In The United States District Court For The Southern District Of Illinois

ANGELA HIGGINS,Plaintiff,
and
THE UNITED STATES OF AMERICA,Plaintiff-Intervenor,
vs.
WARRIOR INSURANCE GROUP,
a/k/a d/b/a GALLANT INSURANCE
COMPANY, a/k/a d/b/a VALOR
INSURANCE COMPANY, Defendant.

Civil No. 99-114-DRH

CONSENT DECREE

INTRODUCTION
  1. This Consent Decree is made and entered into by and between the United States of America, Angela Higgins, Warrior Insurance Group, Inc., and its subsidiaries, Gallant Insurance Company and Valor Insurance Company (the "Parties").
  2. Warrior Insurance Group, Inc., through its subsidiaries, Gallant Insurance Company and Valor Insurance Company, provides automobile insurance to the general public throughout Indiana and Illinois. Warrior Insurance Group, Inc., is the parent corporation, and Gallant Insurance Company and Valor Insurance Company are its wholly owned subsidiaries. In this Consent Decree, the term "Defendant" is defined to include Warrior Insurance Group, Inc., Gallant Insurance Company, and Valor Insurance Company. This Consent Decree applies to Defendant as set forth in paragraph 35.
  3. This Consent Decree resolves Angela Higgins & United States v. Warrior Insurance Group, Inc., a/k/a d/b/a/ Gallant Insurance Company, a/k/a d/b/a Valor Insurance Company, Civil No. 99-114-DRH, filed in United States District Court for the Southern District of Illinois.
  4. Plaintiff, Angela Higgins, filed this action against Defendant, asserting a claim under Title III of the Americans with Disabilities Act of 1990, 42 U.S.C. ァァ 12181-89, as well as alleging various causes of action arising under Illinois state law.
  5. The United States intervened in this action to enforce Title III of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. ァァ 12181-89, and its implementing regulations, 28 C.F.R. part 36.
  6. The Parties have agreed that the negotiation and entry of this Consent Decree without further protracted and expensive litigation is in the public interest and the most effective means of resolving this matter.
  7. Defendant agrees to comply fully with the ADA, and, to that end, to implement the policies and procedures set forth in paragraphs 19-24 of this Consent Decree. These policies and procedures are designed to ensure that Defendant adheres to the requirements of the ADA, which prohibits discrimination against individuals with disabilities in the full and equal enjoyment of goods and services, 42 U.S.C. ァ 12182(b)(1)(A)(i); 28 C.F.R. ァ 36.202(a).
  8. SUBJECT MATTER JURISDICTION
  9. For purposes of this Consent Decree, this Court has subject matter jurisdiction of this action under 42 U.S.C. ァ 12188(b)(1)(B) and 28 U.S.C. ァァ 1331 and 1345.
  10. For purposes of this Consent Decree, Defendant agrees that its subsidiaries' sale of automobile insurance to the general public is covered as a "public accommodation" under Title III of the ADA, 42 U.S.C. ァ 12181(7)(F); 28 C.F.R. ァ 36.104.
  11. For purposes of this Consent Decree, the Parties agree that Plaintiff was regarded as an individual with a disability as defined under the ADA, 42 U.S.C. ァ 12102(2); 28 C.F.R. ァ 36.104.
  12. BACKGROUND

