Insurance is essential for individuals, businesses, and communities to recover quickly from natural catastrophes – but perils have evolved to a point at which risk transfer, though necessary, isn’t enough to ensure resilience.
Triple-I CEO Sean Kevelighan said during a that better insured communities recover more quickly but “the long-term resilience of both the communities impacted by natural catastrophes and of the industry itself depend on preparedness and improved risk mitigation.” He was one of three panelists participating in the webinar.
“Something’s Got to Give”
Insured U.S. natural catastrophe losses totaled $67 billion in 2020 after an Atlantic hurricane season which included 30 named storms, record-setting wildfires in California, Colorado, and the Pacific Northwest, and a severe derecho in Iowa. This year’s hurricane season looks to be more severe; the Bootleg wildfire in Oregon – so large and intense it has begun to create its own weather and is affecting air quality as far east as New York City – isn’t expected to be fully contained until late November; and these disasters are taking place on the heels of devastating winter storms in the first quarter.
As Kevelighan put it in his panel remarks, pointing to a 700 percent increase in insurer loss costs since the 1980s, “Something’s got to give.”
“As the country’s financial first responders,” he said, “insurers are not just responsible for providing relief to the communities affected by natural disasters, but also planning for potential catastrophes to come.”
One of the ways insurers do this, he said, is by building the industry’s cumulative policyholders’ surplus—the amount of money remaining after insurers’ collective liabilities are subtracted from their assets. At year-end 2020, the U.S. policyholders’ surplus stood at a record-high $914.3 billion.
Mitigate and educate
The role of the insurance industry has grown beyond merely taking on risks to educating the public, regulators, and corporate decision makers on the changing nature of risk and driving a resilience mindset characterized by a focus on pre-emptive mitigation and rapid recovery. Triple-I and a host of other insurance industry organizations have played a key role in promoting public-private partnerships and using advanced data and analytics to understand and address hazards in advance.
For example, Triple-I’s online Resilience Accelerator provides access to data and risk maps that empowers the public to assess and prepare for risks specific to their own communities.
Second post in a serieson social inflation and litigation funding
Litigation funding – in which third parties assume all or part of the cost of a lawsuit exchange for an agreed-upon percentage of the settlement – is often cited as contributing to social inflation. But, like so much else associated with social inflation, it’s unclear how widespread the practice is.
With historical roots in Australia and the United Kingdom, funding of lawsuits by investors has taken hold in the United States in recent years. On the positive side, it can let plaintiffs employ experts to develop effective strategies – options once only available to large corporate defendants.
But it also can contribute to cases making it to court based more on investor expectations than on plaintiffs’ best interests.
Erosion of common-law prohibitions
Litigation finance was once widely prohibited. The relevant legal doctrine – called “champerty” or “maintenance” – originated in France and arrived in the United States by way of British common law. The original purpose of champerty prohibitions – according to an analysis by Steptoe, an international law firm – was to prevent financial speculation in lawsuits, and it was rooted in a general mistrust of litigation and money lending.
There’s an irony here, in that a major societal force driving social inflation today – distrust of corporations and litigation – once motivated the prohibition of a practice now widely associated with the phenomenon.
These bans have been eroded in recent decades, leading to increases in litigation funding.
“If you are trying to understand how we got here, I would say start in the 1990s,” says Victoria Shannon Sahani, a professor of law at the Arizona State University Sandra Day O’Connor College of Law. “The United States isn’t really a big player on the scene yet, but you’ve got Australia and the United Kingdom independently making moves in their legislatures that paved the way for litigation funding to become more prevalent.”
Between 1992 and 2006, Sahani says, “It was sort of the Wild West of Australian law in the sense that if you engaged in litigation funding, you always ran the risk that your agreement might be challenged.”
In 2006, the High Court of Australia provided clarity, saying litigation funding was permitted in jurisdictions that had abolished maintenance and champerty as crimes and torts. It was even acceptable for a funder to influence key case decisions.
The practice took time to gain traction in the United States because champerty prohibitions are left to states. Some have abandoned their anti-champerty laws over the past two decades. Some, like New York, have adopted “safe harbors” that exempt transactions above a certain dollar amount from the reach of the champerty laws.
“Given the stakes involve in many cases, it will be interesting to see whether litigation funders refrain from direct involvement.”
– David Corum, vice president, Insurance Research Council
Uncertainty as to market size
There is no consensus as to how much investors spend on U.S. lawsuits each year, according to Bloomberg law, “but it is not $85 billion, a number recently put forward as the ‘addressable market’ for litigation finance by a publicly traded litigation financier.”
