Tuesday, March 23, 2021

No. 414: A Strange Twist in Tranamerica's Appeal in the Lebbin Case

In No. 372 (May 18, 2020), I posted an update on the Spector-Lebbin Family Trust (Trust) lawsuit against Transamerica Life Insurance Company (Transamerica). I mentioned several aspects of the case. I said it began in federal court in Maryland, and was transferred at Transamerica's request to federal court in Florida, where the policies were originally sold and where several potential witnesses were located. I also said the judge in Florida ruled Transamerica should pay the Trust about $2.5 million, including interest, for breach of contract. I also said Transamerica appealed to the federal Eleventh Circuit.

In No. 397 (November 9, 2020), I posted another update. I said Transamerica and the Trust filed their initial appellate briefs on August 31, 2020 and October 30, 2020, respectively. I also said there was not yet a timetable for the appellate case.

A Strange Twist
The Eleventh Circuit covers Alabama, Florida, and Georgia. Thus it was natural for Transamerica to file its appeal in the Eleventh Circuit. On February 23, 2021, in a strange twist, the clerk of the Eleventh Circuit wrote a letter to the parties raising a jurisdictional issue. Here is the opening paragraph of the clerk's letter (the full letter is in the complimentary package offered at the end of this post):
After review of the district court docket entries, order and/or judgment appealed from, and the notice of appeal, it appears that this court may lack jurisdiction over this appeal. If it is determined that this court is without jurisdiction, this appeal will be dismissed.
The clerk asked the parties to advise the court simultaneously within 14 days of their positions regarding the jurisdictional issue. He said they could file their responses electronically, and did not need to file paper copies. Both parties filed their responses on March 9. On March 17, the Trust filed a "motion for leave to file sur-reply." The next day, Transamerica filed an opposition to the motion. The two responses, the motion, and the opposition to the motion are in the complimentary package offered at the end of this post. At this writing, there is nothing further on the Eleventh Circuit docket.

General Observations
In their responses to the jurisdictional issue, the parties explained why they think the Eleventh Circuit has jurisdiction. I do not understand why the Eleventh Circuit thinks it may not have jurisdiction. I will report further developments.

Available Material
I am offering a complimentary 55-page PDF consisting of the Eleventh Circuit clerk's letter (2 pages), the Trust's response to the clerk's letter (21 pages), Transamerica's response to the clerk's letter (12 pages), the Trust's motion (10 pages), and Transamerica's opposition to the motion (10 pages). Email jmbelth@gmail.com and ask for the March 2021 package about the Lebbin case.


Wednesday, March 17, 2021

No. 413: USAA's Executive Compensation for 2020 Hits the News

On March 1, 2021 (the due date), United Services Automobile Association (USAA) filed with the Nebraska Department of Insurance the 2020 Supplemental Compensation Exhibits for USAA and four other USAA companies: USAA Casualty Insurance Company, USAA Life Insurance Company, USAA General Indemnity Company, and Garrison Property and Casualty Insurance Company. The exhibits are required by Nebraska law for insurance companies doing business in the state. The five exhibits are here.

The Danner Article
Patrick Danner is a staff writer for the San Antonio Express News. In an article updated March 5 and entitled "Former USAA CEO Stuart Parker receives more than $6 million golden parachute," Danner wrote about recent executive compensation developments at USAA. He wrote not only about Parker, but also about others, including Parker's successor, Wayne Peacock. Here are the first three sentences of the Danner article:
Former USAA CEO Stuart Parker had a cushy landing following his departure last year from the San Antonio insurance and financial services company. Parker, who retired January 31, 2020, after leading USAA for almost five years, received at least $6.5 million in severance payments. The golden parachute accounted for more than half of the $11.3 million in total compensation five USAA insurance companies paid him last year.
The Cunningham Article
Waylon Cunningham writes about business and technology. On March 5, he wrote an article in the San Antonio Report entitled "Former USAA CEO Stuart Parker netted a $6.5 million severance package." Here are the first three sentences of the Cunningham article:
Former USAA CEO Stuart Parker received a severance package worth at least $6.5 million after he left the company last year. The payments, made after he retired January 31, 2020, formed the bulk of the more than $11.3 million he received in total compensation from five USAA-affiliated companies last year, according to records from the Nebraska Department of Insurance. Besides the severance package, Parker in 2020 also received $336,473 in salaries and $4.8 million in additional compensation, including bonuses.
The USAA Campaign
In the early days of this blog site, I posted three blog items about USAA's campaign to repeal Nebraska's century-old insurance executive compensation disclosure law. William H. McCartney, who at the time was senior vice president and associate general counsel of USAA, led the repeal effort. He had served as Nebraska's director of insurance from 1987 to 1994, and as president of the National Association of Insurance Commissioners in 1992. The repeal effort failed, and Nebraska's disclosure law remains in effect today. For further details about the USAA campaign, see No. 38 (March 31, 2014), No. 39 (April 7, 2014), and No. 40 (April 11, 2014).

