associated with the  
                      repairs, and 
                     v.          The quality of the workmanship which are  
                      enumerated

               c.     Such information about the benefits and services  




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                 offered by insurance companies allows claimants to make  
                 meaningful choices regarding the repair process and the  
                 automotive repair dealer to be used.

               d.     Insurers should present that information in a  
                 truthful and nondeceptive manner.

            2.   Adds to the Insurance Code's anti-steering in auto body  
               repair law a new subdivision to the effect that"An insurer  
               may provide the claimant with specific truthful and  
               nondeceptive information regarding the services and  
               benefits available to the claimant during the claims  
               process pursuant to the policy. This may include, but is  
               not limited to, information about the repair warranties  
               offered, the type of replacement parts to be used, the  
               anticipated time to repair the damaged vehicle, and the  
               quality of the workmanship available to the claimant.
            
            3.   Eliminates the prohibition of current law that no insurer  
               shall suggest or recommend that an automobile be repaired  
               at a specific location or dealer  unless  the claimant has  
               either requested a referral, or  they have been given a  
               statement in writing of their right to select the  
               automotive repair dealer  to instead provide that the  
               insurer is not required to inform a claimant of this right  
               in writing if it is provided orally. 

            4.   In addition, the requirement of an insurer to not provide  
               a suggestion or recommendation of an automotive repair  
               dealer except upon request or without informing a claimant  
               of their right to select a the automotive repair dealer is  
               made subject to the new authorization for insurers,  
               described in paragraph 2 above, to provide "information  
               regarding the services and benefits available to the  
               claimant during the claims process pursuant to the policy"

            5.   Recasts the prohibition on an insurer, after the claimant  
               has chosen an automotive repair dealer, from suggesting or  
               recommending that the claimant select a different  
               automotive repair unless a referral has been expressly  
               requested by the claimant so that such suggestions or  
               recommendations would be permitted as part of providing the  
               information regarding the services and benefits available  
               to the claimant described in paragraph 2 above.
            
            6.   States that the changes made by the act enacted during  




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               the 2009-10 Regular Session that amended this Section shall  
               only apply to actions filed on or after January 1, 2010.
















































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           COMMENTS
           
              1.   Purpose of the bill  According to the author, AB 1200 is  
               intended to ensure that drivers can make an informed choice  
               when selecting an auto repair facility by clarifying that  
               insurers can explain the benefits of their own repair  
               programs to consumers.

              2.   Information provided by the author states:
           
                  a.        Current law prohibits auto insurers from  
                    requiring drivers to use a particular repair facility  
                    for repairs to a damaged vehicle.

                  b.        This law is intended to prevent insurance  
                    companies from "steering" or otherwise preventing a  
                    driver from having auto repairs done at a repair  
                    facility of his or her choice.

                  c.        Auto insurance companies often contract with a  
                    network of trusted auto repair facilities or direct  
                    repair program (DRP) to provide repairs for the  
                    insurance company's claimants.  Some benefits of a DRP  
                    may include warranties on repair work, guaranteed  
                    prices, streamlined repair process, and on-site car  
                    rental. 

                  d.        Some body shop owners want to keep consumers  
                    in the dark about their auto repair options by  
                    prohibiting insurers from providing information about  
                    alternatives, including the benefits of an insurer's  
                    DRP.

                  e.        AB 1200 seeks to ensure that every consumer  
                    can make an informed choice by balancing the need for  
                    claimants to 1) understand the benefits of an auto  
                    insurance policy, including the benefits that DRPs  
                    provide, and 2) be free to choose an auto repair  
                    facility without auto insurer coercion.

                  f.        When this issue has arisen in other states,  
                    courts have strongly outlined the benefits of informed  
                    consumer choice and the First Amendment protections  
                    afforded commercial free speech.  In the leading  
                    decision,  Allstate v. Abbott, 495 Fed.3rd 151 (2007)  ,  
                    the Fifth Circuit Court of Appeals overturned a Texas  




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                    law that prohibited an insurer from recommending  
                    policyholders have their vehicles repaired at an  
                    insurer-owned body shop.  Relying on a long line of  
                    commercial free speech cases, the court said:

                        Consumers benefit from more, rather than less,  
                        information. Attempting to control the outcome of  
                        the consumer decisions following such  
                        communications by restricting lawful commercial  
                        speech is not an appropriate way to advance a  
                        state interest in protecting consumers.
             
