All posts by Tasha Williams

Insurance Industry

US Consumers See Link Between Attorney Involvement in Claims and Higher Auto Insurance Costs: New IRC Report

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According to a new survey conducted by the Insurance Research Council (IRC), most consumers believe attorney advertising increases the number of claims and lawsuits and the cost of auto insurance.

The report, Public Opinions on Attorney Involvement in Claims, analyzes consumer opinions on attorney involvement in insurance claims and expands prior research. Overall, 60 percent of 2000 respondents in this latest nationwide online survey from IRC said that attorney advertising increases the number of claims, and 52 percent said that advertising increases the cost of insurance. Most respondents (89 percent) reported seeing attorney advertising in the past year, and about half reported seeing an increase in the amount of attorney advertising.

The IRC endeavored to gauge perceptions of attorney advertising and its impact on the cost of insurance, consumer awareness and understanding of litigation financing practices, and decisions about consulting attorneys about auto insurance claims. The main lines of inquiry in the survey revolved around:

  • How has the public experienced attorney advertising, and what do they think of the impact?
  • Are they aware of litigation financing, and after being given a description, what do they think of it?
  • Would they be more likely to hire an attorney to help settle an insurance claim or to settle directly with an insurer?
  • What was their previous history with auto insurance claims and their experience with consulting a lawyer to help settle an injury claim?

Results indicate that consumers are exposed to more attorney advertising across most mediums – particularly in outdoor ads, with auto accident advertisements being the most prevalent medium – compared to three years ago. While billboard advertising has experienced the most growth over the past three years, TV is the most recalled medium, with 65 percent of respondents recalling seeing TV ads in the past year.

The study reveals the awareness of litigation financing has risen significantly, but most respondents remain neutral in their opinions. Nonetheless, results show consumers want transparency around the involvement of third-party litigation funding in a case. When asked, “To what extent do you agree or disagree that the participants in a lawsuit should be informed when outside investors are financing the litigation,” 69 percent said they agree.

How might increased attorney advertising fuel legal system abuse?

IRC’s findings support a “significant statistical correlation between whether respondents consulted an attorney and their exposure to advertising. Among those who reported seeing attorney advertising, 74 percent consulted an attorney, compared to 48 percent among those who had not seen attorney advertising.”

The American Tort Reform Association (ATRA) estimates that in 2023, over $2.4 billion was spent on local legal services advertising through television, radio, print ads, and billboards across the United States.  Meanwhile, only 47 percent of respondents in a 2023 American Bar Association (ABA) survey said their firm had an annual marketing budget – a decline from 57 percent in 2022. About 80 percent of the solo practitioners in the study did not have a marketing budget, and only 31 percent of firms of 2-9 lawyers had one. 

Therefore, excessive advertising isn’t universal across the legal industry, and the saturation of advertising channels can more likely be attributed to large firms reaping substantial profits from certain practice areas or firms bolstered by third-party litigation financing. In many instances, both of these conditions factors may be involved. For example, data that ranks the leading legal services advertisers in the United States in 2023 by spending reveals a list dominated by large law firms and attorney conglomerates specializing in mass tort, accident, and personal injury litigation.

The Wall Street Journal reported earlier this year on the ties between advertising surge and the growth in mass product-liability and personal-injury cases, along with the rising involvement from a particular segment of the investment industry in these types of litigation. Nearly 800,000 television advertisements for mass tort cases ran in 2023, costing over $160 million. According to the WSJ, the ads shown most frequently that year included those soliciting individuals who might have been exposed to contaminated water at the Camp Lejeune Marine base. This particular mass tort ranks high on the previously mentioned list of top spenders.

The average dollar amount of third-party litigation funder (TPLF) loans provided to individual law firms ranges from $20 million to $100 million. Given that prospective returns for TPLF loans reportedly reach as high as 20 percent for the riskier mass tort litigation, connecting the surge in advertising for recruiting plaintiffs to the TPLF cash stream may not be such a big leap. Yet, over the years, studies have shown that attorney involvement can increase claims costs and the time needed to resolve them, even while reducing value for claimants.

Insurance claims litigation is a growing concern in several states, including Georgia, Louisiana, and Florida, threatening coverage affordability and availability. In Georgia, for example, data indicates that auto coverage affordability for Georgians has been waning faster than in any other state. An August 2024 report, Personal Auto Insurance Affordability in Georgia, issued by IRC, ranked Georgia 47th in terms of auto insurance affordability, while the state tops the most recent list of places that the American Tort Reform Foundation (ATRF) believes judges in civil cases systematically apply laws and court procedures generally to the disadvantage of defendants.

Triple-I and key insurance industry stakeholders define legal system abuse as policyholder or plaintiff attorney practices that increase costs and time to settle insurance claims, including situations when a disputed claim could have been fairly resolved without judicial intervention. Insurers’ legal costs for claims can mount with the increasing number of lawsuit filings, extended litigation, and outsized jury awards (awards exceeding $10 million).

To join the discussion, register for JIF 2024. Follow our blog to learn more about trends in insurance affordability and availability across the property and casualty market.

Insurance Industry

Triple-I launches campaign to highlight challenges to insurance affordability in Georgia

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By Dale Porfilio, Chief Insurance Officer, Insurance Information Institute

As part of its ongoing work to raise awareness of the impacts of legal system abuse, the Insurance Information Institute (Triple-I) launched a multi-faceted campaign focusing on Georgia. The campaign includes an Interstate 20 billboard in Downtown Atlanta and digital billboards on bus stops and other urban panels across the Metro Atlanta area.

