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Trials and Errors: Plaintiffs’ Attorneys Could Complicate Efforts to Help Businesses Hurt by COVID-19

By James Ballot, Senior Advisor, Strategic Communications, Triple-I

It’s been more than eight months since COVID-19 first struck the U.S., and millions of small business owners are still hurting. All the while, a few plaintiffs’ attorneys are treating the pandemic as another opportunity to profit from costly insurance litigation.

At a time when businessowners are looking for leadership to bring much needed financial support, these same attorneys are hoping legislators and judges will help them retroactively rewrite business income (interruption) (BI) insurance contracts. One key figure in this effort is John Houghtaling, a New Orleans-based plaintiffs’ lawyer who was featured in a recent Bloomberg Businessweek profile.

Yet, despite the efforts of Houghtaling and others, courts across the country have to date overwhelmingly affirmed BI insurance policies do not cover losses resulting from the COVID-19 pandemic. And the facts supporting these decisions offer clear and unambiguous evidence indicating BI insurance policies are not designed to cover pandemic-caused business interruptions.

Adds Michael Barry, Head of Media and Public Affairs, at the Insurance Information Institute, “Not one business interruption insurance policy in the U.S. was written on the assumption nearly every business would be interrupted at the same time.” Barry adds, “This is why regulators and judges are consistently siding with insurers who argue direct physical damage to property is needed to trigger a business interruption policy.”

Irrespective of insurers’ and trial attorneys’ competing points of view, the authors of the Bloomberg Businessweek article cite the need for timely and decisive action: “A yearslong legal battle might not be much help to struggling businesses,” the article states. As the end of 2020 approaches, litigation seeking to compel insurers to cover pandemic-related income losses appears likelier to further the lawyers’ interests as opposed to those of businessowners seeking financial support.

Other potential solutions are on the table, most of which are taking shape around the idea that the federal government is the only entity with the reach and financial resources to help businesses recover from an event the magnitude of a global pandemic. On this point, a growing consensus of legal scholars and insurance industry experts concur, with Stefan Holzberger, AM Best chief rating officer, concluding in commentary to a recent report, that “pandemic risk does not afford insurance companies any geographic diversification due to its global nature … Only a governmental program, or perhaps a public-private partnership, could provide the backstop sufficient to compensate for lost revenue to businesses.”

Watch: Can Businesses Win the Fight Over COVID-19 Insurance Claims

As a counterpoint to statements made by Houghtaling and other plaintiffs’ attorneys, Sherman Joyce, President of the American Tort Reform Association presents a competing vision for how American businesses can unite to recover economically from the COVID-19 pandemic: “Americans’ elected representatives — not the trial bar — should have the authority to regulate business within the U.S.” Joyce continues, “The courts must restore that balance of power by rejecting the dreaded return of regulation through litigation.”

Utility Shutoffs Threaten to Worsen Pandemic Pain

I’ve been living and working at my father’s house since the onset of COVID-19, keeping him from having to venture out and risk infection. Late last week, his furnace died, and we were fortunate to have family nearby to move in with while we wait for it to be fixed.

I’ve been truly grateful and mindful of people – especially the elderly – who don’t have such options. Then, this morning, I read this National Journal article, which threw light on the subject from a different angle.

“Throughout the pandemic, states and cities have put in place moratoriums on utility shutoffs,” the Journal writes, “but many have expired and more will be lifted in the coming weeks.”

The pandemic’s economic dislocations have put many people in situations in which they may not be able to pay basic bills, like rent, electricity, heating, and water. Not only that – even people who can move in with family or friends may be putting themselves in danger of infection.

People can’t remain in a home safely without water, said Rianna Eckel, senior organizer for Food & Water Watch, which advocates on environmental and resources issues.

“You can’t do basic things like wash your hands, which is one of the top safety recommendations,” she said. “You can’t bathe or shower; you can’t flush your toilet; you can’t cook; you can’t really clean. That raises the risk for COVID transmissions because you’ll have families who are going to neighbors’ houses, going to friends’ houses, so that they can wash some clothes and cook or maybe take a shower.”

Similar concerns apply to electricity, gas, and steam utilities.