That’s because the industry spent only about 2.7% of $85 billion during a 12-month span that started in mid-2018, according to a Westfleet Advisors survey.
“Does that low penetration rate portend explosive growth ahead?” Bloomberg Law asks. “Or is it an indication that litigation finance is a niche product most plaintiffs and lawyers find unnecessary?”
A key determinant of growth may be the willingness of funders to remain uninvolved in managing cases, said David Corum, vice president with the Insurance Research Council: “Given the stakes involve in many cases, it will be interesting to see whether litigation funders refrain from direct involvement.”
Benefit, bane, or both?
While funders tout the “David versus Goliath” aspect of helping small plaintiffs against corporations, opponents worry about introducing profit into a process that is supposed to aim at a just outcome. A settlement may be rejected because of pressure exerted by profit-seeking funders, and a plaintiff may walk away with nothing if the trial goes against them, opponents say.
Laura Lazarczyk, executive vice president and chief legal officer for Zurich North America, called litigation funding “abusive” and said harm “will be largely borne by insurers in defense costs and indemnity payments and by policyholders in uncovered losses and higher premiums.”
Critics also decry a lack of transparency. While the U.S. District Court for New Jersey held that third-party funding must be disclosed, attempts to pass federal disclosure legislation have been unsuccessful.
“It’s a multibillion industry with no regulation and no requirements for transparency,” said Page C. Faulk, senior vice president of legal reform initiatives at the U.S. Chamber of Commerce. “It is essentially turning our U.S. courtrooms into casinos, which is why the chamber is calling for disclosure.”
Such concerns led the American Bar Association last year to approve best practices for firms engaging in litigation funding. The resolution is silent on disclosure, but it urges lawyers to be prepared for scrutiny. It also cautions them against giving funders advice about a case’s merits, warning that this could raise concerns about the waiver of attorney-client privilege and expose lawyers to claims that they have an obligation to update this guidance as the litigation develops.
It has been said the best way to eat an elephant is “one bite at a time.” Social inflation is an elephantine topic, so we’re launching a series of blog posts dedicated to each piece of it in turn, starting with litigation funding.
“Social inflation” refers to rising litigation costs and their impact on insurers’ claim payouts, loss ratios and, ultimately, how much policyholders pay for coverage. It’s an important issue to understand because – while the tactics associated with it typically affect businesses perceived as having “deep pockets” – social inflation has implications for individuals and for businesses of all sizes.
The insurance lines most affected are commercial auto, professional liability, product liability, and directors and officers liability. There also is evidence that private-passenger car insurance is beginning to be affected. As increased litigation costs drive up premiums, those increases tend to be passed along to consumers and can stifle investment in innovation that could create jobs and otherwise benefit the economy.
Much of what is discussed and published on the topic has been more anecdotal than data based. Reliably quantifying social inflation for rating and reserving purposes is hard because it’s just one of many factors pressuring pricing. We’ve found that the most meaningful way to think about social inflation and its components is to compare their impact on claims losses over time with growth in inflation measures like the Consumer Price Index (CPI).
Litigation Funding
It’s been said that the best way to eat an elephant is “one bite at a time.” Because of the diversity and complexity of social inflation’s causes and effects, we’re launching a series of blog posts dedicated to each one in turn. The first set of posts will look closely at litigation funding: the practice of third parties financing lawsuits in exchange for a share of any funds the plaintiffs might receive.
Litigation funding was once widely prohibited, but as bans have been eroded in recent decades, the practice has grown, spread, and become a contributor to social inflation.
Litigation funding seemed a good place to begin this series because it’s a distinct legal strategy with a clear history that doesn’t involve a lot of the sociological subtleties inherent in other aspects of social inflation. We’ll look the emergence of the practice, how it came to the United States from abroad, and track its evolution with that of social inflation. We’ll also discuss the current state of litigation finance, along with ethical concerns that have been raised around it within the legal community.
This series will be led by IRC Vice President David Corum with support from our partners at The Institutes and input from our members, as well as experts beyond the insurance industry. As befits any discussion of a complex topic, we look forward to your reactions and insights.
Natural disasters create opportunities for unethical contractors, and consumers need to be on the alert.
Post-disaster repair scams typically start when a contractor makes an unsolicited visit to a homeowner and pressures the homeowner to pay the contractor their insurance claim money – then disappear without doing the work.
Before hiring any contractor, consumers affected by a natural disaster should call their insurer. There’s no need to rush into an agreement. Homeowners should inspect all work and make sure they are satisfied before paying. Most contractors will require a reasonable down payment, but no payments should be made until a written contract is in place.
