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Legal Environment

Pushback continues against ALI restatement of liability insurance

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

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

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

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

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

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

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

Insurance Industry

Michigan arson hotline gets a second life

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

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

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

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

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

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

Specialty Coverage

Offshore wind farms: what’s the insurance angle?

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

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

What’s the insurance angle?

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

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

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

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

Wind turbine construction

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

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

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

Wind turbine operation

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

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

Ocean marine insurance

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

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

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

Insurance Industry

FROM THE I.I.I. DAILY: OUR MOST POPULAR CONTENT, APRIL 26 TO MAY 3

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Here are the 5 most clicked on articles from this week’s I.I.I. Daily newsletter.

To subscribe to the I.I.I. Daily email daily@iii.org.

Catastrophes

All about pandemic catastrophe bonds

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In previous articles, we discussed how communicable diseases and pandemics are (or are not) addressed in personal and commercial insurance policies. Today, we’ll talk about pandemic catastrophe bonds.

The Ebola outbreak between 2014 and 2016 ultimately resulted in more than 28,000 cases and 11,000 deaths, most of them concentrated in the West African countries of Guinea, Liberia, and Sierra Leone.

The outbreak inspired the World Bank to develop a so-called “pandemic catastrophe bond,” an instrument designed to quickly provide financial support in the event of an outbreak. The World Bank reportedly estimated that if the West African countries affected by the Ebola outbreak had had quicker access to financial support, then only 10 percent of the total deaths would have occurred.

But wait, what are “catastrophe bonds” and what’s so special about a pandemic bond?

“Traditional” catastrophe bonds

Like good old-fashioned insurance, catastrophe bonds are a way to transfer risk, often for natural disasters. They usually work like this: investors buy a high-yield bond issued by an insurance company. If a specific qualifying event occurs, such as if claims from a natural disaster exceed a certain amount (an “indemnity trigger”), the bond holders forfeit the principal of the bond, which goes to the insurer to help defray costs.

Catastrophe bonds are high-risk investments – hence the high yields they pay to investors to compensate for that risk. After all, there’s a pretty good chance a sizeable hurricane will hit in any given year.

Pandemic catastrophe bonds

Pandemic catastrophe bonds are similar. An entity (like the World Bank) sells a bond, which pays interest to the investors over time. If certain triggers occur, then the principal from the bond sale is quickly funneled to medical efforts to contain and quell the disease outbreak. That way, affected regions don’t have to wait for aid money to be raised and coordinated.

Pandemic bonds are somewhat different from traditional catastrophe bonds, though. Remember, traditional catastrophe bond triggers are usually based on insurance losses (indemnity triggers), which don’t make much sense in the context of a disease outbreak. Insurance losses can take quite some time to adjust and finalize.

There’s no time for that kind of thing when we’re dealing with a pandemic. Capital needs to move quickly to the affected region. So if a trigger can be quickly determined, then the capital payouts can be made quickly as well.

That’s why pandemic bonds are triggered by, for example, the number of patients or the speed of disease spread (a “parametric trigger”). Parametric triggers are usually objectively verifiable, such as how many cases of a disease have been reported in a given time. Once that trigger is activated, the bond gets to work. No further adjustment needed.

Why are catastrophe bonds useful for fighting pandemics?

And that’s what makes pandemic bonds attractive for addressing disease outbreaks: speed. Since pandemic bonds are not triggered by losses, but rather by the actual, real-time spread of the disease, capital can flow much faster than if it had to wait until insurance losses began rolling in. That means near-immediate financial support for health clinics, aid workers, containment efforts, and more.

Indeed, the speed of capital flow to emergency response is crucial for pandemics. Global supply chains and interchange, not to mention the exponential growth in international travel, mean that disease outbreaks can spread much faster and can cause much more widespread damage than in the past. The faster a disease can be nipped in the bud, the fewer people infected – and the less disastrous the outbreak.

Pandemic bonds in the real world

In 2016 the World Bank developed the Pandemic Emergency Financing Facility (PEF), which created, in part, a pandemic catastrophe bond to help provide capital in the event of another disease outbreak in West Africa. The PEF is triggered by number of deaths, speed of disease spread, and the spread of disease across international borders, and provides coverage for six viruses, including Ebola. The program has been supported by private reinsurers as well, including Munich Re and Swiss Re.

You can learn more about the PEF here.

Insurance Industry

From the I.I.I. Daily: Our most popular content, April 19 to April 25

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Here are the 5 most clicked on articles from this week’s I.I.I. Daily newsletter.

To subscribe to the I.I.I. Daily email daily@iii.org.

 

 

 

 

Workers Compensation

It’s safe to work in (not on) marijuana

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There’s a pervasive myth out there that the marijuana industry is an unregulated Wild West populated by desperadoes and mountebanks out to score a quick buck.