             3.   Background on DOI's current regulatory process  While AB  
               1200 states that the changes it makes "shall only apply to  
               actions filed on or after January 1, 2010, the clearest  
               immediate context where the changes proposed by AB 1200  
               will have significant impact is with respect to a set of  
               pending regulations which the California Department of  
               Insurance states are necessary to implement, interpret, and  
               make specific the Section of law which AB 1200 proposes to  
               amend.

              4.   DOI's Proposed Regulation  As currently proposed, the  
               regulation, entitled "Insurer Recommendations of Automotive  
               Repair Dealers" reads as follows:

                                        Proposed Text 
                      Regulation Implementing and Interpreting Insurance  
                                          Code 758.5
                     California Code of Regulations, Title 10, Chapter 5,  
                          Subchapter 9, Article 7.5, Section 2698.93 

                    ARTICLE 7.5. - Insurer Recommendations of Automotive  
                    Repair Dealers
                    Section 2698.93 (a) This article applies to any claim  
                    in which an insurer may be required to provide  
                    benefits for repair of a motor vehicle pursuant to a  
                    policy of insurance as defined by section 660 of the  
                    Insurance Code. For purposes of this article  
                    "claimant" means a first-party claimant or insured, or  
                    a third-party claimant who asserts a right of recovery  
                    for automotive repairs under an insurance policy 
                    (b) Except when a referral is expressly requested by  
                    the claimant, after a claimant has chosen an  
                    automotive repair dealer, the insurer shall not  
                    suggest or recommend that the claimant select a  




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                    different automotive repair dealer. 
                    (c) For purposes of subdivision (b), a claimant has  
                    chosen an automotive repair dealer when the claimant  
                    has specified to the insurer a specific automotive  
                    repair dealer registered with the Bureau of Automotive  
                    Repair pursuant to sections 9884 and 9889.52 of the  
                    Business and Professions Code which he or she wishes  
                    to repair the vehicle. 
                    (d) For purposes of subdivision (b), an insurer  
                    suggests or recommends that the claimant select a  
                    different automotive repair dealer when the insurer,  
                    whether orally or in writing, communicates information  
                    to the claimant which is relevant only to the choice  
                    of the automotive repair dealer. Suggesting or  
                    recommending includes, but is not limited to, the  
                    following:

                         (1) Communication regarding the insurer's direct  
                         repair program or its list of approved automotive  
                         repair dealers. 
                         (2) Communication regarding the quality of the  
                         chosen automotive repair dealer. 
                         (3) Communication regarding the quality of an  
                         automotive repair dealer other than the chosen  
                         dealer. 
                         (4) Communication which identifies an automotive  
                         repair dealer other than the automotive repair  
                         dealer chosen by the claimant, unless expressly  
                         requested by the claimant.

                      (e) Nothing in this article restricts the ability of  
                      an insurer to explain contractual provisions of the  
                      insurance policy to the claimant, including the  
                      insurer's obligation to pay only costs that are  
                      reasonably necessary to restore the damaged vehicle  
                      to its pre-accident condition. 
                      NOTE: Authority cited: Section 758.5, Insurance  
                      Code. Reference: Section 758.5, Insurance Code.  
             
              5.   DOI states Regulation's Goal is Reducing Steering  
               Disputes  According to the DOI website, the need for the  
               regulation has arisen because insurance companies and  
               automotive repair dealers clash over what information  
               insurers can tell claimants, and when the information can  
               be told. The DOI states the purpose of the regulation is to  
               clarify the type of information which can be disclosed by  




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               an insurance company to a claimant, and when the  
               information may be disclosed. By clarifying when an  
               insurance company may provide a claimant a referral, and by  
               clarifying what communication constitutes a referral, the  
               DOI intends that this regulation will reduce the conflict  
               between insurance companies and automotive repair dealers  
               in interpreting Section 758.5. 