  13. In October 1998, Plaintiff purchased a six-month automobile insurance policy to insure her 1990 Nissan Maxima. Plaintiff completed the application for this insurance policy, and paid her initial premium.
  14. Question Number 7 on the Gallant application for insuranceincluded the following question: "Has any driver been treated for diabetes, heart disease, or any nervous condition in the past 3 years, or does any driver have a medical disability? If yes, submit a complete Physician's Report." Ms. Higgins' application was answered "No."
  15. Question Number 6 (formerly Question Number 7) of that application now reads: "Has any driver been treated for diabetes, heart disease, epilepsy or any nervous condition in the past 3 years, or does any driver have a medical, physical or mental disability? If yes, submit a complete Medical Authorization/Physician's Report."
  16. In November 1998, Plaintiff, or someone on her behalf, notified Defendant that plaintiff's automobile was stolen, and a claim was presented to Gallant.
  17. In the course of processing her theft claim, Defendant discovered that Plaintiff had been diagnosed as mentally retarded. Defendant asked Plaintiff to submit, within five days, a Physician's Report indicating that she was able to drive a motor vehicle safely. Plaintiff submitted this report within five days. Defendant contends that the Physician's Report form indicated that it be completed by "(the attending physician)." Defendant is claiming Plaintiff submitted a non-attending Physician's Report within five days. Based, at least in part, on the information defendant learned regarding mental retardation and the negative response to Question Number 7 on Ms. Higgins' application, Defendant rescinded Ms. Higgins' insurance policy. Plaintiff and the United States allege that Defendant refused to pay Plaintiff's theft claim and rescinded her insurance policy because Defendant regarded Plaintiff as having a disability, in violation of Title III of the ADA.
  18. Plaintiff alleges that Defendant engaged in conduct that violated Illinois state law, including vexatious refusal to pay Plaintiff's theft claim, intentional infliction of emotional distress, publically disclosing private facts to third parties, and fraud.
  19. Defendant asserts that it did not violate any laws, including the ADA, and that Ms. Higgins' policy was rescinded based upon misrepresentations made by her, and not based upon her disability.
  20. INJUNCTIVE RELIEF

  21. Defendant agrees that it will not discriminate against any insured or applicant for insurance who has a disability in the full and equal enjoyment of Defendant's goods and services. To this end, Defendant agrees to implement the following policies and procedures:
  22. Policies and Procedures

  23. Within 90 days of entry of this Consent Decree, Defendant will change the wording of Question Number 6 (formerly Question Number 7) of its Illinois and Indiana insurance applications to read: "Does any driver have, or, in the past 3 years, has any driver been treated for, a physical or mental condition that might affect the driver's ability to operate a motor vehicle safely? If yes, submit a complete Medical Authorization/Physician's Report. (We do not discriminate against qualified drivers with disabilities.)"
  24. Defendant agrees that, in any instance in which an insured or applicant for insurance provides Defendant with a report from a doctor (whose background and experience qualifies him/her, within the meaning of applicable law, to render such an opinion) indicating that the insured or applicant is able (either without qualification or limitation, or with qualifications or limitations consistent with restrictions on the individual's driver's license) to operate a motor vehicle safely, the fact that the insured or applicant for insurance has a mental or physical condition shall not, in any way, affect Defendant's decision to issue an insurance policy or the premium charged.
  25. Within 60 days of entry of this Consent Decree, Defendant will incorporate the following policy statement into its training materials, Rescission Request Form, and Medical Authorization/Physician's Report; and into a memorandum or E-mail to be distributed to all of Defendant's employees who are involved, either in a direct or supervisory fashion, with the sale or underwriting of insurance policies or with claims adjusting; and into its Underwriting Guidelines through a Marketing/Underwriting Flash to be distributed to all agencies and/or producers that sell Defendant's insurance policies:
  26. In any instance in which an insured or applicant for insurance provides the insurance company with a report from a doctor (whose background and experience qualifies him/her, within the meaning of applicable law, to render such an opinion) indicating that the insured or applicant is able, either without qualification or limitation, or with qualifications or limitations consistent with restrictions on the individual's driver's license, to operate a motor vehicle safely, the fact that said insured/applicant has a mental or physical condition shall not, in any way, affect the decision to issue insurance or the premium charged.

