Litigiousness

ASBESTOS-RELATED ILLNESS

Exposure to asbestos can cause lung cancer and other respiratory diseases. The first asbestos-related lawsuit was filed in 1966. A large number of workers who may have physical signs of exposure but not a debilitating disease are filing claims now out of concern that if they later develop an illness, the company responsible may be bankrupt, due to other asbestos claims. It can take as long as 40 years after exposure for someone to be diagnosed with an asbestos-related illness. In December 2012 A.M. Best increased its estimate of ultimate insurance industry asbestos losses from $75 billion in 2011 to $85 billion. A.M. Best attributes the jump to a spate of court rulings that increased insurance coverage for claimants, and a rise in claims related to mesothelioma, a fatal type of cancer identified with exposure to asbestos. In Congress a bill, Furthering Asbestos Claim Transparency, was introduced in March 2013. The bill would require asbestos trusts, set up by companies to deal with asbestos claims to file detailed quarterly reports on claims and their resolution with the Executive Office of U.S. Trustees. (See Insurance Issues Updates: Asbestos Liability).

ESTIMATED ASBESTOS LOSSES, 2004-2013 (1)

($ billions)

    Losses  
Year Beginning reserve  Incurred (2) Paid Ending reserve (3)
2004 $22.4 $3.6 $2.9 $24.0
2005 24.0 3.8 2.4 26.6
2006 25.2 1.7 2.6 24.1
2007 23.2 2.5 2.5 23.5
2008 23.5 1.1 3.7 20.5
2009 20.6 1.9 2.0 20.4
2010 20.5 2.4 2.3 20.6
2011 20.6 1.8 1.8 20.6
2012 20.4 1.9 2.0 20.3
2013 20.4 2.0 2.1 20.3

(1) All amounts are net of reinsurance recoveries.
(2) Incurred losses are losses related to events that have occurred, regardless of whether or not the claims have been paid, net of reinsurance. Includes loss adjustment expenses.
(3) Because of changes in the population of insurers reporting data each year, the beginning reserve may not equal the ending reserve of the prior year.

Source: SNL Financial LC.

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INSURERS' LEGAL DEFENSE COSTS

Lawsuits against businesses affect the cost of insurance and the products and services of the industries sued. According to Towers Watson, an actuarial consulting firm, the American civil liability (tort) system cost about $265 billion in 2010 in direct costs, up from $180 billion in 2000. Tort costs rose 5.1 percent in 2010 after dropping 1.2 percent in 2009. Absent payouts from the April 2010 Deepwater Horizon drilling rig explosion, tort costs would have shown an overall decrease of 2.4 percent in 2010, according to Towers Watson. The U.S. tort system cost $857 per person in 2010, up from $820 per person in 2009.

Most lawsuits are settled out of court. Of those that are tried and proceed to verdict, Jury Verdict Research data show that in 2012 the median, or midpoint, plaintiff award in personal injury cases was $75,000, up 87.5 percent from $40,000 in 2008.

Insurers are required to defend their policyholders against lawsuits. The costs of settling a claim are reported on insurers’ financial statements as “defense and cost containment expenses incurred.” These expenses include defense, litigation and medical cost containment. Expenditures for surveillance, litigation management and fees for appraisers, private investigators, hearing representatives and fraud investigators are included. In addition, attorney legal fees may be incurred owing to a duty to defend, even when coverage does not exist, because attorneys must be hired to issue opinions about coverage. Insurers’ defense costs as a percentage of incurred losses are relatively high in some lines such as products liability and medical malpractice, reflecting the high cost of defending certain types of lawsuits, such as medical injury cases and class actions against pharmaceutical companies. For example, in addition to $1.6 billion in products liability incurred losses in 2013, insurers spent another $1.2 billion in settlement expenses, equivalent to 75.1 percent of the losses.

 

DEFENSE COSTS AND COST CONTAINMENT EXPENSES AS A PERCENT OF INCURRED LOSSES, 2011-2013 (1)

($000)

  2011 2012 2013
  Amount As a percent
of incurred losses
Amount As a percent
of incurred losses
Amount As a percent
of incurred losses
Products liability $1,140,230 72.0% $873,860 114.7% $1,166,236 75.1%
Medical malpractice 1,793,296 57.5 1,686,009 45.7 1,656,049 53.3
Commercial multiple peril (2) 1,896,935 37.6 2,022,739 46.0 2,096,543 37.7
Other liability 4,464,140 25.0 4,959,838 24.8 4,914,106 25.4
Workers compensation 3,087,836 12.6 3,071,093 12.3 3,012,719 12.3
Commercial auto liability 960,961 10.3 1,091,434 10.4 1,207,596 10.7
Private passenger auto liability 3,960,967 6.2 4,353,427 6.7 4,600,395 6.8
All liability lines $17,304,365 13.8% $18,058,400 13.9% $18,653,644 14.0%

(1) Net of reinsurance, excludes state funds.
(2) Liability portion only.