              6.   DOI Regulation Seeks to further Current Law & its Intent   
               The DOI states the improved clarity and understanding that  
               will ensue from regulations adopted in furtherance of its  
               express power to enforce this law will enable insurance  
               companies to benefit consumers by giving them a better  
               understanding of their rights and by implementing Section  
               758.5 "according to the intent of its authors."   

              7.   Relationship of the Proposed DOI Regulation and AB 1200   
               As set out in paragraph 4 above, the proposed regulation  
               appears to offer useful guidance and bright line rules for  
               claimants, insurers and automotive repair shops to narrow  
               possible disputes.  

               Since the Insurance Commissioner's proposed regulation is  
               primarily focused on the period of time  after a claimant  
               has exercised their right to choose an automotive repair  
               dealer  , the provision of AB 1200  that eliminates an  
               insurer's duty to inform a claimant in writing of their  
               right to select a body shop in advance of their selection  
               if the insurer suggests or recommends a shop  has the  
               potential to open a new front for insurer/body  
               shop/claimant disputes.  

               (Note:  Reference above to "the provision of AB 1200 that  
               eliminates an insurer's duty  to inform a claimant in  
               writing of their right to select a body shop"  refers to the  
               effect of the change on page 2, line 29, where the  
               insertion of "orally"in effect eliminates the protection  
               current law gives consumers that if they have not sought a  
               referral, they must receive a written statement of their  
               right to have their automobile repaired at an automotive  
               repair dealer of their choice.)

              8.   DOI Process and revised "Legislative Intent"  As  
               described in the "This Bill" portion of the analysis, SB  
               1200 both recasts the current provisions of Section 758.5  
               and includes numerous uncodified Legislative Findings and  




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               Declarations.  These provisions will, in effect, rewrite  
               the "intent" of the Section which the DOI Regulations is  
               expressly seeking to implement.

              9.   Legislative Findings and Declarations  are not typically  
               codified, yet they can carry great weight when matters of  
               legislative construction and intent are before the courts.   
               Accordingly, since AB 1200 as most recently amended  
               expresses a clear intent that the "changes to Section  
               758.5" enacted this year are to apply to actions filed on  
               or after January 1, 2010, and since these same amendments  
               provide significant legislative findings that align closely  
               with the statutory revisions, it appears likely some legal  
               action regarding the meaning and proper construction of  
               Section 758.5, including its underlying intent is expected  
               or anticipated. 

              10.   Written Notice of Consumers Right to Select Repair  
               Facility is Key Protection in Current Law  Under existing  
               Insurance Code Section 758.5, insurers are prohibited from  
               suggesting or recommending that an automobile be repaired  
               at a specific automotive repair dealer unless either the  
               claimant requested the referral, or is informed, in  
               writing, of their right to select the automotive repair  
               dealer.  Under current law, the purpose of the writing is a  
               protective one.  It ensures that a consumer knows that even  
               if their insurer offers a suggestion or a recommendation as  
               to a body shop for the repair of a claimant's vehicle, they  
               retain a clear and unmistakable right to choose a repair  
               facility.  As described in point 3 of the description of  
               "This bill" above, AB 1200 will eliminate the  requirement  
               for this protective written notice  for claimants who have  
               not solicited a referral nor accepted an insurer's  
               recommendation because oral notification can be  
               substituted.

              11.  Support  .  According to the  Personal Insurance Federation  
               of California (PIFC)  which supports this bill and is its  
               sponsor, existing law prohibits auto insurers from forcing  
               a driver to a particular auto repair facility, but fails to  
               ensure that drivers get a complete picture of their auto  
               repair options.  AB 1200 guarantees that drivers can make  
               an informed choice when selecting an auto repair facility.

             12.  The  PIFC  states Insurance Code Section 758.5 prohibits  
               auto insurers from requiring a claimant to use a specific  




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               auto repair facility.  According to the PIFC, Senator  
               Speier declared that her measure would "eliminate the  
               insurance industry practice of 'steering' auto body repair  
               work, which occurs when an insurer prevents a consumer from  
               having auto body repairs done at a repair shop preferred by  
               the consumer."  Auto insurers do not object to this law.  
               However, PIFC believes some body shop owners want to use  
               the current law to keep customers in the dark about their  
               auto repair options so as to deprive them of an informed  
               choice about alternatives, including an auto insurer's  
               "direct repair program (DRP)."  A DRP is a network of  
               vetted body shops that operate under contracts covering  
               warranties, guaranteed prices, experience and service.