Executive Compensation Data for 2019
Long-time readers are aware that I have been writing about executive compensation in the insurance industry for many years. It began with an article in the October 1975 issue of my monthly newsletter, The Insurance Forum, where I showed the 1974 compensation of senior executives of five large mutual life insurance companies. The information was of such great interest to readers that I steadily expanded the coverage.

When I ended the Forum at the end of 2013, I began showing some executive compensation data on this blog site. For example, the 2019 data from my three sources (the Securities and Exchange Commission, the New York State Department of Financial Services, and the Nebraska Department of Insurance) are in No. 381 (July 13, 2020), No. 385 (August 7, 2020), and No. 404 (December 23, 2020).

Chapter 24 of My Memoir
In Chapter 24 of my 2015 book, The Insurance Forum: A Memoir, I summarized my experience over the years in assembling executive compensation data. The experience included many efforts by insurance companies and insurance regulators to prevent access to executive compensation data. Chapter 24 and the book's Table of Contents are here, along with an order form for any reader interested in buying the book.


Thursday, March 11, 2021

No. 412: A Recent John Grisham Page Turner

John Grisham is one of my favorite authors. He has written about three dozen novels, one work of nonfiction, a collection of short stories, and several books for young readers. I have read many of his books.

A Time for Mercy
A few months ago I read A Time for Mercy, which at the time was a recently published page turner. It was set a few years after the events described in his fascinating first book, A Time to Kill, and includes many of the same characters. The book centers around the subject of domestic violence. A teenage boy murders the man in whose house the boy, the boy's mother, and the boy's sister live. The boy is charged with murder and is defended by the same attorney who was one of the central characters in Grisham's first book. The recent book, like all of Grisham's books, is almost impossible to put down, and has some surprising developments at the end. I strongly recommend the book.

My Earlier Reviews of Grisham Books
Grisham's sixth book, a 1995 novel entitled The Rainmaker, centers around a large fictional health insurance company whose refusal to honor a claim leads to the death of the claimant. The insurance angle prompted me to write a short review of the book in the August 1995 issue of my monthly newsletter, The Insurance Forum.

My second review of a Grisham book described one of the short stories, entitled "Michael's Room," in a 2008 book entitled Ford County. The story is about an infant who suffers severe brain damage as the result of a botched delivery, and about the family's negligence lawsuit against the physician. My review of "Michael's Room" was in the May 2010 issue of the Forum.

My third review of a Grisham book was about a 2010 book entitled Theodore Boone: Kid Lawyer. The book was the first of several books for young readers. The central character is a 13-year-old whose parents are lawyers and who seems headed for a legal career himself. Here though, our hero gets involved in a murder trial in his home town. My review of the book was in the December 2010 issue of the Forum.

My first three reviews of Grisham books, described briefly above, are here. My fourth review of a Grisham book, a 2013 book entitled Sycamore Row, appeared in No. 7 (November 13, 2013), one of my first blog posts.


Thursday, March 4, 2021

No. 411: More on COVID-19 and the Underwriting of Life Insurance

In No. 409 (February 11, 2021), I reported that the Consumer Federation of America (CFA) had written a letter to the National Association of Insurance Commissioners (NAIC) about COVID-19 and the underwriting of life insurance. The letter grew out of developments reportedly occurring in Europe. The CFA sent copies of the letter to the chief executive officers of several large life insurance companies based in the United States, as well as to the American Council of Life Insurers (ACLI). In No. 409, I provided this link to the CFA letter.