Georgia tops the most recent list of places that the American Tort Reform Foundation (ATRF) calls “judicial hellholes,” states and counties where the organization believes judges in civil cases systematically apply laws and court procedures generally to the disadvantage of defendants. According to ATRF, Georgia earned this ranking due to continued “high nuclear verdicts and liability-expanding decisions by the Georgia Supreme Court.” The state made the list for the first time in the report for 2019-2020, debuting at number 6. 

Triple-I and key insurance industry stakeholders define legal system abuse as policyholder or plaintiff attorney practices that increase costs and time to settle insurance claims, including situations when a disputed claim could have been resolved without judicial intervention. Insurers’ legal costs for claims can mount with the increasing number of lawsuit filings, extended litigation, and outsized jury awards (awards exceeding $10 million). Data from the Insurance Research Council (IRC) indicates that attorney involvement can increase claims costs and the time needed to resolve them, even while reducing value for claimants.

Auto insurance litigation, for example, is a growing concern in Georgia as data reveals coverage affordability for Georgians in this product area has been significantly waning faster than in any other state. An August 2024 report, Personal Auto Insurance Affordability in Georgia, issued by IRC, ranked Georgia 47th in terms of auto insurance affordability. Personal auto insurance expenditures accounted for 2.0 percent of Georgians’ median household income, compared with a 1.5 percent share nationwide. Auto insurance spending in Georgia grew at 5.6 percent annualized between 2014 and 2022, compared with 3.3 percent in the country overall.

Meanwhile, legal service providers spent over $160 million on advertising in Georgia in 2023, according to preliminary data from the American Tort Reform Association (ATRA). 

Earlier this year, a Triple-I issue brief, Legal System Abuse: State of the Risk, highlighted aspects of legal system abuse, including how law firm advertising spend for mass tort cases might play a role in increased filings nationwide. Trial attorneys and third-party litigation funders seeking more profits may use advertising to amp up recruitment for lawsuits with big payouts at the expense of policyholders. A 2023 Triple-I study, Impact of Increasing Inflation on Personal and Commercial Auto Liability Insurance, estimates that increasing inflation drove loss and DCC (defense containment costs) higher in both insurance lines – by 6.5 percent ($61 billion) of total loss and DCC for personal auto and by 19 to 24 percent ($35 to $44 billion) for commercial auto.

Triple-I’s multi-faceted awareness campaign to help educate Georgians about the mounting costs of legal system abuse in the state also includes content such as a video statement by CEO Sean Kevelighan and interviews capturing the opinions of consumers about legal system abuse.

Coverage affordability is a growing concern for many policyholders nationwide. While several factors may impact insurance premiums, unnecessary and excessive litigation can drive higher loss ratios while posing formidable challenges to prediction and mitigation. Triple-I is committed to advancing conversations with business leaders, government regulators, consumers, and other stakeholders to attack the risk crisis and chart a path forward.

We invite you to join the discussion by registering for JIF 2024. Follow our blog to learn more about trends in insurance affordability and availability across the property and casualty market.

Emerging Risks, Insurance Industry, Insurance News

Multi-Family Affordable Housing Market Challenged by Surges in Insurance Premiums

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urban apartment buildings

With ​​nearly half of all homes in the United States at risk of “severe or extreme” damage from events like flooding, high winds, and wildfire, the perfect storm of climate risk and legal system abuse creates obstacles for homeowners. It also threatens a more financially vulnerable segment of the housing market, as increased premiums and waning coverage for affordable housing providers can put millions of renters at risk of becoming rent-burdened (paying more than 30 percent of gross monthly income in gross monthly rent) or unhoused.

In June of this year, about two dozen real estate, housing, and nonprofit organizations — self-describing as a “broad coalition of housing providers and lenders” —  wrote a letter to Congress and the Biden administration urging them to address the issue of property insurance affordability. Although the coalition declared its intent to represent all stakeholders in the housing market, it called attention to special concerns of affordable housing providers and renters.

The letter referenced an October 2023 survey and report commissioned by the National Leased Housing Association (NLHA) and supported by other affordable housing organizations. The survey involved more than 400 housing providers that operate 2.7 million rental units — 1.7 million of which are federally subsidized. Findings mentioned in the letter and report about the affordable housing market include:

– Rate increases of 25 percent or more in the most recent renewal period for one in every three policies for affordable housing providers.

– Over 93 percent of housing providers said they plan to mitigate cost increases, with three most commonly cited tactics: increasing insurance deductibles (67 percent), decreasing operating expenses (64 percent), and increasing rent (58 percent).

– Respondents cited limited markets and capacity as the cause for most premium increases, followed by claims history/loss and renter population.

According to the U.S. Department of Housing and Urban Development (HUD) guidelines, affordable housing is generally defined as housing for which the occupant is paying no more than 30 percent of gross income for housing costs. These units are often regulated under various regional and nationwide programs, which typically offer some form of government subsidy to the property owners – usually either through tax credits, government-backed financing, or direct payments. Rising insurance premiums for affordable housing properties have come at a particularly challenging time for both renters and affordable housing property owners, a large share of which are non-profit organizations.

