431:10-211

Content of policies in general

§431:10H-211 Disclosure; renewability. (a) Individual long-term care insurance policies shall contain a renewability provision. The provision shall be appropriately captioned, shall appear on the first page of the policy, and shall clearly state the duration, where limited, of renewability and the duration of the term of coverage for which the policy is issued and for which it may be renewed. This provision shall not apply to policies that do not contain a nonrenewability provision, and under which the right to nonrenew is reserved solely to the policyholder.

(b) A long-term care insurance policy or certificate, other than one where the insurer does not have the right to change the premium, shall include a statement that premium rates may change. [L 1999, c 93, pt of §2; am L 2007, c 233, §13] both; provided that when the premium is paid by the members, or by the credit union and its members jointly, at least seventy-five per cent of the then eligible members, excluding any as to whom evidence of insurability is not satisfactory to the insurer, shall elect to make the required contributions; and

(4) The amounts of insurance under the policy shall be based upon some plan precluding individual selection either by the members or by the credit union.

As used in this section, “credit union” means a credit union chartered under the provisions of the Federal Credit Union Act or article 10 of chapter 412. [L 1987, c 347, pt of §2; am L 1993, c 350, §17; am L 2004, c 122, §52] awarded may be treated as an offset against any benefits due or to become due to the person. [L 1987, c 347, pt of §2; am L 1992, c 124, §6; am L 1997, c 251, §34]

Cross References

Vexatious litigants, see chapter 634J.

Case Notes

Plaintiff had a plausible claim to attorney’s fees and costs under either subsection (a) or §431:10C-304(5). 685 F. Supp. 2d 1123 (2010).

Where court found that it was reasonable for plaintiff to litigate the issues raised in the action, court awarded plaintiff reasonable attorneys’ fees pursuant to subsection (a). 821 F. Supp. 632.

The plain language of subsection (a) (1993) allows an award of reasonable fees and costs to any person, insured or provider, who contests a denial of no-fault benefits for injuries. 90 H. 1, 975 P.2d 211.

Where allowing insurer to seek attorney’s fees under §607-14 would have contravened the attorney’s fee award scheme set forth in this section, trial court did not abuse its discretion in denying insurer’s motion for attorney’s fees and costs. 109 H. 537, 128 P.3d 850 (2006).

The assigned claim coverage to which plaintiff was deemed entitled did not constitute a “policy” for purposes of subsection (a); thus, because an insurer did not deny a claim under a “policy”, plaintiff was not entitled to attorney fees under this section. 113 H. 246, 151 P.3d 727 (2006).

Obtaining a remedy on appeal is not required in order to obtain attorney’s fees under subsection (a). 129 H. 270, 298 P.3d 1034 (2013).

Petitioner’s request for attorney’s fees and costs was not unreasonable under subsection (a) because petitioner’s underlying claim for personal injury protection benefits based on medical services rendered to the insured had been made before insured’s policy limit was reached; inter alia, when petitioner first appealed, it was uncertain whether petitioner would recover on the claim under the circumstances, and, more importantly, there was favorable authority and policy supporting petitioner’s position, and thus, petitioner’s pursuit of appeal was not irrational or without reason. 129 H. 270, 298 P.3d 1034 (2013).

Under §431:10C-304(5), an award of attorney’s fees and costs is mandatory if a claimant prevails in a settlement or suit for no-fault benefits; and under subsection (a), an award of attorney’s fees and costs may, in the exercise of a court’s or the commissioner’s discretion, be awarded to a nonprevailing claimant, as long as the claim is not determined to be unreasonable, fraudulent, excessive, or frivolous. 104 H. 375 (App.), 90 P.3d 267.

Where insurer waived any challenge to insured’s status as a real party in interest, insurance commissioner did not abuse discretion in awarding attorney’s fees and costs to insured under subsection (a). 108 H. 393 (App.), 120 P.3d 1128 (2005).