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Thursday, 31 May 2001 17:00

Fed Antitrust Consent Order outlines directive to insurers

It is time for our community to call upon the true authority of the 1963 Consent Decree and utilize it as a tool to bring about a substantial change in the method in which consumer claims are handled in our collision repair environment. 

For those of you who have not studied the document, now is the time to embrace the Consent Decree's true purpose and read it several times over.

The nuts and bolts of this Federal Antitrust Consent Order is the "Final Judgment" section. This is where the United States Department of Justice outlines a directive to the insurance industry as to what behavior will be considered a violation of the Consent Order.

"Section II" of this document provides us with an answer to the question… Who is to comply?

Excerpts from the 1963 Federal Consent Decree - Final Judgment
Section II

"The provisions of this Final Judgment shall be binding upon each defendant and upon it's officers, dFirectors, agents, servants, employees, committees, successors and assigns, and upon all other persons in active concert or participation with any defendant who shall have received actual notice of this document"

When you read the above statement a few times it becomes obvious that the DOJ's objective was to structure the Consent Decree in such a manner as to effect the entire insurance industry. A necessary objective for our community is to make sure every insurance carrier has a certified copy of the document.

Every insurance company and those individuals employed, representing the business of these corporations. Imagine the reaction we can generate as we send insurance company personnel copies of the Consent Order. Contemplate the position their people will find themselves as they read the "Final Judgment" and realize they have been violating a Federal Antitrust Order!

Let's dissect Section II of the Final Judgment and break it down into individual objectives.

"Shall be binding upon each defendant and upon it's officers, directors, agents, servants, employees, committees, successors and assigns"

These people need copies in their mailboxes and on their desk ASAP. These people need to be brought into the legal action we are implementing, let them corner their legal departments and ask their attorneys what noncompliance of a Federal Consent Decree represents to them personally.

"Agents" is a key word here. How many insurance agents operating local to your business attempt to steer & direct your consumers? These agents will not feel very comfortable once they learn they have been violating a Federal Consent Order. These people are on the low end of the corporation's totem pole already. Most agents purchase error and omission insurance to cover their hind-end, cautiously aware the insurance corporation may not represent them properly in court.

This Consent Order needs to be sent directly to insurance agents representing companies that violate the Consent Order immediately.

"Servants, employees" sounds like appraisers and adjusters to us…. These people are totally ignorant of the Consent Order. When they ask their supervisors for any information in respect to this document they are told it is irrelevant in today's world!

Not valid! Hell, we proved these comments wrong on several occasions. All they have to do is contact the United States Department of Justice and ask the DOJ, "Is the document valid?" After this phone call they can read the document and realize they have violated it for years. Hand it to them when they walk out the door. Offer a copy freely. Suggest they might read the order prior to utilizing any prevailing market rate.

Use the Consent Order as a tool to eliminate the negotiating end of the claim. If the appraiser follows the Consent Order properly the word negotiate will never enter the claim process again.

DRP's violate decree

"All other persons in active concert or participation." This statement is significant as it becomes obvious that all relationships and arrangements between collision repair facilities and insurance companies are a violation of the Consent Order. Again, these people… Our industry's brothers and sisters need to understand they are violating a Federal Consent Order. You can send a copy today to every DRP in your market area or wait until a consumer's damaged vehicle is directed away from your facility.

It has been obvious for most of us that these DRP contracted shops are not the least bit interested in what is proper business sense.

These people willingly sign agreements that protect their insurance partners through indemnity statements included in most DRP contracts. If these people are this naive as to business management they will never grasp the Consent Decree's legitimacy.

The United States Department of Justice made it clear that the Sherman Antitrust act was the basis of their intent to safeguard citizens of America. When business people concert to control a particular marketplace it is a violation of the Sherman Act. A Direct Repair relationship is a concerted effort between an insurance carrier and a particular collision repair provider thus it is an antitrust violation.

Claims adjusters deny knowledge

"Any defendant who shall have received actual notice of this document" Here we have the "coup de grace" of our objective.

The other day I enjoyed a conversation with our Nationwide Insurance Company's State Superintendent. Our conversation went from a consumer's claims problem to this individual asking me how is business? My answer went from business is moderate to what is your opinion of the 1963 Consent Decree?

At this point he exclaimed how rude I was to change our pleasant conversation into a legal challenge. He proclaimed my question as irrelevant as the document in question is an old document without merit in today's economy. I interrupted by advising him the Consent Order to be a perpetual agreement as powerful today as the day it was signed. The superintendent paused, chastised my comments and said we should leave it up to legal experts as he has not read the document.

I then offered to send him a copy for his study and understanding whereas he demanded that he did not want a copy, it was not necessary and he was insulted that I brought the topic to our conversation, Good Day!

Deny, deny, deny

It was after this conversation that I realized the insurance company superintendent had already been advised by Nationwide's legal counsel not to let it be known he was aware of the Consent Decree's contents as he would be legally responsible to adhere to its Judgment Order. This impromptu conversation led us to believe strategies used by the insurance industry are cleverly camouflaged by statements of ignorance. "Gee, you know I did not realize I was breaking the law - is there really a Consent Decree?" Now it is our turn to turn up the heat! Send out those certified and hand delivered Consent Decrees. We need to generate a huge inventory of those certified mail green cards that the United States Post Office provides as receipts. Once our community has compiled a large catalogue of these cards another phase towards the enforcement of the Consent Order will be completed.

Steve Behrndt is a member of the National Committee For Consent Decree Enforcement

 

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