Census Data indicates that in total renters comprise around 36 percent, or about 44.2 million of the 122.8 million Census captured households. The number of rent-burdened households nationwide has hit an all-time high. The latest rental housing market figures, taken from a report issued by the Joint Center For Housing Studies Of Harvard University, counts 22.4 million rent burdened households in this category, amplifying the dire need for more affordable units. That report also reveals the proportion of “cost-burdened renters rose to 50 percent, up 3.2 percentage points from 2019.” 

Additionally, homelessness increased 12 percent in 2023. More than 650,000 people were unhoused at some point last year — the highest number recorded since data collection began in 2007. A Wall Street Journal analysis reveals the most recent counts for 2024 are already up 10 percent, putting the total number of unhoused persons on track to exceed last year’s amount.

Meanwhile, the affordable housing stock is aging and the cost of debt to acquire or build multifamily properties has risen, too. As interest rates have been high in recent years, developers must offer investors greater returns than treasury notes. The problem is complex, but the outcomes can be brutally straightforward.

Higher insurance premiums on rented properties increase costs, which, in turn, get passed on to renters. Market-rate landlords can usually raise rents to cover the increasing costs of capital and insurance premiums. However, affordable housing providers are locked into rents set by the government. These amounts are tied to regional incomes, which can be depressed by wage stagnation. Thus, renters who rely on affordable housing can experience the impact of rising premiums in the form of decreased services and lapsed maintenance (as housing providers dip into other parts of the operating budget to make up the shortfall) or a decrease in the number of units on the market as housing providers extract units or leave the market.

In July of this year, HUD convened a meeting with various stakeholders to discuss policies and opportunities to address this and related challenges while managing potential risks to the long-term viability of affordable housing. HUD has modified its insurance requirements for apartment buildings with government-backed mortgages, now allowing owners to set their deductible for wind and storm events as high as $475,000, up from $250,000. This tactic may reduce premiums but can also raise out-of-pocket costs after a storm or severe climate event. Another approach in progress is the revision of HUD’s methodology for calculating the Operating Cost Adjustment Factors (OCAF), parameters for annual percentile increases in rent, for eligible multifamily properties to better account for increasing insurance costs.

Triple-I is committed to advancing conversations with business leaders, government regulators, and other stakeholders to attack the risk crisis and chart a path forward. To join the discussion, register for JIF 2024. Follow our blog to learn more about trends in insurance affordability and availability across the property and casualty market.

Emerging Risks, Insurance Industry, Market Conditions

Prodigious growth continues for the excess and surplus market, but how long will it last?

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The Excess and Surplus (E&S) market has grown for five consecutive years by double-digit percentage rates. While expansion appears to have slowed, ample growth likely to continue if major trends persist, according to Triple-I’s latest issue brief, Excess and Surplus: State of the Risk.

As reported by S&P Global Intelligence, total premiums for 2023 reached $86.47 billion, up from $75.51 billion in 2022. The growth rate for direct premiums in 2023 climbed to 14.5 percent, down from the peak year-over-year (YoY) increase of 32.3 percent in 2021 and 20.1 percent in 2022. The share of U.S. total direct premiums written (DPW) for P/C in 2023 grew to 9.2 percent, up from 5.2 percent in 2013.

The brief summarizes how these outcomes are driven by the niche segment’s capacity to take advantage of coverage gaps in the admitted market and quickly pivot to new product development in the face of emerging or novel risks. Analysis and takeaways, based on data from US-based carriers, highlight dynamics that may support continued market expansion:

  • The rising frequency of climate disasters and catastrophes that overwhelm the admitted market
  • The increasing number and amount of outsized verdicts (awards over $10 million)
  • The sustainability of amenable regulatory frameworks
  • Outlook for the reinsurance segment

These factors can also converge to enhance or aggravate conditions.

For example, some states, such as Florida and California, are dealing with significant obstacles to P/C affordability and availability in the admitted market posed by catastrophe and climate risk while also experiencing large respective shares of outsized verdict activity. Also, 13 of the 15 largest U.S. E&S underwriters for commercial auto liability experienced a YoY increase in 2023 direct premiums written. In contrast, eight of the largest 15 underwriters of commercial auto physical damage coverage experienced a decline. Given 2023 research from the Insurance Information Institute showing how inflationary factors from legal costs amplify claim payouts for commercial auto liability, it appears that E&S is flourishing off the struggles of the admitted market.              

At the state level, the top three states based on E&S property premiums as portion of the total property market were Louisiana (22.7 percent), Florida (21.1 percent), and South Carolina (19.4  percent) in 2023. The states experiencing the highest growth rates in E&S share of property premiums were South Carolina (9.0 percent), California (8.8 percent), and Louisiana (8.3 percent).

Since the publication of Triple-I’s brief, AM Best released its 2024 Market Segment Report on U.S. Surplus Lines. One of the key updates: after factoring in numbers from regulated alien insurers and Lloyd’s syndicates, the E&S market exceeded the $100 billion premium ceiling for the first time, climbing past $115 billion. The share size in the P/C market has more than tripled, from 3.6 percent total P/C DPW in 2000 to 11.9 percent in 2023. Findings also indicate that DPW is concentrated heavily within the top 25 E&S carriers (ranked by DPW), with about 68% of the total E&S market DPW coming from this group.

The E&S market typically provides coverage across three areas:

  • Nonstandard risks: potential liabilities that have unconventional underwriting characteristics
  • Unique risks: admitted carriers don’t offer a filed policy form or rate, or there is limited loss history information available
  • Capacity risks: the customer to be insured seeks a higher level of coverage than most insurers are willing to provide

Thus, E&S carriers offer coverage for hard-to-place risks, stepping in where admitted carriers are unwilling or unable to tread. It makes sense that the policies typically come with higher premiums, which can boost DPW.