But even a passing familiarity with how the industry operates in states with legal recreational and medical marijuana should be enough to dispel that myth. Marijuana operations are subject to extremely strict licensing requirements and regulatory oversight. Every player in the marijuana supply chain is tightly controlled – from cultivators to retail stores to, yes, the buyers themselves.

In fact, a recent analysis from workers compensation insurer Pinnacol Assurance suggests that the industry’s strict regulatory oversight may also be the reason why it’s a safe industry to work in.

Pinnacol’s analysis looked at Colorado claims data for marijuana workers. There were 350 injuries in 2018, most of which were strains, cuts, and slips and falls. Pinnacol concluded that the industry is relatively safe when compared to similar job-types in Colorado.

In addition to tight regulations, the analysis suggests that Colorado marijuana operators are also increasingly focused on safety and risk mitigation.

But working in marijuana is different from working on marijuana. Working stoned is probably a bad idea. You can read more about marijuana and employment issues here.

Auto Insurance, Homeowners Insurance

Florida legislature passes AOB reform

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Insurance Journal reports that the Florida Senate has passed a bill designed to reform parts of the state’s insurance assignment of benefits (AOB) system. Governor Ron DeSantis has stated that he plans to sign the bill into law.

Florida’s AOB system has long been in dire need of reform.

As we document in our report “Florida’s assignment of benefits crisis”, an assignment of benefits (AOB) is a contract that allows a third party – a contractor, a medical provider, an auto repair shop – to bill an insurance company directly for repairs or other services done for the policyholder.

The process is innocuous and common throughout the country. But as our report notes, Florida’s unique legal systems richly rewards plaintiff’s attorneys and vendors when they submit inflated bills to insurance companies and then file lawsuits when those bills are disputed.

Not just a few lawsuits. Lots of lawsuits. The numbers are staggering. There were roughly 1,300 AOB lawsuits statewide in 2000. There were more than 79,000 in 2013 and more than 153,000 in 2018, a 94 percent increase in just five years.

Inflated claims and massive volumes of lawsuits have the predictable result of driving up insurance companies’ legal costs. Insurers are forced to then pass those costs on to consumers. In the study, we estimate that Florida’s auto and homeowners policyholders have paid about $2.5 billion more for insurance over the past dozen years to cover the increase in legal costs.

That doesn’t even count the billions more in excess claim settlements that are at the heart of the problem.

The new bill seeks to address the problem by reforming how AOBs can be executed and how plaintiff’s attorneys can get paid for lawsuit settlements. If signed, the bill will come into effect on July 1, 2019.

You can download our report documenting the crisis here.

Insurance Industry

From the I.I.I. Daily: Our most popular content, April 12 to April 18

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Here are the 5 most clicked on articles from this week’s I.I.I. Daily newsletter.

To subscribe to the I.I.I. Daily email daily@iii.org.

 

 

 

Corporate Social Responsibility

Recruiting young workers through a culture of volunteerism

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photo courtesy of State Farm®

Did you know that volunteering your time and expertise can make you happier and healthier? It’s been shown that unpaid work for the good of others enables people to make new friends, learn new skills and experience reduced stress levels.

And it’s not just individuals who benefit. Companies that create a culture of volunteering have better employee morale, workplace atmosphere and brand perception. A Deloitte study found that a large majority (89 percent) of employees think that companies that sponsor volunteer activities offer a better work environment. Volunteer activities were also reported to be more effective at boosting staff morale than company-sponsored happy hours, and more than three-quarters of workers said that volunteering is essential to employee well-being.

The insurance industry is no slouch when it comes to volunteering. The Insurance Industry Charitable Foundation (IICF) has contributed more than 300,000 volunteer hours to hundreds of community nonprofit organizations since its inception in 1994. The industry gives back to communities in significant and varied ways including pro bono and skills-sharing support to nonprofit organizations, disaster response, relief and recovery, employee-driven outreach in local communities and many other creative corporate social responsibility initiatives.

The industry is also hoping to recruit and retain workers by emphasizing the culture of volunteering. On April 10, the IICF released a white paper documenting the findings of its Millennial Ideas Summit. The summit convened in late 2018 with more than 50 young leaders and emerging talent from across the insurance industry to discuss key topics and challenges facing the industry. These included talent and recruitment of millennials; technology, innovation and change; and social responsibility, particularly the industry’s philanthropic response following natural disasters.

The paper, What Millennials Want, how are we engaging the millennial workforce, concluded that communicating to the younger workforce that insurance is a business of service and one that helps people in their times of need is critically important to millennials, who want opportunities to give back and make a difference through experiences and grassroots ways that help their communities.

April is National Volunteer Month. What is your company doing to promote volunteerism? Let us know in the comments section.

 

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