             13.  The  PIFC  states that when this issue has arisen in other  
               states, courts have strongly outlined the benefits of  
               informed consumer choice.  In the leading decision,  
                                                                               Allstate v. Abbott, 495 Fed.3rd 151  (2007), the Fifth  
               Circuit Court of Appeals overturned a Texas law that  
               prohibited an insurer from recommending policyholders have  
               their vehicles repaired at an insurer-owned body shop.   
               Relying on a line of commercial free speech cases, PIFC  
               reports the court said:

                    Consumers benefit from more, rather than  
                    less, information.  Attempting to control  
                    the outcome of the consumer decisions  
                    following such communications by restricting  
                    lawful commercial speech is not an  
                    appropriate way to advance a state interest  
                    in protecting consumers.

              14.  PIFC  believes AB 1200 will ensure that every  
               consumer can make an informed choice of auto  
               repair facilities by providing an appropriate  
               balance of the need for claimants to 1)  
               understand the benefits of an auto insurance  
               policy, including the benefits that DRPs may  
               provide, and 2) the consumers freedom to choose  
               an auto repair shop without auto insurer  
               coercion.

             15.   According to the Allstate Insurance Company,  
               which supports the bill, "(t)his bill is, quite  
               simply, about free speech in the commercial  
               marketplace.  It permits an insurer to provide a  




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               claimant with truthful and non-deceptive  
               information so that the claimant may make an  
               informed decision while, at the same time,  
               respecting each claimant's choice as to the  
               selection of his/her auto body repair shop. 

               Steering remains illegal under this measure.   
               What is permitted under this measure is precisely  
               what some auto body repair shops do  not  want for  
               their own competitive reasons: a consumer being  
               provided with a complete picture of his/her auto  
               repair options, thus forcing the consumer to make  
               a choice based on incomplete information."

             16.   The State Farm Insurance Companies, which  
               support the bill, state as follows:

               "AB 1200 clarifies that insurance companies may  
               explain the services and benefits available to  
               claimants during the claims process, and this  
               explanation is not unlawful "steering" as long as  
               it is truthful and non-deceptive. 

               This bill will enable claimants to make an  
               informed decision about which body shop to choose  
               to repair their damaged vehicles.  The opponents  
               to this bill want to gag insurance companies,  
               prevent them from describing the benefits that  
               their network body shops offer, apparently, in  
               hopes that more uninformed claimants will choose  
               body shops outside the insurance companies'  
               network of body shops.  Rather than compete, the  
               opponents seek to stifle competition.

               The concept of the First Amendment as applied to  
               commercial speech is that it should be encouraged  
               as long as it is truthful and non-deceptive.  The  
               message from the First Amendment to the opponents  
               is increase your speech, tout your benefits,  
               compete in the marketplace, don't seek to  
               restrict or prohibit speech from your  
               competitors.  Let informed consumers make their  
               decisions with an abundance of information rather  
               than limited information. 

               Two opponents, referring to a pending case, urge  




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               an amendment that the information provided by an  
               insurance company is not to be in conflict with  
               any provision of law.  They state that they seek  
               such an amendment to prevent the courts from  
               seeing the changes as allowing activity that is  
               currently illegal.

               First, the pending case that they reference is  
               unaffected by AB 1200.  That case, Maystruck v.  
               Infinity Insurance Co., is based on subdivision  
               (d)(2) of section 758.5 of the Insurance Code.   
               That provision is unchanged by AB 1200. 

               Second, AB 1200 provides that it will apply only  
               to cases filed after January 1, 2010.  Hence, it  
               can have no effect on the Maystruck case that was  
               argued in the Court of Appeals on June 19 of this  
               year. 

               Third, AB 1200 requires the information provided  
               by an insurance company to be truthful and  
               non-deceptive.  The information could not meet  
               that standard if it was in conflict with any  
               provision of law. 

               AB 1200 will result in important information  
               being provided to claimants.  Those who oppose it  
               seek to stifle that information."

