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 AB 1200 (Hayashi), Page 2 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. AB 1200 (Hayashi), Page 3 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 AB 1200 (Hayashi), Page 4 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 AB 1200 (Hayashi), Page 5 the 2009-10 Regular Session that amended this Section shall only apply to actions filed on or after January 1, 2010. AB 1200 (Hayashi), Page 6 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 AB 1200 (Hayashi), Page 7 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 AB 1200 (Hayashi), Page 8 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 AB 1200 (Hayashi), Page 9 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 AB 1200 (Hayashi), Page 10 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 AB 1200 (Hayashi), Page 11 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 AB 1200 (Hayashi), Page 12 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 AB 1200 (Hayashi), Page 13 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. AB 1200 (Hayashi), Page 14 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 AB 1200 (Hayashi), Page 15 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. AB 1200 (Hayashi), Page 16 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 AB 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, AB 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 AB 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 AB 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