However, the value proposition for E&S policyholders hinges on the lack of coverage in the admitted market and the insurer’s financial stability – especially since state guaranty funds don’t cover E&S policies. Therefore, minimum capitalization requirements tend to higher for E&S than for admitted carriers. Ratings from A&M Best over the past several years indicate that most surplus insurers stand secure. Robust underwriting and strong reinsurance capital positions will play a role in the market’s capacity for continued expansion.

To learn more, read our issue brief and follow our blog for the latest insights.

Insurance Industry, Legal Environment

Operating from the shadows, TPLF can create problems for judges and courts.

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Hand with black sleeve holding a gavel, piles of documents

A recently published article, The Fifth Dimension: TPLF and Its Effect on the Judiciary, highlights the ways the rising specter of third-party litigation funding (TPLF) can create unnecessary challenges for the judiciary. 

Triple-I has published a great deal regarding the potential impact of TPLF on costs for insurers and policyholders. Bellino’s gaze focused on potential risks for the judiciary:

  • Increased judicial workload
  • More fraudulent claims
  • Longer litigation and slower settlements
  • Creation of potential appellate issues

And, like many insurance industry stakeholders, Lisa M. Bellino (VP Claims Judicial & Legislative Affairs for Zurich North America in Philadelphia) is fundamentally concerned about the lack of transparency surrounding TPLF’s involvement in a lawsuit.

TPLF is a growing and costly aspect of legal system abuse, a problem that Triple-I and other industry thought leaders define as policyholder or plaintiff attorney actions that unnecessarily increase the costs and time to settle insurance claims. Qualifying actions can arise, for example, when clients or attorneys draw out litigation in hopes of a larger settlement simply because TPLF investors take such a giant piece of the payout. As there is little transparency around the use of TPLF, insurers and the courts have virtually no leeway in mitigating any of this risk.

TPLF can lead to undue judicial burden and waste.

When judges are unaware of the funding arrangement, they would likely also be in the dark about potential conflicts of interest or improper claims and, therefore, be unable to mitigate these risks. However, Bellino argues that the de facto practice of secrecy can cause judicial waste even in the limited number of jurisdictions and courts that require disclosure. Judges may feel compelled to spend a significant amount of time ascertaining attorney compliance. As funding often involves parties not directly related to the case, the judiciary may need to hold additional hearings and reviews to uncover the real parties in interest. Bellino cites a case in which the real parties were not the named plaintiffs.

TPLF can be a driving factor behind lawsuit generation.

When law firms pursue class action litigation, they may engage “lead generators,” companies that help find plaintiffs for a specific tort. Advertising tactics can include traditional and social media. When prospective claimants respond to these ads, they are directed to a law firm or a call center that distributes the recruited claimants to law firms. This service comes at a steep price – in dollars and justice. As funding may often come from TPLF, Bellino describes how the profit model behind lead generation companies working with law firms can increase the risk of fraudulent claims.

The risk of bogus claims and claimants can surge with TPLF.

Funders of class action litigation have a financial incentive to drive up the number of plaintiffs. As neither the defense nor the judge is typically aware of the third party’s potential conflict of interests, judicial resources can be wasted, and justice can be delayed for legitimate claimants. Bellino cites, among other examples, a New York case to illustrate how litigation funders and attorneys may even collaborate in multi-million dollar fraud schemes.

TPLF funders may encourage drawn-out litigation and hinder settlements

Bellino cites a case highlighting how funders might control litigation and delay resolutions to maximize their returns. A publicly traded TPLF giant allegedly blocked a settlement agreement between a plaintiff and the defendants, resulting in prolonged litigation across multiple jurisdictions. The interference may have led to additional motions, hearings, and opinions, diverting judicial resources from resolving the dispute between the named parties. As a result, costs for the plaintiff, defendant, and the courts likely would’ve soared. 

Undisclosed TPLF involvement can spark appellate concerns.

Undisclosed funding agreements can also prevent parties from adequately preparing their cases and preserving appellate issues. For example, a TPLF investor may fund medical testing that leads to recruiting plaintiffs for a class action against a drug manufacturer.  If this fact wasn’t disclosed to the defendants or court, at the very least, the defendant wouldn’t have access to information needed for defense or subsequent appeals. Also, the judiciary wouldn’t be able to perform its duty to monitor red flags for potential bias or fraud. It is also possible that the interests of the plaintiff will be affected by other appellate concerns, too.

Increases in litigation and claim costs have threatened the affordability and availability of many areas of insurance coverage. TPLF involvement, like other channels for potential legal system abuse, is nearly impossible to forecast and mitigate. And despite its original intended purpose–to help plaintiffs seek justice– it can extract a disproportionate amount of value from settlements, weakening the primary purpose of a financial payout.

Overall, the shroud of secrecy around TPLF can undermine the legal system, posing threats to unbiased and fair legal outcomes. Bellino strongly advocates for mandatory disclosure of TPLF agreements at the beginning of litigation. A system-wide requirement for early transparency would allow courts and involved parties to address potential conflicts, biases, and fraud early in the process. In her words, “Disclosure may restore reality and close the door on the TPLF Twilight Zone.”