The NICB offers these tips to homeowners before hiring a contractor:
Be wary of anyone knocking on your door offering unsolicited repairs to your home.
Be suspicious of any contractor who rushes you or says the government endorses them.
Shop around for a contractor by getting recommendations from people you trust.
Get three written estimates for the work and compare bids.
Check a contractor’s credentials with the Better Business Bureau.
Always ask for a written contract that clearly states everything the contractor will do.
Never sign a contract with blank spaces because it could be altered afterward.
Never pay for work up front and avoid paying with cash; use either a check or credit card.
The NICB Post-Disaster Contractor Search Checklistexplains the contractor hiring process step by step. Anyone with information concerning insurance fraud or vehicle theft can report it anonymously by calling toll-free 800-TEL-NICB (800-835-6422) or submitting a form to the NICB.
“Acting as communities’ financial first responders, insurers rebuild damaged homes, cars, and lives after a natural disaster,” said Triple-I CEO Sean Kevelighan. “The Insurance Information Institute is proud to join forces with the NICB to educate consumers and communities about how to best prepare and recover economically.”
“Victims of disasters are under tremendous stress as they are often pulled from their homes, fight heavy traffic attempting to get to safety, all while leaving their home and belongings behind,” said NICB President and CEO David Glawe. “When they go home, they are exhausted and strained, a time when they are most susceptible to these fraudulent schemes.”
Among the many things we’ve missed since the start of the pandemic, travel has been one of the most notable. Whether for business, to visit distant family members, or just get away from our now-too-familiar surroundings, many of us have been keenly anticipating a return to air travel.
Flying is among the safest activities people can engage in (see infographic). But new concerns are being raised about risks emerging in a post-COVID-19 world.
The risks highlighted in a recent report from Allianz Global Corporate & Specialty (AGCS) include “rusty” pilots, “air rage”, new aircraft, and even insect infestations.
The industry is slowly rebounding, and AGCS notes that the airline teams have stepped up to ensure that air travel remained safe, despite layoffs, financial struggles, and the pressures attending an overnight shift to remote working.
“But as more aircraft return to the skies,” the report says, “there has been much discussion about the hazards that may arise from such an unprecedented period, as well as some of the changes the sector will see.”
Earlier this year it was reported that dozens of pilots had notified the Aviation Safety Reporting System about making mistakes after climbing back into the cockpit. Operated by NASA, the Federal Aviation Administration (FAA) watchdog system enables pilots and crew members to anonymously report mechanical glitches and human errors.
“Many of the pilots cited ‘rustiness’ as a reason for the incidents after returning to the skies following months of lockdown,” AGCS reports. “While there have been no reported incidents of out‑of‑practice pilots causing accidents injuring passengers, mistakes reported included: forgetting to disengage the parking brake on takeoff, taking three attempts to land the plane on a windy day, choosing the wrong runway, and forgetting to turn on the anti‑icing mechanism that prevents the altitude and airspeed sensors from freezing.”
Condition of aircraft
At the peak of the first wave of the crisis, airlines parked around two thirds of the total global fleet. More than a year later, many are still mothballed.
“This unprecedented situation has resulted in a host of new challenges,” AGCS writes. “Loss exposures do not just disappear when airplanes are parked.”
Rather, the risks and their costs change. AGCS cites fears of damage among grounded aircraft during thunderstorms in Texas that pelted the region with golf ball‑sized hail.
Aircraft are large and tricky to maneuver on the ground, and ground incidents can result in costly claims. When operators transferred fleets from the runways to storage facilities at the start of the pandemic there were a number of collisions. It would not be surprising, therefore, to see more such incidents as planes are moved in preparation for reuse.
The European Union Aviation Safety Agency has reported “an alarming trend…of unreliable speed and altitude indications” related to accumulations of foreign objects, such as insect nests in areas of aircraft that provide flight-critical air data information.
“This has led to a number of rejected take-off and in-flight turn back events,” the agency reports.
On the other hand, as many airlines have retired larger aircraft earlier than planned due to COVID-19, there will be many newer planes on the runways and in the air, which presents its own challenges from an insurance coverage perspective. As we’ve written previously, more modern planes are more expensive to repair or replace when there is an incident, leading to more expensive claims.
Air rage on the rise
In May 2021, an attendant on a Southwest Airlines flight attendant had two teeth knocked out after an altercation with a passenger over wearing a mask – the latest in a spate of highly publicized incidents that moved the FAA to issue a warning about a spike in unruly or dangerous behavior. More recently, an American Airlines flight to the Bahamas was canceled when some among a group of high school students refused to wear masks.