              17.  The Association of California Insurance  
               Companies (ACIC)  supports AB 1200 to ensure that  
               consumers have all the information they need to  
               make an informed choice.

              18.  Opposition   The California Autobody Association  
               (CAA)  states it is very concerned that AB 1200,  
               as proposed, would instead allow insurers to  
               legally "steer" the insured or claimant to an  
               insurer preferred repair shop even after an  
               informed consumer has clearly made a choice as to  
               where the vehicle should be repaired.  The CAA  
               believes that consumers should have meaningful  
               choice; that insurers should not disparage the  
               consumer's choice of repair shop and that  
               consumers be fully informed of all benefits  
               provided by their auto body repair shop.




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              19.  The California New Car Dealers Association  
               (CNCDA)  is opposed to AB 1200 which it says "will  
               neuter an important consumer protection statute"  
               and open the door for insurers to "steer"  
               consumers to repair shops that have contractually  
               agreed to save insurers money by following  
               insurer limitations on the manner in which  
               vehicles are repaired.  The CNCDA also states  
               that AB 1200, while apparently innocuous on its  
               face, "is in reality a Trojan horse that would  
               allow insurers to engage in communications that  
               the Legislature sought to prohibit with the  
               enactment of Insurance Code Section 758.5.   
               Although insurers claim to have the consumers'  
               best interests in mind, it is the bill's adding  
               the "ability of an insurer to explain benefits"  
               despite a consumer's having already announced a  
               preference for a particular body shop that would  
               give insurers the license sell their own program  
               and to disparage or "damn with faint praise" the  
               choice of body shop made by the consumer."

              20.  Consumer Watchdog  , which opposes the bill,  
               states "the proposed amendments gut the act.  It  
               allows insurers to provide whatever steering  
               information they choose (see new sec. (b)(2)  
               ["This [information provided by the insurer] may  
               include"]) and only requires insurers to provide  
               oral notice of the right to select their own  
               repair shop, which cannot be policed.  Since it  
               is oral OR written notice (see sec. (b)(1)(B)),  
               the written notice in new section (b)(3) will  
               never happen.   The "truthful and nondeceptive"  
               language is bogus?" CW has stated "the bill as  
               currently drafted might be cited by insurers as  
               evidence of the ability to flout other aspects of  
               California's anti-steering laws. California law  
               prohibits insurers from requiring that a claimant  
               have their car repaired at a specific auto repair  
               facility or from steering claimants to a  
               particular shop. We are concerned that the  
               language of your bill, declaring that insurers  
               may explain the terms of the contract to their  
               policyholders, would be used by some insurers in  
               court to block policyholder claims that companies  




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               improperly attempted to steer customers to  
               certain bodyshops."

              21.  Collision Repair Association of California  
               (CRA),  states it strongly opposes AB 1200,  
               characterizing the most recent amendments as  
               deceptive and harmful to the benefits of consumer  
               choice. THE CRA suggests that AB 1200 be revised  
               to add just one statement to Insurance Code  
               Section 758.5., "Nothing in this section shall  
               preclude the insurer from discussing terms of the  
               policy with the claimant." THE CRA asserts this  
               bill is crafted "so that insurers do not have to  
               reveal to claimants that the shop recommended by  
               the insurer has a commercial business agreement  
               with the insurer. These agreements affect the use  
               of factory parts and repair processes. If  
               claimants knew these provisions, many would not  
               take the insurer's recommendation. Instead, this  
               bill allows insurers to discuss the benefits to  
               the insurer and not those that might compromise  
               the value of the vehicle after it is repaired."

              22.  The Consumer Attorneys of California (CAOC)  ,  
               who oppose the bill, have stated:
           
               Current law prohibits insurers from requiring that an  
               automobile be repaired at a specific automobile repair  
               dealer and protects the consumers' legal right to choose an  
               auto body repair facility without being steered to the  
               insurers' chosen shop; AB 1200 removes the procedural  
               safeguards that prevent insurers from steering consumers to  
               the insurers' chosen shop.  CAOC strongly supports the  
               statute in its current form and believes that the  
               Legislature should be very reluctant to change a  
               pro-consumer anti-steering statute.  