To learn more about how TPLF can impact costs for insurers and policyholders, take a look at our primer, What is third-party litigation funding and how does it affect insurance pricing and affordability? Our issue brief, Legal System Abuse: State of the Risk, can also provide more context on how TPLF fits into social inflation.  

Insurance Industry

Dynamic trends in TPLF and securities class actions increase risks for insurers

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An annual report on securities class actions from Cornerstone Research indicates the median settlement amount increased 11%, and the proportion of settlements of at least $100 million climbed to nearly two-thirds of the total settlement dollars in 2023.  

Research from Westfleet Advisors focused on third-party litigation funding (TPLF) for US commercial litigation suggests the David versus Goliath narrative surrounding the early years of the market is growing tenuous. The overall percentage of commitments allocated to Big Law continues to increase, from 28% in 2022 to 35% in 2023.  

These and other persistent upward trends in litigation, settlement, and other legal costs continue to have implications for insurers, the policyholders they serve, and, ultimately, consumer prices. 

Mega settlements and institutional investors as lead plaintiffs are increasing. 

Cornerstone reports that despite a more than 20% decline in the number of settlements, total settlement dollars remained approximately the same, standing at little over half of the 2016 peak.  

There were 83 securities class action settlements in 2023, with an approximate total value of $3.9 billion, versus 105 settlements in 2022, totaling $4.0 billion. Other highlights in the 2023 data: 

  • The median settlement amount of $15 million is the highest since 2010.    
  • The nine “mega” settlements in 2023–the highest annual frequency since 2016–ranged from $102.5 million to $1 billion. 
  • All of the mega settlements included an institutional investor as the lead plaintiff.  
  • Only 6% of cases settled for less than $2 million, the lowest percentage since 2013.  

Analysis indicates that settlements were also higher in cases involving certain factors: “accounting allegations, a corresponding SEC action, criminal charges, an accompanying derivative action, an institutional investor lead plaintiff, or securities.” Further, an increasing number of cases that settle at later stages involved an institutional lead plaintiff, continuing the trend from 2022.  

Results also suggest that drawing out cases can amplify other factors, such as total assets and median “simplified tiered damages,” a Cornerstone term that refers to the model used to estimate settlement amounts. For both of these categories in 2023, median amounts for cases after class certification rulings were twice that of cases that settled before these rulings were made. However, in the five-year period from 2019 through 2023, over 90% of cases were settled before filing a motion for summary judgment.  

Accompanying derivative actions are down. 

Whereas a securities class action is filed on behalf of shareholders, a shareholder derivative action is typically brought by a shareholder on behalf of and (arguably) for the benefit of the company (usually against the company’s directors and/or officers). Derivative actions typically only happen in parallel with class action lawsuits, and the majority don’t result in monetary settlements (except for attorney fees). Instead, the plaintiff wins tend to center around measures for reforming corporate governance or operational controls.  

Other research from Cornerstone shows the probability of a monetary settlement for these lawsuits increases when the associated class action settlement is rather large. Also, historically, securities actions with accompanying derivative litigation tend to settle for higher amounts than those that don’t carry parallel derivative claims. Thus, Cornerstone also tracks the percentage of cases involving accompanying derivative actions. In 2023, the portion was 40%, the lowest since 2011.  

New capital commitments decreased for commercial litigation TPLF, but claim monetization increased. 

With a reported 39 active funders, 353 new deals, and $15.2 billion AUM, commercial litigation (versus consumer litigation) receives the majority of third-party litigation funding (TPLF). Investors target intellectual property, arbitration, business torts, contract breaches, and, of course, class action suits. These TPLF deals, also referred to as transactions or commitments, are arranged between funders and corporate litigants or law firms. Westfleet Advisors’ most recent market report on TPLF is the fifth edition, and it covers transactions from July 1, 2022, to June 30, 2023. Some noted exceptions and data adjustments are described in the report. 

The report reveals that despite some funders leaving the market and a 14% decrease in new capital commitments, key data points remained close to amounts tracked for last year. For example, attorneys still make the majority of these deals with a 64% share of the agreements, in contrast to only 36% for clients. Patent litigation is still reaping the largest amount of funds for a single legal area, about 19% of new commitments. Figures for type of deal and average deal size also remain fairly stable.  

However, some annual numbers have increased, highlighting an ongoing strategic shift in TPLF use. For the third year in a row, the report noted a rise in capital allocated for the monetization of claims, with 21% (versus 14% in 2022) going to new commitments. The biggest law firms (ranked in the AmLaw 200 according to gross revenue) have increased their use of TPLF, snagging 35% of the new deals. Arguably, both trends weaken the “David vs Goliath” narrative, and commercial TPLF may evolve to be less about helping scrappy firms and plaintiffs and more about extracting profits from litigation.  

Drawn out litigation and more outsized settlements may have implications for insurance coverage. 

Triple-I and other industry thought leaders define Legal System Abuse as policyholder or plaintiff attorney actions that unnecessarily increase the costs and time to settle insurance claims. Qualifying actions can arise from attorneys or clients drawing out litigation to reap a larger settlement simply because TPLF investors take such a giant piece of the settlement pie. As there is little transparency around the use of TPLF, insurers and courts have virtually no leeway in mitigating any of this risk. 

Thus, as with other channels for potential legal system abuse, TPLF use is nearly impossible to forecast and mitigate. Increases in litigation and claim costs have threatened the affordability and availability of many other areas of insurance coverage. TPLF can impact product lines such as Directors and Officers (D&O) in commercial litigation via securities class actions. TPLF can produce a financially counterproductive effect for plaintiffs by extracting a disproportionate amount of value from settlements, weakening the primary purpose of a financial payout: to enable the claimant to restore losses.  