“Those are critical to the ability to heat your home, to cook, refrigeration to preserve foods or medication,” said Emily Benfer, a law professor at Wake Forest University. “You need electricity to use medical equipment. So all of these are necessary to sheltering in place and to maintaining health, let alone preventing the spread of the virus.”

Benfer added, “The COVID-19 pandemic and social-distancing requirements have created a situation in which utility shutoff is a life-threatening emergency for the majority of Americans.”

In our case, family members had all just been tested for COVID-19 out of concern about a possible exposure (we came up negative). This precaution, too, isn’t readily available to many people. Especially people who have to choose between paying for electricity or food.  

In November, 10 state moratoriums on utility shutoffs are slated to end, according to the National Energy Assistance Directors’ Association. Thirty-three states have expired moratoriums or did not put one in place.

Lawmakers and advocates have been pressing for a moratorium on water shutoffs, calling for the Centers for Disease Control and Prevention to use the same authority it exercised when the agency issued a stop to evictions. In a House-passed bill providing COVID-19 emergency funding, $1.5 billion was included to assist low-income households with water bills.

“It’s incumbent on utilities to figure out a way to make sure that people’s health is not put at risk by having widespread shutoffs, because that’s just going to make the pandemic all that much worse,” said Erik Olson, a health expert at the Natural Resources Defense Council. “The answer to this problem is not to be shutting off low-income people’s water all over the country.”

Beyond the clear humanitarian concerns, if these issues are not addressed effectively, they could lead to litigation and insurance claims to be resolved for some time to come.

Hurricane Delta Triggered Coral Reef Parametric Insurance

Hurricane Delta last month triggered a 17 million peso (US $800,000) insurance payout to the  Trust for the Integrated Management of the Coastal Zone, Social Development, and Security for the State of Quintana Roo, Mexico. The parametric policy, deployed last year, cost the trust nearly 5 million pesos (US $230,000), covering 150 square kilometers (58 square miles) of coastal ecosystems for the entire 2020 hurricane season.

Recent research illustrates the benefits provided by mangroves, barrier islands, and coral reefs – natural features that frequently fall victim to development – by limiting tropical storm damage, particularly from storm surge. Unlike traditional insurance, which pays for damage if it occurs, parametric insurance pays when specific conditions are met – regardless of whether damage is incurred. Without the need for claims adjustment, policyholders quickly get their benefit and can begin their recovery. In the case of the coral reef coverage, the swift payout will allow for quick damage assessments, debris removal, and initial repairs to be carried out.  

Quintana Roo partnered with hotel owners, the Nature Conservancy, and the National Parks Commission to pilot a conservation strategy involving a parametric policy that pays out if wind speeds greater than 100 knots hit a predefined area.  

Similar approaches could be applied to protecting mangroves, commercial fish stocks that can be harmed by overfishing or habitat loss, or other intrinsically valuable assets that are hard to insure with traditional approaches.  

Society of Insurance Research Survey Reveals Impact of COVID-19 on Insurance Professionals

The Society of Insurance Research (SIR) held its annual conference virtually in October, and, as expected, the impact of COVID-19 on the industry was at the top of the agenda.

SIR conducted a survey of insurance industry professionals in May to understand the impact of COVID-19 on the business climate. The survey asked how the pandemic was impacting staffing, budgets, work-from-home arrangements, business travel and professional development.

At the time of the survey, 97 percent of carrier respondents said staffing levels have not decreased. When asked about work-from-home arrangements, only 10 percent of respondents said they plan to return to the office full-time once restrictions are lifted.

Travel restrictions will remain in place indefinitely for most respondents. Even when travel restrictions are lifted, nearly everyone will remain cautious of traveling nationally, and nearly three-quarters expect their travel budgets to be reduced.

Micheal Myers, Lead Competitive Intelligence Analyst at USAA and President of SIR, said, “This was an extremely insightful and timely survey of industry professionals. SIR put the insights into action by quickly pivoting from planning an in-person conference to meeting virtually (with record attendance). We also published COVID-related research reference library to help researchers solve business problems. As is consistent with SIR’s mission, we provided these resources to members and non-members alike to advance the industry.”

Over 180 professionals responded to the survey; 67 percent were carriers and 33 percent were suppliers/vendors. A variety of lines and businesses were represented, including commercial, personal, life and health.