The ACLI Letter to the CFA
I said I would write soon to the NAIC, the ACLI, the CEOs of a few of the companies to which the CFA had written, and a few other CEOs. I also said I would ask for their comments, and would post a follow-up report on the responses. However, I changed my mind when I received from the CFA a copy of a two-page letter it had received from Susan K. Neely, president and CEO of ACLI. The ACLI letter is here.

The CFA Reply to the ACLI Letter
Shortly thereafter, I received from the CFA a copy of its reply to the ACLI letter. The CFA reply to the ACLI letter is here.

General Observations
I think the original CFA letter, the ACLI letter to the CFA, and the CFA reply to the ACLI letter together contain a great deal of food for thought. It will be interesting to see what, if anything, the NAIC does about the problem. I plan to report about significant further developments on the subject.


Wednesday, February 24, 2021

No. 410: The Age 100 Problem Remains Alive and Well

My first article about the age 100 problem in cash-value life insurance was in the January 2001 issue of The Insurance Forum, my monthly newsletter that preceded this blog site. My first blog post on the subject was No. 141 (February 1, 2016).

The Age 100 Problem
The age 100 problem stems from the fact that cash-value life insurance policies are often sold as "permanent life insurance," "whole life insurance," or some other expression falsely suggesting that the life insurance protection will last for the insured's entire life. In fact, however, the protection lasts only until the policy's "terminal age." Today, many millions of cash-value life insurance policies are in force in the United States with a terminal age of 100. Thus the "whole life" policy is actually an endowment at age 100. Furthermore, cash-value life insurance policies are often sold with heavy emphasis on the facts that the "inside interest" is income-tax deferred and the death benefit is income-tax exempt.

Extended Maturity Riders
In No. 226 (July 20, 2017), I reported that some (but not all) companies had begun offering extended maturity riders (EMRs) to universal life policies. Here is language describing the EMR offered by Principal Life Insurance Company:
If the insured reaches the stated maturity age, maturity is extended to the date of his or her death. The rider is automatically added to policies in states where approved, and there is no charge for the rider. There will be no charges during the maturity extension period. However, loan interest will continue to be charged. No additional premium payments, other than loan payments, will be allowed.
At the time I was not aware of any companies offering EMRs on traditional whole life policies. Nor am I aware of any such offers today.

A New Mortality Table
As mentioned earlier, millions of policies now in effect are based on a mortality table that has a terminal age of 100. However, recent policies are based on a new mortality table that has a terminal age of 121. I have often asked, but no actuary has ever explained to me why it is impossible to issue a policy based on a mortality table that has no terminal age.

A 2018 Survey
In No. 277 (July 17, 2018), I reported on the results of a survey I conducted about the age 100 problem. I wrote to the chief executives of 22 life insurance companies asking some important questions about the age 100 problem. Nine of the companies acknowledged receipt of the survey in at least some fashion. However, some of the responses provided little or no information. I showed in detail the disappointing responses to the survey.

A Recent Email
Recently I received, out of the blue, an email from an individual with a family member who survived to age 100. The family member received a check for the face amount. Later the family member was hit with huge bills for federal and state income taxes, as well as penalties. Normally I would identify the company and provide other details. In this instance, however, I am choosing to protect the privacy of the individual and the family.

General Observations
Over the 20 years that I have been writing about the age 100 problem, it has become clear that life insurance officials are reluctant to discuss the problem. I think the reason is they fear that publicity about the problem might endanger the highly favorable income tax treatment of cash-value life insurance. Although there have been important developments, such as EMRs, progress has been slow. For example, no one has ever responded to the idea of using a 1035 exchange to replace a policy based on a mortality table containing a terminal age of 100 with a policy based on a mortality table containing a terminal age of 121. I would welcome comments from readers about the age 100 problem. Please send an email to jmbelth@gmail.com.


