Message #9144

[FooFa]

Foley says the VA and Prudential would have been better off if they had put their 1999 agreement in writing.
“Could that have been done better?” Foley asks. “Probably. Best practice would have been to legally memorialize it at the time.”
Foley says the 1999 changes to the 1965 contract were valid, even if they weren’t in writing, because they were made by mutual agreement by people empowered to make such decisions.
“It was changed by somebody who was authorized to change it,” he says.
Contract Terms
The language of both the 1965 contract and the 2009 amendment make clear that Newark, New Jersey-based Prudential was required to adhere to the original terms until 2009, regardless of any handshake agreements in 1999, insurance lawyer Bridgeland says.
The 1965 contract says any alterations must be made in writing.
“No change in the Group Policy shall be valid unless evidenced by an amendment thereto,” it says. “No Agent is authorized to alter or amend the Group Policy.”
The VA and Prudential signed a revised contract in 2007, saying it was “amended in its entirety.” That contract, with the exact same words as the 1965 agreement, required that Prudential pay survivors with lump sums.
The 2007 revision included the same procedures in the 1965 agreement requiring any changes be made in writing. It contained no mention of the retained-asset system, or of the verbal agreement struck in 1999.
2009 Amendment
It wasn’t until Sept. 24, 2009, that the changes agreed to by VA official Lastowka and Prudential in 1999 were put into writing. The 2009 amendment allowing Prudential to hold onto death benefit payouts was made retroactive to Sept. 1, 2009, not back to 1999.
By putting in writing a change that was verbally adopted 10 years earlier, the VA is effectively trying to backdate the amendment, says Jeffrey Stempel, an insurance law professor at the William S. Boyd School of Law at the University of Nevada, Las Vegas, who wrote ‘Stempel on Insurance Contracts’ (Aspen Publishers, 2009).
“They’re trying to reinvent history,” Stempel says. “You really can’t do that. This is a blatant giveaway by the VA with nothing for the agency or the people in uniform.”
Nine of every 10 survivors ask Prudential for lump-sum payments, the VA says. Prudential sends those families “checkbooks” instead of checks.
‘Disasters Do Happen’
Documents released in the FOIA request show some signs of concern within the VA after Prudential proposed the retained- asset accounts in 1998. Lastowka, the official who allowed Prudential to introduce the Alliance Accounts, said that the insurer’s “checkbook” system wasn’t protected by the FDIC.
“Disasters do happen,” wrote Lastowka, in an e-mail dated June 9, 1999, to Stephen Wurtz, the agency’s deputy assistant director for insurance.
Lastowka said in his e-mail that the lack of FDIC coverage could backfire on survivors.
“Who is responsible if Alliance goes belly up?” Lastowka asked. “I think we have to also be prepared to defend the use of the Alliance Account.”
Lastowka also asked whether Prudential had adequately disclosed to survivors that the Alliance Accounts weren’t covered by FDIC insurance. “Did Pru alert us to the non-FDIC fact?” he wrote to Wurtz. “Or was it in small print as the notice to beneficiaries?”
Documents turned over by the VA didn’t include a response from Wurtz.
‘Aware of Issues’
Lastowka says his e-mail shows the decision to allow Alliance Accounts was carefully considered.
“This e-mail demonstrates simply that the VA’s Insurance program was aware of issues that might be raised as we implemented the payment method and that we should be prepared to respond to inquiries,” Lastowka says. “We were confident that we were making a decision which would benefit survivors.”
The FOIA documents show that on June 10, 1998, Prudential gave a presentation to the VA. It included 10 pages of key points, saying the Alliance Accounts would benefit survivors because they would provide safety, flexibility in how and when to use their money, competitive interest rates and customer service.
In fine print, at the bottom of one of the pages, was this caveat: “Funds in the Alliance Account are direct obligations of The Prudential Insurance Company of America and are not insured by the Federal Deposit Insurance Corporation.”
Sheila Bair
Twelve years later, the issue of the lack of FDIC protection in retained-asset accounts flared anew.
FDIC Chairman Sheila Bair said in August that consumers could incorrectly conclude that retained-asset accounts were insured by the FDIC.
“The insurance company must take care to avoid implying in any way that these accounts are in fact FDIC-insured,” she wrote in an Aug. 5 letter to state insurance regulators.
Some families of veterans have taken their complaints to court. Five survivors filed a federal fraud lawsuit in Boston on Aug. 30 against Prudential claiming the insurer has earned as much as $500 million in profits by improperly keeping beneficiaries’ money instead of paying it out in a lump sum.
The suit, Lucey vs. Prudential Insurance Co. of America, says the insurer fraudulently claims to beneficiaries that the Alliance Account is a lump sum.
‘This Ruse’
“Initiation of this ruse does not constitute payment of anything to anyone,” the suit says. “The Alliance Account is merely a bookkeeping device used by Prudential to hold on to beneficiaries’ money.”
Prudential hasn’t yet filed a response in court. Spokesman DeFillippo says he can’t comment on the case.
“It is important to note that several federal judges have rejected claims against accounts like our Alliance Account, concluding that beneficiaries are in virtually the same position they would be in had the insurer sent them a check,” DeFillippo says. He cited the dismissal of a case against MetLife Inc. on Sept. 10.
Insurance contract professor Stempel says that regardless of the outcome of that lawsuit, it’s clear that Prudential and the VA wrongly manipulated a federal contract at the expense of military members and their relatives. “At a minimum, survivors ought to be made whole with their missed interest,” he says. “The VA really seems to have had the best interests of the insurance company at heart, instead of those of the soldiers and their families.