No Surprises: How Insurers and Their Customers Benefit from Financial Education

By Sean Kevelighan, CEO, Insurance Information Institute

Sean Kevelighan

Insurers have responded quickly and effectively to 2020’s extraordinary volume of hurricanes, wildfires, and civil unrest. These events are resulting cumulatively in billions of dollars in insured claim payouts.  

Yet a recent Forbes article stated that the owners of one of the largest Broadway theater chains were “shocked to learn that its insurance companies would not cover most of its losses during the COVID-19 pandemic.”

Making people more prepared and resilient is our fundamental goal at the Insurance Information Institute (Triple-I). We seek every opportunity to educate customers about how their insurance works before they suffer an insured loss. Part of this mission is to explain how pandemics are uninsurable. That’s because, unlike covered events, which are limited in time and geography, pandemics simultaneously affect everybody. This is something we’ve explained in briefings to legislators, legal experts and consumer and trade media.

Large-Scale Solutions to Large-Scale Problems

As a result, a consensus is forming around the idea that the federal government is the only entity with the reach and financial resources to help businesses recover from an event the magnitude of a global pandemic. It’s in this spirit that we help inform public discussions about the need for a federal governmental role in protecting the U.S. against future pandemics.

Still, while insurers, regulators and the U.S. government work to deliver relief to business financially affected by future pandemics, we need to stay focused on the present. And to do this, we need to take a quick look into the past:

Insurance has been around for 350 years as a way for households, businesses and communities to recover and rebound after wildfires, hurricanes and other catastrophes. Time and again insurers have been there for their customers because that’s what they do. For example, in the months after 9/11, insurers paid out tens of billions of dollars to keep affected businesses afloat while New York and Washington, DC rebuilt from the rubble.

In 2020, insurers continue to perform their vital societal role, covering insured losses from record hurricane and wildfire seasons, as well as the most destructive civil demonstrations in more than a quarter-century. Insurance simplifies a rather complex risk management process and creates products that deliver simpler ways for people to be more prepared and resilient. Covering these hazards demands immense capital resources.

Questions? Your Policy Documents Have the Answers

Insurance is heavily regulated, and as the Triple-I reaffirmed at September’s annual summit of the National Association of Insurance Commissioners (NAIC), the industry we represent relies on a strong working partnership with regulators and government agencies across America to help make insurance work better for everybody.

One of the tangible results of this partnership is something that anybody can literally hold in their hands: insurance policy documents. Reading these documents to understand what you’re purchasing is an essential part of preparedness.

Business income (interruption) or BI insurance losses caused by a pandemic are not covered because direct physical damage, such as that caused by a hurricane or a fire, is what triggers a standard BI policy. As many courts and academics around the country have stated, neither a virus nor bacteria leads to the direct physical damage of a business’s structure. This contract language is well-established; moreover, every policy is approved by individual states before they are issued to BI policy holders.

We view it as a success when nobody is shocked by what’s covered, and what’s not, under their insurance policies. This is why the Triple-I regularly urges business owners to become familiar with their insurance documents and have regular conversations with their agent or broker to discuss anything they don’t understand.

In an age when we’re all accustomed to just clicking the “terms and conditions” box, ignoring agreements, paradoxically, has become something everybody can agree with. Social scientists consider this to be a form of cognitive dissonance: We know we should read our insurance policies, and yet few of us do. This is a behavioral pattern we’re all guilty of and the Triple-I understands there are many demands on a customer’s time.

Which brings us back to an essential point, that insurance companies prioritize their efforts and resources into making sure that everybody knows about the coverage they have and need.

Pandemics are uninsurable because insurers don’t collect premiums to cover business losses due to viruses and other pathogens. There are products available for this purpose, but an overwhelming majority of businesses decline to purchase them. These exclusions and the availability of pandemic insurance is a fact well known by many experienced professionals—notably risk managers and trial attorneys. The Triple-I is willing to work with anybody to make the public better aware of the risks and how to prepare for them.

The next pandemic surely will come. How insurers, their customers, and the federal government respond now will ensure our resources and energies are devoted to saving lives from all the threats the U.S. faces.  

