Pushback continues against ALI restatement of liability insurance

In May 2018, the American Law Institute (ALI) gave final approval to its “Restatement of Law, Liability Insurance.” Portions of the restatement continue to prove controversial, and state legislators have begun pushing back against it.

The ALI is an independent organization of legal professionals that seeks to clarify and simplify U.S. case law to help judges in their decisions. To this end, the ALI publishes a variety of materials that describe what the case law says in various areas, including insurance. One of the materials the ALI publishes is called a “restatement of law,” which attempts to describe common law and its statutory elements. It’s basically a way for judges to know where the law currently stands on a variety of issues.

The latest restatement addresses liability insurance and includes provisions that have met with vocal opposition from state legislatures, the insurance industry, and lawyers. These include, among other things, possible changes to how insurance policies can be interpreted; how coverages are triggered for “long-tail” claims (claims that can last for many years, like environmental losses); and how an insurer might be held responsible for breaching its duty to defend.

Opponents argue that some provisions of the restatement could fundamentally – and improperly – change how liability law operates. That in so changing liability law, the restatement arrogates powers to regulate insurance that properly belong to state legislatures. That many aspects of the restatement do not accurately reflect current state case law and weigh the scales against the legal rights of insurance companies. That portions of the restatement are less a description of law than they are a “wish list” for what the law should be.

Others have called these criticisms of the restatement unfounded or have sought a more balanced response to its changes.

But regardless of who is right, state legislatures have begun to act against the restatement. The National Conference of Insurance Legislators has come out against it. Arkansas, Michigan, North Dakota, Ohio, Tennessee, and Texas have all recently passed legislation that in some form seeks to curtail or condemn the use of the restatement under their respective insurance laws. The Kentucky and Indiana legislatures have also passed resolutions stating their opposition to the ALI’s restatement.

How this will all shake out remains to be seen: will the restatement of law for liability insurance begin to make its mark in case law? Will legislation against the restatement continue to spread? Only time will tell.

Michigan arson hotline gets a second life

If it weren’t for the intervention of a determined National Insurance Crime Bureau (NICB) agent and the staff of the Michigan Basic Property Insurance Association (MBPIA), a valuable Michigan arson prevention program would have bitten the dust.

The Michigan Arson Hotline and Rewards Program was run by the Michigan Arson Prevention Committee (MAPC), an agency that provided many services to the state’s fire/police departments, insurance carriers, and the public. But the agency was defunded in 2017 and the hotline ceased to exist. That was unfortunate because the hotline was so successful that from 2014 through 2018, the number of arson-related suspicious claims referred to NICB from Michigan decreased by nearly 50 percent.

During its 30 years of operation the hotline paid out nearly $1 million to confidential informants whose information lead to the arrest and conviction of numerous arsonists, some of whom were involved in very high-profile arson fires within the state.

So, when the hotline was shut down, NICB Supervisory Special Agent Joseph Hanley, working with the Michigan Basic Property Insurance Association (MBPIA), decided to act to revive it. In January, 2018, Hanley and representatives of the MBPIA approached the Detroit Crime Commission (DCC) with a proposal for the DCC to assume the administrative responsibilities of the arson hotline and rewards program. Acknowledging the mutual support and success of the arson hotline, the DCC enthusiastically agreed to the proposal.

Arson is the act of deliberately setting fire to a building, car or other property for fraudulent or malicious purposes and is a crime in all states. According to the National Fire Protection Association (NFPA), there were 22,500 fires intentionally set in structures in 2017, an increase of 13 percent from 2016. The 2017 structure arson cases resulted in 280 civilian deaths and $582 million in property loss. Additionally, there were an estimated 8,500 intentionally set vehicle fires in 2017, these fires resulted in $75 million in property loss, an increase of 88 percent from 2016.

The I.I.I. has facts about arson here (members only content).

Offshore wind farms: what’s the insurance angle?

In January 2019, wind power accounted for about 7 percent of net energy generation in the United States. While that doesn’t sound like much, wind power has been a significant contributor to new electricity generation over the past few years (though natural gas still leads the pack).

While most wind farms are onshore, wind farms on large lakes and oceans are becoming increasingly popular. Most notably, offshore wind speeds are much faster and steadier than on land. The U.S. Department of Energy estimates that wind off U.S. coasts offers a technical resource potential of about 7,200 terawatt-hours of electricity generation per year – which basically translates to double the country’s current electricity use. Even if just 1 percent of this potential is tapped into, that can end up powering nearly 6.5 million homes.

What’s the insurance angle?

Constructing and operating an offshore wind turbine is no stroll on the beach. Start-up costs can be significant (though they have been declining rapidly). And many pieces – both literal and logistical – need to come together before a wind farm can start generating electricity: transporting the towers and blades out to sea on specialized vessels; sinking foundations into the ocean or lake floor; constructing onshore and offshore power substations; laying cable between the turbine and the land. Plus, there’s Mother Nature to reckon with, like hurricanes and lightning strikes (a very common danger facing wind turbines, unsurprisingly).

Offshore wind operations are complex, with many unique risks. But the insurance marketplace is sophisticated and offers coverage for all phases of wind farm construction and operation.

There is no standard “offshore wind turbine” insurance policy. In all likelihood, windfarm insurance policies are a tailored mixture of many different policies to meet an operator’s unique needs.

Let’s walk through some of the coverages that might be made available.

Wind turbine construction

Builder’s risk property insurance: this insurance covers property during a construction project. There is no standard builder’s risk form, so coverage can vary widely, but usually the coverage applies to the building being constructed and any materials being used on site.

Liability wrap-up insurance: Typically all the engineers, contractors, subcontractors, etc. on a construction project have their own general and professional liability insurance. But for big, complicated projects like an offshore wind farm, the project owner might purchase what’s called a “wrap-up”, which basically, well, wraps up everyone’s liability insurance into one policy. This both simplifies the risk management process and offers cost savings to everyone involved.

Delay in start-up insurance: Affectionately called “DSU insurance,” this coverage protects developers and owners of any revenue lost due to a delay in finishing construction. For example, if a wind turbine’s construction is delayed because of a storm, DSU could cover the operator for their lost revenue.

Wind turbine operation

Property/liability insurance: Like pretty much every commercial operation, wind turbine operations probably have a package of property and liability insurance. The former will cover the actual turbine from certain types of losses (like fire); the latter will cover the wind turbine owners from any liability they might incur against others, like if the turbine collapses and hits a nearby boat.

Wind operations might also have business interruption coverage, which could kick-in if a turbine stops functioning and the operator losses money during the downtime. They may also have separate coverage protecting them from any pollution or environmental liability arising out of the turbine’s operations.

Ocean marine insurance

Offshore wind operators may also consider ocean marine insurance coverages, which can include:

  • Hull insurance: insuring a vessel for physical damage.
  • Ocean marine liability insurance: covering liability arising out of a vessel’s operation, including collision damage and, often, wreck cleanups.
  • Ocean marine cargo insurance: covering damage to cargo on a vessel.

Insurance plays a vital role in developing offshore wind farms. Operators and investors already face significant costs just to get a turbine out to sea. Knowing that insurance will protect them if something goes wrong is one of the reasons they’re willing to take on these vital energy projects in the first place.

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