               AB 1200 amends Section 758.5(B) by allowing insurers to  
                orally  notify consumers of their right to choose.  The  
               statute in its current form requires a written notification  
               of consumers' right to choose; the expansion to include an  
               oral notification will be difficult, if not impossible, to  
               regulate.  In addition, the proposed amendment further  
               expands insurers' ability to interfere with a consumer's  
               right to choose and, as written, is ripe for abuse. 





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                Additional CAOC comments were received following the most  
               recent amendments as follows:
           
               AB 1200 allows steering after a consumer has already  
               indicated choice of repair shop. 

               AB 1200 allows an insurer to discuss "benefits and  
               services" and  any other information  (see page 2, line 34  
               "including, but not limited to") even  after  the consumer  
               has clearly indicated his or her choice on an auto repair  
               shop, a clear departure and violation of the intent of  
               California's anti-steering statute.

               Page 3, line 33-37, amends the anti-steering statute to  
               create a huge, anti-consumer exception.

               Auto insurance policies do not have "in network" and "out  
               of network" pricing.  Instead most policies are for the  
               "reasonable repair cost" associated with repairing a  
               vehicle to pre-loss condition.  The existing anti-steering  
               laws afford a policyholder who has been hit the ability to  
               choose this or her own auto repair facility.  Insurers want  
               to steer consumers to facilities they own or control  
               through DRP contracts.  The legislature has already vetted  
               steering as a negative business practice that is injurious  
               to California consumers and anti-competitive to the auto  
               repair industry.

               AB 1200's legislative intent language is an attempt to  
               affect pending and future litigation.

               Further, we want to stress we believe the only purpose of  
               the legislative intent language is to gut pending  
               litigation and to steer future legal interpretations on  
               this statute.  Steering, by the insurers in violation of  
               this important consumer statute, or by the insurers in an  
               attempt to steer future interpretations via intent  
               language, is misguided policy for this state. 

               AB 1200 eviscerates the current consumer protection notice  
               by allowing an insurer to give an oral, instead of written  
               notice.
                
               AB 1200 also amends Section 758.5(B) by allowing insurers  
               to  orally  notify consumers of their right to choose.  The  
               statute in its current form requires a written notification  




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          1200 (Hayashi), Page 17



               of consumers' right to choose; the expansion to include an  
               oral notification will be difficult, if not impossible, to  
               regulate.  The proposed modification to the existing  
               consumer protection act nullifies the written notification  
               to consumers, by adding "orally" on page 2, line 29, of  
               their legal right to choose.  In addition, the proposed  
               amendment further expands insurers' ability to interfere  
               with a consumer's right to choose and, as written, is ripe  
               for abuse.  This added language allows insurers to steer  
               without procedural safeguards that can be monitored and  
               enforced.

               Pending litigation exists surrounding this statute.   
               Maystruck v. Infinity Insurance Company, for example,  
               highlights the need to supply the courts with clear  
               direction in relation to the enforcement of Section 758.5.  
               Defendant in this case is attempting to argue that  
               plaintiffs are barred from bringing an action for damages  
               even though they can assert that they were penalized when  
               they chose to have their cars repaired at "non-preferred"  
               body shops. Though the trial court accepted defendant's  
               argument and dismissed the case, the Attorney General has,  
               on appeal, submitted an Amicus Brief asserting that the  
               trial court should be reversed.

              23.  Monte Etherton of Fender Mender, Inc  . is  
               opposed to AB 1200, stating if AB 1200 is  
               approved as amended, consumers will no longer be  
               able to simply choose my shop without their  
               respective insurer trying to convince them to go  
               to a "recommended" shop Instead."

              24.  Consumers for Auto Reliability and Safety  
               (CARS)  is opposed to AB 1200, stating it "would  
               weaken existing protections for California  
               consumers against "steering" by insurance  
               companies that have an inherent conflict of  
               interest and too often are simply seeking to  
               mislead their clients into obtaining the least  
               expensive repairs." 