Are Late, Wet Hurricanes Becoming a Trend?

By Max Dorfman, Research Writer, Insurance Information Institute

Hurricane Zeta became the 11th named storm and 6th hurricane to hit the United States yesterday, as the extremely active 2020 Atlantic hurricane season continues. Zeta struck just one day before the eighth anniversary of Superstorm Sandy.  

Sandy was the deadliest and most destructive hurricane of the 2012 Atlantic season, causing $70 billion in economic damages and resulting in over 70 fatalities when it made landfall in New Jersey. It surprised an under-prepared New Jersey and New York City when it arrived. Sandy was no longer a hurricane when it made landfall, having undergone transition into an extra-tropical (e.g., non-tropical) low pressure area earlier that day. Although it was no longer a hurricane upon its arrival, it was still immensely damaging due especially to its large size, as well as its interaction with a strong storm system moving east.

There is some history of late-season hurricanes, but Colorado State University climate scientist and Triple-I non-resident scholar Dr. PhilKlotzbach says it would be an overstatement to call this a trend.

“We haven’t really seen a trend in late-season hurricane activity,” Klotzbach said. “A lot of what drives late-season hurricane activity is the phase of El Niño or La Niña. If you have a La Niña, like we have this year, which is colder water in the eastern and central tropical Pacific, that tends to reduce the vertical wind shear that typically tears apart hurricanes. Reduced wind shear tends to keep the hurricane season going longer.”

Klotzbach noted that 2012 was neither an El Niño nor La Niña year.

What made Sandy different?

Hurricane Sandy was a massive aberration.

“Normally, when storms spin up in the Caribbean and move northeast, they continue moving northeast into the North Atlantic and do not significantly impact land,” Klotzbach said. “Unfortunately, with Sandy it started moving northwest.” Indeed, Sandy managed to wreak havoc across the Northeast and other parts of the country, including dumping as much as 36 inches of snow in West Virginia.

“There was a big high-pressure area over the Atlantic Provinces of Canada that built to the north of Sandy and drove the storm to the northwest,” Klotzbach explained. “The sustained winds were strong, maxing out around 80 mph, but the real problem with Sandy was its tremendous size.”

Given the large size of Sandy, it drove a huge storm surge that spanned from New Jersey to Connecticut including New York City.

“The storm surge from Sandy was incredible,” Klotzbach said. “The surge also coincided with astronomical high tide, which exacerbated the inland penetration of water from the coast. For example, the storm tide at the Battery on the southern tip of Manhattan exceeded 14 feet.”

What we can do

The public needs to be more informed about the dangers of these kinds of storms. Even though Sandy wasn’t technically a hurricane when it made landfall in New Jersey, Klotzbach believes the transition of the storm from hurricane to extra-tropical may have been confusing for people who didn’t understand that the storm wasn’t less of a threat after its classification was altered.

“Just because the storm was changing in structure doesn’t mean it wasn’t a significant threat,” Klotzbach said. “It had just about the same maximum winds as when it was a hurricane. People also looked at the maximum wind and saw that it was 80mph and didn’t think it was that much of a problem. But it was an enormous storm, so the surge was much bigger than what you’d expect from an average category 1 hurricane. From that perspective, there were challenges with conveying the magnitude of the threat.”

Indeed, Klotzbach gives a dire warning about the risks associated with not taking these storms seriously.

“A lot of it is in the messaging when these storms are going from tropical to extra-tropical,” he said. “We need to convey how these threats are changing and that just because a system is becoming extra-tropical doesn’t mean that the threat has gone away. We need to get more social science integrated into meteorology to better convey these results to the general public.”

Cross-posted from Triple-I’s Resilience Accelerator.

Mangrove Insurance: Parametric + Indemnity May Aid Coastal Resilience

Earlier this year, I wrote about the role mangrove forests and coral reefs play in mitigating tropical storm damage and how insurance might help protect these critical resources. A recent Nature Conservancy study looks specifically at opportunities in mangrove protection and restoration and identifies where insurance could be used to support their resilience benefits.