Thursday, February 11, 2021

No. 409: COVID-19 and Life Insurance Underwriting

The Consumer Federation of America (CFA) recently announced it had written to the National Association of Insurance Commissioners (NAIC) about COVID-19 and the underwriting of life insurance. The CFA sent copies of the letter to chief executives of several large life insurance companies based in the United States. The letter grew out of developments reportedly occurring in Europe. A week later, I asked the CFA whether it had received any replies. The CFA said no replies have been received as yet.

The CFA Announcement
The CFA announcement, dated January 29, 2021, is entitled "Recovered COVID-19 Patients Facing New Life Insurance Hurdles in Europe, Protections Needed for American Consumers." Here are the first, third, and fifth paragraphs of the announcement:
CFA sent a letter to the NAIC urging them to adopt a model rule for life insurance underwriters that might want to delay or deny coverage to people who had COVID-19 and recovered or had symptoms but no diagnosis. The letter is in response to recent reporting that some life insurers in Europe are already taking steps to delay or deny people life insurance coverage based on having contracted COVID-19 or suspected of it. Over 25.4 million Americans have already tested positive for the virus, according to The New York Times.
In Europe, some underwriters are imposing waiting periods before COVID-19 patients, even those who have recovered, can apply for coverage. Further, some insurers are limiting coverage for certain age groups as part of their response to the pandemic. Still others are postponing applications for anyone who had COVID-19 or lived with someone who got the disease.
CFA also sent the letter to the CEOs of the leading life insurance companies in America and their trade organization [American Council of Life Insurers, or ACLI] asking them to consider voluntary action to use transparent and reasonable underwriting rules relating to COVID.
My Letters
I will write soon by regular mail to the NAIC, the ACLI, the CEOs of a few of the life insurance companies to which the CFA wrote, and a few other CEOs. I will ask for their comments on the subject. I plan to post a follow-up report on the responses to my letters.

General Observations
I think this is a very important subject. Instead of offering a complimentary package of relevant material, as I normally do, I am providing here a link to the CFA letter to the NAIC.

I would welcome comments from readers on the subject. Please send your comments by email to jmbelth@gmail.com. Should you write to me, please identify yourself and indicate whether your comments may be used with or without attribution. I will honor your request.


Tuesday, February 2, 2021

No. 408: A Recent Change in the Federal Income Tax Law Designed to Benefit Wealthy Life Insurance Policyholders

On January 10, 2021, The Wall Street Journal posted online an article by reporter Leslie Scism entitled "A Small Tax Change Is a Boon for Permanent Life Insurance." The next day, the print edition of the Journal carried on page B8 a revised version entitled "Tax Change Aids Life Insurance." Here are the first few sentences of the latter article:
Federal lawmakers' big year-end spending package includes a little-noticed revision of the tax code that is likely to boost sales of life insurance, particularly for wealthy Americans. The law lowers a minimum interest rate used to determine whether combination savings and death benefit policies known as permanent life insurance are too much like investments to qualify for tax advantages granted to insurance. The interest-rate floor was put in place in 1984 to weed out policies that were mostly investment vehicles with a thin layer of life insurance. Lowering the rate allows owners to put more in the savings portion.
Here I discuss in more detail the federal income tax advantages of cash-value life insurance. I also provide further background on the history of the federal income tax definition of cash-value life insurance.

Federal Income Taxation of Life Insurance
To understand the implications of the recent change, it is necessary to understand the history of the 1984 change in the tax code. That was a time of high market interest rates, far different from today's low market interest rates. Also, it is necessary to understand two extremely important income tax advantages of cash-value life insurance: (1) the "inside interest" in a cash-value life insurance policy is income-tax deferred, and (2) upon the death of the insured person, the death benefit paid to the beneficiary is income-tax exempt.

The Minimum Deposit Plan
One of my early encounters with clever marketers of cash-value life insurance involved the "minimum deposit plan." It was also called "minnie dee" or "minnie dip." To illustrate, Jones bought a favorably priced $100,000 participating whole life policy in 1950 at age 35. He used the minimum deposit plan; that is, each year he paid as little as possible to keep the policy in force. He paid the annual premium, deducted any dividend, borrowed as much as possible under the automatic premium loan clause, paid interest on the policy loan, and on his income tax returns he took a deduction for the policy loan interest he paid. Thus he essentially converted the policy from a level premium, level death benefit, whole life policy with nondeductible premiums into a term policy with a decreasing death benefit and deductible premiums. Or so he thought.