Nonetheless, insurers seek to carefully manage these risks through underwriting practices, policy exclusions, and setting appropriate reserves to mitigate the financial impact. Meanwhile, Triple-I and various other stakeholders have called for a regulatory rein-in on TPLF to increase transparency.  To keep abreast of the conversation, follow our blog and check out our regularly updated knowledge hub for Legal System Abuse. 

Careers and Employment, ESG, Insurance Industry, Webinars

The Institutes Releases New Webinar, Intersectionality in Research: Navigating Diversity

Industry stakeholders looking to keep pace with market challenges may find diversity in research the key to long-term success and resilience. A multitude of different perspectives, ideas, and solutions can enhance innovation and strategic outcomes. Join The Institutes for a webinar panel discussion of strategies for creating inclusive research spaces, addressing biases, and fostering a diverse and equitable research community, specifically in insurance.

 The panel includes:

  • Julia Brinson, Vice President, Insurance Research, Conning
  • Dale Porfilio, Chief Insurance Officer for the Insurance Information Institute (Triple-I) and President of the Insurance Research Council (IRC).
  • Roosevelt Mosley, Jr. Principal & Consulting Actuary, Pinnacle Actuarial Resources, Inc.

Amy Cole-Smith, currently the Director for Diversity at The Institutes, moderated the discussion for this on-demand event.

Intersectionality hinges on two core fundamentals: all oppression is linked, and people can be impacted by multiple sources of interlocking oppression that converge to create a new and multi-layered struggle.

For example, intersectionality recognizes that a Black woman experiences racial and gender discrimination in ways that might be entirely different from the ways Black men face racism or White women face sexism. These differences stem from the principle that for Black women, the identities of “woman” and “Black” do not exist independently.

Intersectional research explores how gender, race, ethnicity, and other identity markers impact the data and analysis to drive valuable insights. But success requires discovering effective ways to generate those insights for the benefit of all in the customer base, not just some. Without the inclusion of intersectionality in research, disparities may continue, and market needs–along with accompanying opportunities–can go unmet.

According to Julia Brinson, applying intersectional research begins with better recruiting diverse talent. Building on her response, Roosevelt Mosley, Jr added, “Once that talent gets into our industry, we need to focus on developing and growing that talent into all areas of an organization.” 

In a demonstration of how inclusion can play out around the research table, the panelists shared how their experiences influence how they approach research. Brinson, who holds a Master of Law in Insurance Law (among many other credentials), spoke about how she views insurance research problems with an eye for diversity using a “legal lens to understand the claims aspect” and how premiums may be affected.

The panelists also recommended how other researchers can effectively incorporate intersectionality into their work.

Dale Porfilio commented on how “diversity in thought and experience” can help address the industry’s challenges in this area, including “making sure products are affordable…and available to cover a broad range of risk…and integrating that with the social construct of fairness.”

However, Moseley warned that a one-size-fits-all approach to any particular category, such as race, gender, etc., won’t be sufficient to meet the requirements of intersectionality in research.

“There is a collective experience of groups, but within that collective experience, there is also significant diversity,” he said.

The common sentiment revolved around the need for “courageous conversations” and there was plenty of advice on how institutions foster an environment that promotes communication and collaboration among researchers of diverse backgrounds.

The entire webinar is available now on demand. Register here: Intersectionality in Research: Navigating Diversity (on24.com)

Business Insurance, Business Risk, Cyber Risk, Insurance Industry

The latest reports from FBI and ITRC reveal that cyber incidents in 2023 broke records for financial loss and frequency.

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Cyber incidents reported to the FBI’s Internet Crime Complaint Center (IC3) in 2023 totaled 880,418. These attacks caused a five-year high of $12.5 billion in losses, with investment scams making up $4.57 billion, the most for any cybercrime tracked. Phishing, with 298,878 incidents tracked (down from its five-year high in 2021 of 323,972), continues to reign as the top reported method of cybercrime.

The 2023 Data Breach Report from Identity Theft Resource Center (ITRC) reveals that last year delivered a bumper crop of cybersecurity failures – 3,205 publicly reported data compromises, impacting an estimated 353,027,892 individuals. Meanwhile, supply-chain attacks increased, and weak notification frameworks further increased cyber risk for all stakeholders.

Email compromise, cryptocurrency fraud, and ransomware increase

In addition to record-high financial losses from cybercrimes overall in 2023, the report revealed trends across crime methodology and targets. Investment fraud was the costliest of all incidents tracked. Within this category, cryptocurrency involvement rose 53 percent, from $2.57 billion in 2022 to $3.94 billion. Victims 30 to 49 years old were the most likely group to report losses.

Ransomware rose 18%, and about 42 percent of 2,825 reported ransomware attacks targeted 14 of 16 critical infrastructure sectors. The top five targeted sectors made up nearly three-quarters of the critical infrastructure complaints: healthcare and public health (249), critical manufacturing (218), government facilities (156), information technology (137), and financial services (122).

Adjusted losses for 21,489 business email compromise (BEC) incidents climbed to over 2.9 billion. The IC3 noted a shift from dominant methods in the past (i.e., fraudulent requests for W-2 information, large gift cards, etc.). Now scammers are “increasingly using custodial accounts held at financial institutions for cryptocurrency exchanges or third-party payment processors, or having targeted individuals send funds directly to these platforms where funds are quickly dispersed.”