In many places, mangroves are the first line of defense, their aerial roots helping to reduce erosion and dissipate storm surge. In Florida, one study found, mangroves alone prevented $1.5 billion in direct flood damages and protected over half a million people during Hurricane Irma in 2017, reducing damages by nearly 25% in counties with mangroves. Another study found mangroves actively prevent more than $65 billion in property damage and protect over 15 million people every year worldwide.  

Unfortunately, they frequently fall victim to development that creates the greatest potential for storm-related losses.

The Nature Conservancy study describes the implementation of a coral reef insurance product in Quintana Roo, Mexico, and explores how the model could be adapted for mangrove preservation. In Quintana Roo, a trust fund accepts money from public, private and philanthropic sources, as well as a federal fee collected from beachfront property owners who wish to use the beach for commercial purposes. It uses those funds to buy the insurance – a parametric product that is triggered if wind speeds in a designated area exceed 100 knots.

Parametric policies cover risks without the complications of sending adjusters to assess damage after a catastrophe. Instead of paying for damage that has occurred, it pays out if certain agreed-upon conditions are met – for example, a specific wind speed or earthquake magnitude in a particular area. If coverage is triggered, a payment is made, regardless of damage. Speed of payment and reduced administration costs can ease the burden on both insurers and policyholders.

“Unlike coral reefs, however, mangroves do not usually require rapid post-storm interventions in order to survive,” the study says. This means an indemnity insurance policy might be created that delivers payments based on post-catastrophe assessments of mangrove damage. “There are a variety of insurance products available that can be tailored to meet the specific needs of mangroves, with initial payouts made quickly through parametric covers and assessed payouts made through indemnity cover at a later stage.”

Before a mangrove insurance policy can be developed and deployed, a full feasibility study would need to be conducted.  The Nature Conservancy report recommends that this include “higher-resolution flood-risk models, estimation of the wind-reduction benefits of mangroves, and the construction of fragility curves to show the relationship between damage to a mangrove forest and some component of a storm event, such as storm surge or wind speed.”

P/C Insurers Remained Profitable In 2020’s First-Half Despite Challenges

Dr. Steven Weisbart

The U.S.’s property/casualty (P/C) insurers turned in a profitable performance in 2020’s first-half even as the industry’s net income dropped 26 percent compared to 2019’s first-half, according to Dr. Steven Weisbart, Chief Economist, Insurance Information Institute (Triple-I).

“The first half of 2020 was by most measures financially successful for insurers writing P/C insurance. Two measures of the industry’s health—revenue and capital—rose in the first half of 2020,” Dr. Weisbart observed, in a commentary he wrote following the release of a report this week by Verisk and the American Property Casualty Insurance Association (APCIA).  P/C insurers write auto, home, and business insurance coverage.

Net income after taxes for P/C insurers was $24.3 billion in the first half of 2020 whereas this same figure stood at $32.8 billion in the first half of 2019. Contributing to that drop was $1.4 billion in realized capital losses on insurer investments in 2020’s first half, a swing from $4.3 billion in realized capital gains a year earlier, Verisk and APCIA found.

The uncertainty within insurance and capital markets due to COVID-19 could be seen in a number of ways, Dr. Weisbart’s commentary noted, as catastrophe-related claim payouts grew in 2020’s first-half, U.S. auto insurers offered to their policyholders pandemic-related premium relief, and the policyholder’s surplus dropped to $772 billion at the end of 2020’s first quarter before rebounding to $826 billion at the end of 2020’s first half.  The policyholders’ surplus is the amount of money remaining after the insurance industry’s cumulative liabilities are subtracted from its assets.

A COVID-19 Vaccine Is Precious Cargo

By John Miklus, President, American Institute of Marine Underwriters (AIMU)

While it’s not a panacea, a vaccine for COVID-19 is expected to go a long way toward reducing the number of cases and slowing transmission of the virus. Development and testing is moving at a frenetic pace, meaning that in the not too distant future a fully-approved vaccine will need to be shipped in unprecedented volumes.

Experts predict it will take anywhere from 8,000 to 15,000 fully loaded flights to transport 20 billion doses around the world. While air is often the preferred method for shipping pharmaceuticals because of time sensitivity, it’s likely that large ocean transport companies will take on some of the load.