  27. Defendant further agrees that it will not rescind an insurance policy on the ground that the insured or applicant for insurance failed to list a mental or physical condition on the application for insurance, in any instance where the insured or applicant for insurance provides Defendant with a report from a doctor (whose background and experience qualifies him/her, within the meaning of applicable law, to render such an opinion) indicating an ability to operate a motor vehicle safely (without qualification or limitation) within fourteen (14) days of receiving Defendant's request for such a report.
  28. Within 60 days of entry of this Consent Decree, Defendant will incorporate the following policy statement into a memorandum or E-mail to be distributed to all of Defendant's employees who are involved, either in a direct or supervisory fashion, with the sale or underwriting of insurance policies or with claims adjusting; into the Rescission Request Form; and into training materials:
  29. If the insurance company becomes aware that an insured has failed to indicate on the application for insurance that he or she has a mental or physical condition that might affect the insured's ability to operate a motor vehicle safely, the insurance company may request, in writing, that the insured send a report from a doctor (whose background and experience qualifies him/her, within the meaning of applicable law, to render such an opinion) indicating that the insured or applicant is able, without qualification or limitation, to operate a motor vehicle safely. The insurance company shall notify the insured in writing that he or she must send the physician's report within fourteen (14) days (or longer, if mutually agreed in writing) of receipt of the request for such report. The insurance company will not refuse to pay an insurance claim, or make a decision to rescind an insurance policy, on the ground that the insured has failed to disclose a condition on the application for insurance, in any instance where the insured sends such physician's report within fourteen (14) days (or longer, if mutually agreed in writing) of receipt of the request for such report.

  30. Defendant will provide instruction on the policies set forth in paragraphs 19-23 as part of its training of new hires in claims and underwriting.
  31. Reporting Requirements

  32. Defendant agrees to produce all documents, reports, and other materials requested in paragraphs 26-29 to the Disability Rights Section of the U.S. Department of Justice at the following address:
  33. Disability Rights Section
    Civil Rights Division
    U.S. Department of Justice
    P.O. Box 66738
    Washington, D.C. 20035-6738
    Attention: Heather A. Wydra

  34. Within the following time frames, Defendant will send the following materials to the Disability Rights Section of the U.S. Department of Justice:
    1. within 90 days of the entry of this Consent Decree, a copy of the Illinois and Indiana insurance applications changed as described in paragraph 19; and
    2. within 60 days of the entry of this Consent Decree, a copy of all E-mails and all Illinois and Indiana documents described in paragraphs 21 and 23 implementing the policy statements set forth in paragraphs 21 and 23.
  35. For two years following the entry of this Consent Decree, Defendant will provide the Disability Rights Section of the U.S. Department of Justice the following information, with names and identifying information redacted (except for the insurance policy number), on a semi-annual basis. "Semi-annual" means that reports are due on November 15 and May 15, each year. The Parties agree that the first such report will be due on November 15, 2000:
    1. a copy of all applications for insurance indicating an affirmative response to Question Number 6 (or any other question that relates to or seeks information about the disability of an applicant for insurance);
    2. for all applications described in subsection (a), a copy of the Medical Authorization/Physician's Report (if returned) and any other material sent with the report;
    3. for all applications described in subsection (a), notice as to whether the applicant was afforded insurance coverage or whether insurance coverage was declined, canceled or rescinded, and, if coverage was declined, canceled or rescinded, all reasons for such; and,
    4. for any applicant whose information is reported under subsections (a) - (c) through whom the Disability Rights Section of the U.S. Department of Justice wishes to discover further information, Defendant agrees to forward the Disability Rights Section's privacy release correspondence to said applicant.
  36. In every instance in which Defendant rescinds an insurance policy on the ground that the insured failed to disclose a mental or physical condition on the application for insurance, or otherwise made a misrepresentation with respect to Question Number 6 or any other question relating to or seeking information about the applicant's disability, Defendant will blind copy the Disability Rights Section of the U.S. Department of Justice on the letter that it sends to the insured notifying him or her of the rescission, after redacting the insured's name. For any insured whose letter is copied under this paragraph through whom the Disability Rights Section of the U.S. Department of Justice wishes to discover further information, Defendant agrees to forward the Disability Rights Section's privacy release correspondence to said insured.
  37. When requested to do so by the United States, Defendant will provide the Disability Rights Section of the U.S. Department of Justice with any additional materials (properly redacted) underlying or relating to the materials described in paragraphs 26-28 within fourteen (14) days of such request. The United States will direct such a request to both James P. Hallberg, President, and Sandra J. Horn, Executive Vice President, at 6640 S. Cicero, Bedford Park, IL 60638.
  38. The Disability Rights Section of the U.S. Department of Justice shall, in its discretion, have the right, upon written notice, to extend the reporting requirements for an additional year in the event a problem is identified by the Disability Rights Section.
  39. MONETARY SETTLEMENT