In a typical year in the United States, there tend to be no more than 150 reports of serious onboard disruption, the AGCS report says – but by June 2021 that number had already reached about 3,000, including about 2,300 involving passengers who refused to comply with the federal mandate to wear a mask while traveling.
Few COVID-19 claims
The aviation industry has seen few claims directly related to the pandemic to date, AGCS says, also noting a decline in slip-and-fall and lost-baggage claims at airports because of the reduced number of passengers during the pandemic. Such claims are expected to return to more typical levels as people resume traveling, and insurers will need to be mindful of new hazards that could affect claims experience.
The insurer for the Champlain Towers South condo association has said it will make an up-front payment to resolve damage claims related to the 12-story beachfront property in the Miami suburb of Surfside, Fla., that collapsed on June 24, 2021.
“We want to make it known that James River Insurance Company has made the decision to voluntarily tender its entire limit from the enclosed policy towards attempting to resolve all the claims in this matter,” the insurer’s attorney wrote to the judge handling a class-action lawsuit seeking millions of dollars in damages from the association.
Since the collapse last week, four residents or their families have filed lawsuits against the association. Many more suits are expected in the coming months, and litigation could take years as investigators work to determine what caused the collapse. The first court hearing was held yesterday, and a Miami-Dade Circuit judge acknowledged that the building’s $48 million in total insurance coverage likely won’t be enough.
In all, the court heard, the condo association’s master policy has $30 million in property coverage and $18 million in liability coverage. The condo association has agreed to hand over financial decision making to a court-appointed “receiver.”
Seeking survivors as storm nears
With investigators still working to find and rescue survivors and Hurricane Elsa – the first of the 2021 Atlantic hurricane season and earliest “E-named” storm on record – heading toward Florida, the situation remains fluid. This week, dozens of units at a Central Florida condominium complex near Disney World were deemed unsafe after an inspection found the walkways leading to the units were at risk of collapsing, according to an Osceola County spokesperson. Residents were advised to enter the buildings containing the units at their own risk, the spokesperson said, adding that county staff were offering residents assistance with temporary housing.
Increased attention to the condition of older high-rise buildings in South Florida and across the U.S. in the wake of the Champlain Towers collapse could lead to a rise in claims for loss-of-use coverage. In addition, many businesses in the vicinity of the collapse have been made inaccessible during the rescue operation, which could lead to business interruption claims.
Spotlight on building codes
Furthermore, this event could lead to a review of building codes and inspection practices nationwide. South Florida’s building codes are among the nation’s strongest – designed to keep residents safe from hurricanes. The state implemented mandatory codes after Category 5 Hurricane Andrew ripped homes from their foundations and left 65 dead in Homestead in 1992, and some counties – particularly in South Florida – have added more stringent requirements.
But after last week’s collapse, IBHS chief engineer Anne Cope said, “This is a moment like Katrina and Andrew, where we are going to learn something and make changes.”
Many of the region’s buildings – including Champlain Towers South – were built before 1992 as part of a South Florida condo boom. Those buildings are subject to codes that were in place at the time of their construction, and are only required to undergo local county inspections every 40 years – such as the 2018 review of the Surfside condo in which an engineer raised red flags that the building was beginning to address but didn’t warn of imminent disaster.
A FEMA study last year said implementation of modern building codes could save states and localities billions of dollars.
By Loretta Worters, Vice President, Media Relations, Triple-I
Independence Day is associated with fireworks displays, barbeques, and poolside parties, yet even summer fun carries risks.
Here are four summertime liability risks you should be aware of and recommendations on what you can do to protect yourself:
FIREWORKS: Fireworks may be a Fourth of July tradition, but they can also cause either injuries or fires. More than one of every four (28 percent) fireworks-caused fires nationwide each year occur on the Fourth of July, according to the National Fire Protection Association (NFPA.) In recognition of Fireworks Safety Awareness Week (June 28-July 4), the Triple-I encourages everyone to follow federal fireworks laws and local fireworks laws.
GRILLS: About four out of five (79 percent) grilling fires involve gas grills, according to the U.S. Fire Administration (USFA). Patios, terraces, and screened-in porches are the leading home locations for grill fires, the USFA has found. The NFPA reports an average of 8,900 home fires are started by grills each year, with numbers peaking during the month of July. Grill-related fires can damage your house, outdoor possessions and structures and cause injuries to guests. The latter could result in a lawsuit.
POOLS: Drowning is the leading cause of unintentional death among children aged one to four years old and, between 2016 and 2018, 83 percent of these tragedies occurred at residential pools, according to the U.S. Consumer Product Safety Commission reported. In addition, non-fatal pool and diving board accidents can leave victims with long-term health issues.