Once a COVID-19 vaccine is approved and manufactured, cargo insurance will be imperative to ensure speedy and safe distribution. Insurance coverage for pharma products, which encompass vaccines, is widely available and written by a number of AIMU’s member companies.

When one considers the infrastructure required to ship billions of doses from manufacturing facilities to hospitals and clinics around the world, this could be one of the biggest logistical challenges in modern history. Pharma shipments such as vaccines present a number of unique underwriting challenges, including:

  • High valuations: According to one industry analyst, the market for COVID vaccines is estimated at $100 billion, with $40 billion in profits. Shipping companies will handle a lot of valuable inventory and pharmaceutical companies have a lot at stake. A single shipment could be valued into the millions of dollars.
  • Time and temperature sensitivities: Vaccines currently under development require precise handling. Some need to be stored at temperatures as low as -80C (-112F), which will require special refrigerated containers, along with rigorous temperature monitoring and quality control.
  • Careful packaging and handling requirements: The vaccine will require special packaging such as cold-resistant vials and boxes to hold multiple vials. Dry ice may be required, along with syringes and protective equipment for healthcare workers administering the vaccine. Besides pharmas, the vendors who supply these products will also have skin in the game.
  • High theft exposure: Pharma companies plan to use everything from GPS to track their product to fake shipments to confuse criminals. One glassmaker plans to use black-light verification to prevent counterfeiting. Since the start of the pandemic, tests, masks and other gear have gone missing, so it’s not a stretch to think professional thieves and cargo theft gangs will want to get their hands on a precious and valuable vaccine.

The involvement of experienced loss prevention experts is vital to provide advice on proper packaging, proper handling and storage, setting standards and procedures for transportation providers, and recommending security measures to ensure safe delivery. AIMU member companies believe in the old saying that the best loss scenario is preventing one from ever occurring.

Latest “Lightning Round” Highlights Resilience Hack-a-Thon Winners

Last week’s Lightning Round III: Products and Services for Disaster and Risk Mitigation featured presentations by four teams of entrepreneurs who have developed products to boost societal resilience and mitigate natural disaster risks. This was the third time this year that Triple-I and its Resilience Accelerator, ResilientH20 Partners and The Cannon, have connected entrepreneurs with leading insurance innovation specialists and investors.

The first two presentations were by prize-winning teams from 2020’s Hack-for-Resilience competition, which was hosted by Wharton Risk Center and Triple-I’s Resilience Accelerator. The teams presented:  

  • Air.ly:  An app that identifies locales near wildfire zones where individuals afflicted with respiratory issues, or other health complications, can find fresh-air recreation opportunities. It won the prize this year for the Best Overall Hack-for-Resilience.
  • Insura: An app that uses a home’s location and historical loss data to recommend mitigation and maintenance activities that could reduce a homeowner’s insurance premiums.  It won this year’s prize for the Best Application of Insurtech.

Ami Nachiappan, a Junior at New York University, presented on behalf of the four-member Air.ly team.

“For many with sensitive respiratory systems, the wildfires’ smoke has created difficulty breathing and dizziness,” she said, pointing out that this can be the case hundreds of miles from fire locations and long after the blazes have been extinguished.

Air.ly provides “a comprehensive visualization of real-time air-quality data across the U.S.,” as well as well as recommending locations for safe outdoor recreation activities. Existing weather apps that display air-quality information lack “call to action options and cautionary warnings,” and recreation apps like Yelp lack real-time weather and air-quality information.

This fragmentation, Nachiappan said, is what sets Air.ly apart.

Savan Patel, a sophomore at the University of Pennsylvania, spoke for the four-member Insura team. Insura is a third-party “gamification platform” for home improvement products modeled after applications that seek to reduce automobile accidents and claims by influencing driver behavior.

In addition to the hack-a-thon winners, two established businesses – members of the Resilience Innovation Hub “portfolio of disaster risk-mitigation innovation” presented their products:

  • Thermal Gate™ 2.5:  An artificial intelligence-based system that screens and detects individuals who have an elevated body temperature before they enter venues that are open to the public.
  • Mesh++ : A just-in-time WiFi community network that requires no external power or wiring to generate broadband access for first-responders, citizens, and preparedness interests.

All four presentations can be viewed below:

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