  40. Defendant agrees to pay Plaintiff, Angela Higgins, and her attorney the total sum of $175,000.00 within ten (10) days of entry of this Consent Decree. The Parties agree that this payment resolves all ADA claims expressly alleged in the United States' Amended Complaint and the Plaintiff's Amended Complaint, except as otherwise provided in paragraph 38.
  41. Plaintiff, Angela Higgins, and Defendant agree that this payment also resolves Plaintiff's claims arising under Illinois state law.
  42. In addition, and pursuant to 42 U.S.C. ァ 12188(b)(2)(C), Defendant will pay the amount of $25,000.00 to the United States within ten (10) days of entry of this Consent Decree.Defendant willdirect that payment be made to "United States of America" and send payment to the following address:
  43. United States Attorney
    Southern District of Illinois
    Nine Executive Dr., Suite 300
    Fairview Heights, IL 62208
    Attention: Mark R. Niemeyer

    IMPLEMENTATION AND ENFORCEMENT

  44. This Consent Decree constitutes the entire agreement between the United States and Defendant on the matters raised herein, and no other statement, promise, or agreement, either written or oral, made by the United States or Defendant or agents of the United States or Defendant, that is not contained in this Consent Decree, shall be enforceable.Entry of this Consent Decree does not affect the continuing responsibility of Defendant to comply with all aspects of the ADA. Entry of this Consent Decree also does not affect the United States' ability to enforce any provision of the ADA, except that the United States is barred from seeking relief beyond what is set forth in this Consent Decree for the violations of the ADA that are expressly alleged in the United States' Amended Complaint, except as otherwise provided in paragraph 38.
  45. This Consent Decree is binding on Defendant and all of the parents, controlled affiliates, agents, subsidiaries, and employees of Gallant Insurance Company and Valor Insurance Company, and all of their successors in interest. Defendant has a duty to notify all such successors in interest, if any, of these obligations and to include in all relevant future documents transferring any right or interest in them notice of the obligations set forth in this Consent Decree. Should Warrior Insurance Group, Inc., or any of its subsidiaries or successors in interests, create or acquire any new or different insurance companies, this Consent Decree is, likewise, binding upon said new or different insurance companies.
  46. This Consent Decree shall remain in force for five (5) years from the date of its entry by the Court.
  47. In addition to the reporting requirements set forth in paragraphs 25-30, the United States may review compliance with this Consent Decree at any time during its term, by requesting (in writing) documents, interviews, or other information and materials from Defendant. Defendant will produce (after proper redaction) any documents; any individuals (within the defendant's control) for interviews, subject to any and all privileges; or any other information or materials sought by the United States within fourteen (14) days of the United States' request. For any individual whose information is reported under this paragraph through whom the Disability Rights Section of the U.S. Department of Justice wishes to discover further information, Defendant agrees to forward the Disability Rights Section's privacy release correspondence to said individual.
  48. In the event the United States believes that Defendant has failed to comply with one or more provisions of this Consent Decree, the United States may:
    1. File a motion in cause number 99-114-DRH to enforce the Consent Decree in U.S. District Court for the Southern District of Illinois; in any instance in which the United States determines that Defendant has failed to comply with one or more provisions of the Consent Decree, the United States shall, first, notify Defendant via letter to both James P. Hallberg, President, and Sandra J. Horn, Executive Vice President, at 6640 S. Cicero, Bedford Park, IL 60638. In the event that Defendant does not cure the non-compliance, and supply the United States with proof thereof, within 14 days of the date of the letter, the United States may bring a motion as described in this subsection. Further, in the event that the Defendant engages in any subsequent non-compliance which is similar in nature, the United States may immediately bring such a motion (without the prior notice and opportunity to cure described above). The Parties agree:
      1. for purposes of this Consent Decree, that the U. S. District Court for the Southern District of Illinois has personal and subject matter jurisdiction over this Consent Decree, the matters set forth in it, and the parties to it;
      2. that the U. S. District Court for the Southern District of Illinois, for a period of five (5) years, has the power to award whatever relief is required, at law and in equity, to enforce the terms of this Consent Decree, including the authority to order specific performance of any of the obligations that Defendant has assumed under the terms of the Consent Decree; and
      3. that, in the event the Court determines that Defendant has failed to comply with any term in this Consent Decree, such failure to comply shall be treated as a violation of Title III of the ADA, and the United States may seek all remedies provided in 42 U.S.C. ァ 12188. As part of such remedies, the United States may seek, and the Court may assess, a civil penalty as specifically provided in 42 U.S.C. ァ 12188 (b)(2)(C)(ii). The Court may consider the severity of the conduct at issue in the amount assessed, if any.
    2. In the alternative, the United States may bring an action to enforce compliance with the ADA and its implementing regulations in any United States District Court where jurisdiction and venue are proper. The Parties agree that, should such an enforcement action be filed, the United States and the Court may consider any violation of the ADA to be specifically covered under 42 U.S.C. ァ 12188 (b)(2)(C)(ii), for purposes of seeking a civil penalty. In the event the United States chooses to bring an enforcement action under this provision, the terms of the Consent Decree will remain in full force and effect.
  49. This Consent Decree is a public document. Any of the parties to this Consent Decree may provide a copy of this Consent Decree to any person or entity.
  50. While the Consent Decree is in force, failure by the United States to seek enforcement of this entire Consent Decree or any provision thereof with regard to any deadline or any other provision contained herein shall not be construed as a waiver of the United States' right to do so with regard to that or any other provision of the Consent Decree.

It is so ORDERED.

DATED this ___ day of , 2000.

BY THE COURT:

___________________________________
The Honorable David R. Herndon
United States District Judge

CONSENT DECREE APPROVED BY:

For plaintiff United States of America:

W. CHARLES GRACE
United States Attorney

__________________________________
MARK R. NIEMEYER
Assistant U. S. Attorney
Nine Executive Dr., Suite 300
Fairview Heights, IL 62208
(618) 628-3700

BILL LANN LEE
Acting Assistant Attorney General
Civil Rights
JOHN L. WODATCH
Chief, Disability Rights Section
L. IRENE BOWEN
Deputy Chief, Disability Rights Section
HEATHER A. WYDRA
Trial Attorney
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
P.O. Box 66738
Washington, D.C. 20035-6738
(202) 307-1061

For plaintiff Angela Higgins:

___________________________________
CHRIS KOLKER
Bar No. 6256227

Charles J. Kolker, Jr., P.C.
9423 West Main Street
Belleville, IL 62223
(618) 398-3111

For defendant Warrior Insurance Group,
Inc., a/k/a d/b/a/ Gallant Insurance
Company, a/k/a d/b/a Valor Insurance
Company:

___________________________________
BETH C. BOGGS
Bar No. 06208313
JOHN J. PAWLOSKI
Bar No. 06207519
BOGGS, BACKER & BATES, L.L.C.
7912 Bonhomme Ave., Suite 400
St. Louis, MO 63105
(314) 726-2310

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Updated August 6, 2015

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