At the end of 1972, after 22 years, Jones decided to end the policy by allowing it to lapse. At that point, the cash value and the amount of the loan were each around $40,000. His income tax return filed in 1973 for the 1972 tax year showed a large deduction for the policy loan interest he had paid in 1972 and had deducted on his tax return for 1972. However, his tax return for 1973 filed in 1974 showed no deduction for policy loan interest paid in 1973. That triggered an Internal Revenue Service audit, which resulted in a whopping tax bill with penalties, as though he had surrendered an old participating whole life policy, which was exactly what he had done.

The Emergence of Universal Life
During the 1960s and 1970s, I often wrote about the need for rigorous disclosure of the price of the life insurance protection component of cash-value life insurance policies, and the need for rigorous disclosure of the rate of return on the savings component of those policies. In my writings, I viewed cash-value life insurance as a combination of a protection component and a savings component. It is a major understatement to say that the life insurance industry was not happy with my writings.

In the late 1970s, market interest rates were high and rising, and universal life insurance—which was also referred to as flexible-premium life insurance—burst on the scene. I will never forget a letter I received in 1979 from an official of one of the companies promoting universal life. He said: "Joe, I hope you're satisfied." The reason for his comment was that one of the claimed advantages of universal life was so-called transparency; that is, the separation of the protection and savings components. Unfortunately, while transparency sounded good, it did not provide adequate disclosure of the price of the protection component and the rate of return on the savings component. Instead, it created a new family of deceptive sales practices.

An Example of Universal Life Deception
In the May 1984 issue of my monthly newsletter, The Insurance Forum, I wrote an article entitled "How Not to Advertise Universal Life." The article focused on a deceptive newspaper advertisement by Indianapolis-based Golden Rule Insurance Company. The article, including a replica of the advertisement, is in the complimentary package offered at the end of this post.

The 1984 Change in the Tax Law
I asked representatives of the American Council of Life Insurers (ACLI), which had lobbied for the 2021 change in the tax law, whether they could provide me with material about the 1984 change. They said they could not locate any such material. Therefore, I will describe what happened, based on my memory.

As market interest rose in the 1970s, clever promoters of life insurance often sold their wealthy clients on the idea of buying a small universal life policy and pouring a large amount of money into the policy in order to benefit from the income-tax deferred inside interest and the income-tax exempt death benefit. That abuse of the income tax system became too much for the Internal Revenue Service and Congress to tolerate. Thus a change was made in the tax code in 1984 to define life insurance in such a way as to prevent the abuse. The tax law was amended to make such an arrangement subject to taxation as an ordinary investment rather than as a life insurance policy.

The 2021 Change in the Tax Law
Today, however, low market interest rates have threatened the viability and the very survival of cash-value life insurance. Thus the life insurance industry, through the ACLI, lobbied Congress to change the definition of life insurance in the tax code in such a way as to preserve cash-value life insurance as a viable financial instrument.

The definition in the new tax provision requires a policy to pass at least one of two tests in order to qualify as life insurance for tax purposes: a cash-value accumulation test (CVAT), or a guideline-premium test (GPT). If a policy fails both tests, the policy is called a modified endowment contract (MEC), and is taxed as an investment vehicle rather than as a life insurance policy. A statement by the ACLI about the 2021 change is in the complimentary package at the end of this post, along with a statement by Bobby Samuelson, editor of The Life Product Review and a nationally-recognized expert on policy design.

General Observations
The January 2021 change in the income tax law, as lobbied for by the ACLI, is an important development in the history of the life insurance business. In this post, I do not attempt to explain the complex changes in the income tax law. However, I urge readers to request the complimentary 14-page package offered below.

Available Material
I am offering a complimentary 14-page PDF consisting of the May 1984 Forum article (2 pages), the ACLI statement on the 2021 tax changes (3 pages), and the Samuelson statement on those changes (9 pages). Email jmbelth@gmail.com and ask for the February 2021 package about the changes in the income tax law relating to cash-value life insurance.