The report disclosed a $50,000,000 loss from a BEC incident In March of 2023, targeting “a critical infrastructure construction project entity located in the New York, New York area.”

The IC3 says it receives about 2,412 complaints daily, but many more cybercrimes likely go unreported for various reasons. Complaints tracked over the past five years have impacted at least 8 million people. The FBI’s recommendations for solutions to minimize risk and impact include:

  • Ramping up cybersecurity protocols such as two-factor authentication.
  • More robust payment verification practices.
  • Avoiding engagement with unsolicited texts and emails.

The scale of 2023 data compromises is “overwhelming.”

According to the ITRC, the surge in breaches during 2023 is 72 percent over the previous record set in 2021 and 78 percent over 2022. To add more perspective, the ITRC notes that “the increase from the past record high to 2023’s number is larger than the annual number of events from 2005 until 2020, except for 2017.”

Meanwhile, as the report highlights, two other outsized trends converged: increasing complexity and risk. The number of organizations and victims impacted by supply-chain attacks skyrocketed. The notification framework conspicuously weakened, too. Since some laws assign liability for notification to organizations owning the leaked data, the notification chain would stop there, leaving downstream stakeholders unaware. For example, a software company servicing nonprofits might duly notify its direct B2B customers but not the individuals served by the nonprofit organization.

The ITRC has been reviewing publicly reported data breaches since 2005, and it now has a database of more than “18.8K tracked data compromises, impacting over 12B victims and exposing 19.8B records.” This ninth report forecasts a bleak outlook for the coming year. Specifically, “an unprecedented number of data breaches in 2023 by financially motivated and Nation/State threat actors will drive new levels of identity crimes in 2024, especially impersonation and synthetic identity fraud.”

The faster a breach is identified and reported, the faster all potentially affected parties can take measures to minimize impact. However, reporting regulations can vary across jurisdictions and businesses, and their supply chain partners may hesitate to disclose breaches for fear of impacting revenue and brand reputation. ITRC outlines its forthcoming uniform breach notification service designed to enable due diligence, emphasizing swift action and coordination with business and regulatory authorities. The service will be offered for a fee to companies looking to better handle cyber risk in their supply chains and regulatory requirements. Other recommendations include the increased use of digital credentials, facial identification/comparison technology, and enhancing vendor due diligence. 

The increased risk and rising financial losses from cyber risk likely drive growth for the cyber insurance market, which tripled in volume in the last five years. Gross direct written premiums climbed to USD 13 billion in 2022. For a quick rundown of how cyber insurance coverage supports risk management for organizations of all sizes, take a look at our cyber risk knowledge hub. To learn more about the fastest-growing segment of property/casualty, look at our recent Issues Brief.

Careers and Employment, Insurance Industry

Women are fueling industry prosperity but left out of the C-Suite

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The insurance industry is on track for continued growth, with women playing a huge part, but gender equity at the top remains a long way off.  Bureau of Labor Statistics (BLS) data shows the talent pipeline isn’t an issue, as women account for 59.4 percent of the insurance workforce. They comprise 80.1 percent of workers serving as claims and policy processing clerks, 54.9 percent in sales roles, and 56.9 percent of underwriters. Yet, only about 22 percent (less than 1 in 4) of workers in the C-Suite are women.

Despite the setbacks of the early pandemic years, in which women shouldered the brunt of related workforce losses, women have made up roughly 60 percent of the insurance workforce each year since 2012, exceeding their share of total employment in the U.S. (46.9 percent).

Private sector research adds more details to this stark picture. A Marsh study conducted in 2022 revealed that “25 out of 27 (92.5 percent) of the largest insurance companies were led by men.” Similarly, a McKinsey study showed, “white women make up 45 percent of entry-level roles yet…fewer than one in five direct reports to the CEO are women.” Gender disparities also appear to increase across race and ethnicity.

A recent study from Liberty Mutual and Safeco Insurance shows that the number of women owners or principals in insurance agencies decreased from 31 percent to 26 percent between 2022 and 2023. In contrast, women comprise 75 percent of customer-facing staff in those organizations.

S&P Global Research analysis findings suggest “women could reach parity in senior leadership positions between 2030 and 2037, among companies in the Russell 3000.” Whether that might play out sooner or later for insurance isn’t clear. The August 2023 report also reveals that the “majority of progress towards gender parity is coming from women taking seats on company boards.” Still, C-suite leadership across all industries may not show full gender parity until the 2050s, and “the highest levels in CEO and CFO positions could take even longer.”

Gender parity can offer solutions for a healthy financial future

Meanwhile, the industry expects to face massive attrition as thousands of workers (along with their leadership skills and knowledge) eventually exit the workforce in the coming years. Automation and artificial intelligence/machine learning (AI/ML) may eliminate the need for some roles. Still, insurers will undoubtedly need to maintain an ecosystem of efficiency and innovation to remain profitable. Increased implementation of data-driven processes and decision-making brings new ethical implications and regulatory responsibilities.

Organizational diversity is commonly defined as people from a variety of backgrounds and perspectives working together to solve business problems. Strategic long-term success requires identifying, developing, and promoting diverse talent at all levels. However, a lack of diversity at the C-suite level can undermine the most valiant recruitment efforts in other parts of the organization. Today’s driven and career-focused candidates are wary of glass ceilings and may want evidence that inclusion and equity come from the top.