ALCOHOL: Social host liability laws vary widely but 40-plus states have them on the books. Most of these laws offer an injured person a method to sue the person who served them alcohol while on their premises. Criminal charges may also apply under some social host liability laws.
Any of these scenarios pose a liability risk, so homeowners are advised to review their insurance policies to understand their policy’s liability limits. A liability limit of at least $300,000 is often a cost-effective step to take in consultation with an insurance professional.
In addition, consider adding an umbrella liability policy, which provides liability protection over and above current coverage.
By Scott Holeman, Media Relations Director, Triple-I
California Insurance Commissioner Ricardo Lara made state history by becoming the first openly gay official elected to statewide office. During our Declarations of Pride series, he shared his unique journey with Triple-I, by discussing his entry into politics, views on how the insurance industry is supporting the LGBTQ+ community and what Pride Month means to him.
Lara says important steps are being made by the insurance industry to advance LGBTQ+ rights.
Lara says #Pridemonth is an important time to honor LGBTQ+ civil rights pioneers, but also for understanding obligations that remain in the fight for equality.
Losses from the winter storm that swept through the southern United States earlier this year continue to loom large among the concerns of property and casualty insurers, even as the nation contends with wildfires and anticipates yet another above-average hurricane season.
“On its own, Uri would not necessarily impact premium rates,” says Dr. Michel Léonard, CBE, Triple-I vice president and senior economist. “What matters is the overall severity of extreme weather events during a calendar year or a specific peril season.”
Dr. Léonard reports that current expectations among weather experts of higher-than-average hurricane and wildfire seasons – in addition to Uri – will likely contribute to increases in property insurance rates in 2021, “before and regardless of inflation.”
“Traditionally, actuarial models keep natural catastrophe losses and inflation separate and combine them in the last stage of rate estimates,” Léonard says.
Three 2021 trends, he says, add up to put upward significant pressure on insurance rates for 2022:
Combined 2021 natural catastrophe losses from winter storms, hurricanes, and wildfires expected to be above annual averages;
Overall inflation in the U.S. currently forecast to be between 4% and 6% for 2021, the highest in a decade; and
Industry-specific inflation above the national average for construction materials and labor due to COVID-19 supply-chain disruptions.
“There are a few situations in which extreme weather events directly contribute to replacement cost increases, which, in turn, impact rates,” Léonard says. “But ‘price gouging’ – such as happened after Uri – shouldn’t be confused with inflation. It’s temporary, while inflation almost always endures.”
It’s important for people living in earthquake-prone areas to remember that standard homeowners and renters insurance don’t cover most earthquake damage.
For this reason, Janet Ruiz, Triple-I’s California-based director of strategic communication, advises people in the state to consider buying a policy that, at a minimum, covers the structure, building code upgrades, and emergency repairs.
“You can also get coverage for additional living expenses and personal property, and some companies even cover damaged swimming pools or masonry veneer,” Ruiz writes in a recent Op-Ed in The San Diego Union-Tribune.
As the South Napa and Ridgecrest earthquakes – in 2014 and 2019, respectively – recede from memory and wildfire readiness and resilience seem the more immediate need, Ruiz reminds Californians that even relatively mild tremors can inflict costly damage. She therefore encourages residents to reduce their risk through education, mitigation, and insurance.
There are a number of earthquake insurance providers in California. Many participate in the California Earthquake Authority (CEA), but some non-CEA insurers also provide options to help protect Californians from financial loss.
“CEA offers premium discounts to policyholders who have retrofitted, or strengthened, their older homes to help them better withstand shaking,” Ruiz writes.
In a separate Op-Ed, CEA CEO Glenn Pomeroy advises on retro-fitting older homes to be more quake resistant and resilient. Older homes – especially those built before 1980 – are more susceptible to earthquake damage because they predate modern seismic building codes. According to U.S. Census data, more than 53 percent of the housing units in San Diego County fall into that category of being built before 1980 and could be in need of retrofitting.
Seismic retrofitting can be straightforward and often not as expensive as homeowners might think. Depending on the type of retrofit needed, the work can usually be done in a couple of days, with costs ranging from $3,000 to $7,000.
“Compared to the potential cost of repairing an earthquake-damaged home,” Pomeroy writes, “spending a smaller amount of money to help prevent damage can help avoid a much bigger repair bill after an earthquake. Whatever the cost, it is a relatively small price to pay to protect the value of your home and, more importantly, make it safer for your family.”
Particularly important as the need for pandemic social distancing continues, Pomeroy points out, “Homeowners can remain inside their dwelling as workers do the job without entering the residence.”