               CARS also states:

                    "Steering is a serious issue for vehicle  
                    owners, since slipshod repairs can leave  
                    their vehicles without warranty protection,  




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          1200 (Hayashi), Page 18



                    in need of additional expensive repairs, and  
                    unsafe to drive."
                    "AB 1200 would ? allow insurers to make  
                    verbal representations regarding where  
                    consumers should have their vehicles  
                    repaired, opening up that code section to  
                    abuse and making it more difficult to  
                    enforce." 
                    "The issues surrounding steering practices  
                    in California are currently under  
                    litigation, in Maystruck v. Infinity  
                    Insurance Company, where we understand that  
                    the Attorney General is filing an Amicus  
                    Brief asserting that the trial court should  
                    be reversed. We would urge that, at best,  
                    the bill is premature and this issue should  
                    not be addressed until that litigation has  
                    been resolved."
           
             25.  Questions  

                  a.        If passed, the revisions to CIC Section 758.5  
                    and the new uncodified Legislative Findings and  
                    Declarations will likely have a material impact on the  
                    Insurance Commissioner's current proceeding to adopt  
                    regulations implementing the anti-steering statute.   
                    Committee staff has not been provided with any  
                    information to indicate what in the proposed  
                    regulation may be objectionable.  Absent any showing  
                    of a specific problem with the regulatory adoption  
                    process now underway, in the same way that passing  
                    laws to influence the outcome of pending litigation is  
                    disfavored, should this bill be passed in view of its  
                    likely effect on a current regulatory process?

                   b.        Possible Policy Amendment  In view of the  
                    importance which California's current anti-steering  
                    law assigns to a claimant receiving a  written notice   
                    of their right to select the automotive repair dealer  
                    of their choice, should the bill be amended at page 2,  
                    line 29 to strike "orally or" so as to retain the  
                    requirement for written notice?

                   c.        Possible Policy "Conformity" Amendment  If it  
                    is the policy of the Committee that the prior  
                    amendment to require retaining a written notice should  




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          1200 (Hayashi), Page 19



                    be made,  then page 2, line 25 of the bill should be  
                    amended to strike "Subject to paragraph (2), no" and  
                    insert "No".  This amendment is needed to retain the  
                    bright line rule that if an insurer makes suggestions  
                    or recommendations as to a body shop to a claimant who  
                    has not expressly requested a referral, such a  
                    suggestion or recommendation, made in any context - in  
                    person, on the phone, or in any other context  
                    including the various kinds of information sharing  
                    provided for in section 2 of the bill at page 2, lines  
                    31 to 37 - still requires a written notice of the  
                    claimant's right to select an automotive repair  
                    dealer. 
           
                  d.        Possible Policy "Conformity" Amendment  If it  
                    is the policy of the Committee that AB 1200 be revised  
                    to retain the written notice to the consumer described  
                    in paragraphs b and c above, then on page 3, line 34  
                    of the bill, consideration should be given to striking  
                    "or paragraph (2) of subdivision (b)".  If the prior  
                    amendments make sense to protect the right of  
                    consumers to choose a body shop, then striking this  
                    newly-added language at page 3 line 34 is needed to  
                    ensure that the consumers choice is honored, which is  
                    the policy of current law.  

             26.  Suggested Amendments  See Comment 22, paragraphs b, c and  
               d immediately above. 
           
             27.  Prior Legislation  SB 551 (Speier) of the 2003-2004  
               Session established the current law regarding body shop  
               referrals and steering which is the subject of this bill.
           
          POSITIONS
          Support
           
          Personal Insurance Federation of California
          Association of California Insurance Companies
          American Insurance Association
          National Association of Mutual Insurance Companies
          State Farm Insurance Companies
          Allstate
          Farmers
          Liberty Mutual Group
          21st Century
          Progressive




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          1200 (Hayashi), Page 20



           
          Oppose  
          California Autobody Association
          Collision Repair Association of California
          California New Car Dealers Association
          Fender Menders, Inc.
          Consumer Watchdog
          Consumer Attorneys of California
          Penske Automotive Collision Center
          Bertolli's Auto Body Shop, Inc
          Faith Quality Auto Body, Inc.
          Bakersfield Auto Body
          Precision Auto Body
          Consumers for Auto Reliability and Safety
          United Auto Body 


          Principal Consultant:   Kenneth Cooley (916) 651-4102