Research has indicated women in leadership can positively impact the organizations they run. After a series of four studies over several years, findings from McKinsey indicate that “leadership diversity is also convincingly associated with holistic growth ambitions, greater social impact, and more satisfied workforces.” Further, the most recent study also notes the “business case for gender diversity on executive teams has more than doubled over the past decade.” Other research indicates that, among U.S. property-casualty insurance companies, female CEOs are associated with “lower insurer insolvency propensity, higher z-score, and lower standard deviation of return on assets.”

In the era of the nation’s first female vice-president, ultimately, corporate boards might find that reflecting the market demographics the savviest and most compelling of all reasons to diversify senior leadership. Together, U.S. millennials and the oldest Gen Zers (already taking on adult responsibilities) command nearly $3 trillion in spending power each year. Both generations have duly prepared themselves to advance in the workforce, becoming more educated than previous generations. And they will no doubt grab an opportunity where they can find it.

Insurance Industry

Will the D&O market conditions remain favorable? Allianz report says 2024 will bring its share of challenges.

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Several global challenges pose a significant threat to maintaining soft market conditions for Directors and Officers (D&O) liability coverage, according to the most recent report on the sector by Allianz.

A list of salient risks and trends to monitor during 2024 spans various areas, including:

  • Macroeconomics,
  • Geopolitical,
  • Generative AI (GenAI),
  • Environmental, Social, and Governance (ESG), and
  • Class action filings and third-party litigation funding.

According to the latest edition of Directors and Officers Insurance Insights, any of these factors could change the outlook for a competitive market this year.

The D&O market may have mostly avoided the bumps and scrapes faced by other lines of coverage in 2023. With double-digit decreases in insurance pricing worldwide, new market entrants, favorable loss ratios, and a reduction in the Initial Public Offerings (IPOs), the environment contrasts sharply with the early pandemic years of 2020 and 2021. Over 90 percent of D&O underwriters (in a separate study) expected pricing to decrease or stay the same for mature public companies in 2024.

However, Allianz (in conjunction with Munich Re) predicted business insolvencies may rise by 10 percent in 2024. In today’s dynamic environment, organizations — from startups to multi-national behemoths — may rely on D&O policies to manage liabilities arising from executive leadership decisions. Having coverage in place signifies attention to the bottom line and removes a barrier to recruiting the best leadership talent.

The 2023 economy delivered many hurdles, particularly in rising costs and interest rates, rendering the effective management of capital expenditure[DJ1]   and debt a cryptic challenge for organizations and their executives. Add to that mix insolvency activity that is starting to look similar to what followed the 2009 global financial crisis. The “likelihood of a recession in the US and UK continues to rise in 2024,” the report says.

Citing Fitch’s analysis, the report warns of threats to future profitability from “weaker pricing and the potential claims volatility from a myriad of sources.” Still, Allianz suggests that reserves from most recent years may safeguard “near-term underwriting results.”

The early 2023 banking crisis is expected to leave a mark on the D&O segment as each of the bank failures and near failures – widely attributed to substandard banking practices – resulted in a securities fraud claim. The forecasted multi-billion dollar losses in market cap and final disclosure pose an enormous threat to insurance towers, the layers of coverage spreading risk across multiple insurers and coverage levels to diversify overall risk exposure. Consequently, the report advises closely monitoring banks with large commercial property portfolios and how the Treasury plans to rebuild its cash balance from the lowest level in seven years.

The report discusses how technology advancements offer a mixed bag for the D&O segment, creating advantages for organizational efficiency and productivity but also new risks surrounding cybersecurity, regulatory requirements, transparency and governance, litigation, and investor expectations. Cybersecurity, in general, has been on the radar for several years now. However Generative AI (GenAI), a relatively new technology in the risk management spotlight, could enable more threats for cyber risk management.

Separately, Gen AI has already sparked intellectual property and privacy claims. Future claims could emerge in securities, breach of fiduciary, shareholder, and derivative lawsuits. The report states that managing risks posed by Gen AI requires the cultivation of expertise-driven best practices and protocols.

Another 21st-century issue, Environmental, Social, and Governance (ESG), appears to have permanently taken root as a factor in the D&O risk landscape. Despite the ongoing debate over its value, definition, and measurement, the ESG framework encompasses a growing list of conundrums faced by directors and officers. Organizations don’t operate in a vacuum but in communities where human rights, climate risk, and other ESG concerns can infiltrate business-as-usual operations. Tactics that avoid or incur costly regulatory sanctions can also spark lawsuits from private stakeholders.

“In a world that is becoming increasingly polarized politically and socially, the very need for directors to evaluate and address the impact of various ESG factors on corporate value creates that claims will be made…on either or both sides of any given issue,” the report states.

The specter of increased litigation costs persists as federal securities class actions climbed to 201 by early December in 2023 (up from 197 in 2022) and total settlement dollars outpaced historical levels. Figures for only the first half of 2023 exceeded the total for 2022, climbing to a ten-year record high.

The D&O segment has always been dynamic, and claims can arise from various sources, including shareholders, employees, regulatory agencies, competitors, and customers. Therefore, the product continues to play a vital role in mitigating the risks associated with corporate governance and protecting the interests of directors, officers, and the companies they serve. Overall, the market’s future will remain competitive as established insurers move to address underwriting challenges, but it’s not likely that the 2024 environment will be hospitable to new insurers lacking a substantial portfolio.