Source: SNL Financial LC.

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MEDIAN AND AVERAGE PERSONAL INJURY JURY AWARDS BY TYPE OF LIABILITY, 2013

(1) Represents the midpoint jury award. Half of the awards are above the median and half are below.

Source: Reprinted with permission of Thomson Reuters, Current Award Trends in Personal Injury, 54th edition.

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PERSONAL INJURY AWARDS

In 2013 the median (or midpoint) award in personal injury cases was $68,218, down from $75,000 the previous year, according to the Jury Verdict Research series published by Thomson Reuters. The average award dropped to $1,009,788 from $1,045,048, during the same period. Thomson Reuters notes that average awards can be skewed by a few very high awards and that medians are more representative. In cases of products liability the highest median award was in industrial/construction products cases ($2,541,000). In disputes concerning medical malpractice the highest median award was in childbirth cases ($2,160,420). In cases involving business negligence the highest median award was against transportation industries ($588,500).

Awards of $1 million or more accounted for 16 percent of all personal injury awards in 2012 and 2013, up from 14 percent in the prior two-year period. In 2012 and 2013, 71 percent of products liability awards and 53 percent of medical malpractice awards amounted to $1 million or more, the highest proportion of awards. Vehicular liability and premises liability cases had the lowest proportion of awards of $1 million or more, at 7 percent and 12 percent, respectively.

 

TRENDS IN PERSONAL INJURY LAWSUITS, 2009-2013 (1)

Year Award median Probability range (2) Award range Award mean
2009 $40,000 $9,887 - $207,828 $1 - $77,418,670 $750,392
2010 39,216 10,000 - 200,000 1 - 71,000,000 653,898
2011 60,924 12,249 - 343,958 1 - 58,619,989 782,657
2012 75,000 18,975 - 350,000 1 - 155,237,000 1,045,048
2013 68,218 15,647 - 300,000 1 - 165,972,503 1,009,788
Overall $45,001 $10,170 - $250,000 $1 - $188,000,000 $825,804

(1) Excludes punitive damages.
(2) 25 percent above and below the median award. The median represents the midpoint jury award. Half of the awards are above the median and half are below. This helps establish where awards tend to cluster.

Source: Reprinted with permission of Thomson Reuters, Current Award Trends in Personal Injury, 54th edition.

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AVERAGE PERSONAL INJURY JURY AWARDS, 2009-2013

Source: Reprinted with permission of Thomson Reuters, Current Award Trends in Personal Injury, 54th edition.

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CASUALTY COST OF RISK PER $1,000 OF REVENUE, 2006-2007

Source: Marsh Inc.

  • The casualty cost of risk per $1,000 of revenues dropped by 6 percent from $1.88 in 2006 to $1.77 in 2007 for companies surveyed by Marsh in both years. The overall drop was 23 percent in 2007, taking into account new and repeat participants.

DIRECTORS AND OFFICERS LIABILITY INSURANCE

Directors and officers liability insurance (D&O) covers directors and officers of a company for negligent acts or omissions and for misleading statements that result in suits against the company. There are various forms of D&O coverage. Corporate reimbursement coverage indemnifies directors and officers of the organization. Side-A coverage provides D&O coverage for personal liability when directors and officers are not indemnified by the firm. Entity coverage for claims made specifically against the company is also available. D&O policies may be broadened to include coverage for employment practices liability (EPL). EPL coverage may also be purchased as a stand-alone policy.

Sixty-four percent of corporations purchased D&O coverage in 2014 according to the Cost of Risk survey from the Risk and Insurance Management Society, based on a survey of 1,457 corporations. Banks were the most likely to purchase D&O coverage, with 87 percent of industry respondents purchasing the coverage, followed by 85 percent of respondents in telecommunication services. JLT PARK Ltd.’s 2015 Specialty U.S. Director and Officers Liability Survey of 157 U.S. organizations that purchase D&O liability insurance found that the group’s average D&O limits that were purchased was $131 million and the median limit purchased was $105 million. For public companies the average limit was $170 million. For private companies the average was $98 million. Twenty-four percent of public companies and 17 percent of private companies increased their D&O limits from their previous purchase. According to the 2015 survey 31 percent of respondents reported having had a claim in the past five years, with nonprofits reporting the highest proportion of claims (58 percent).

 

TYPES OF DIRECTORS AND OFFICERS LIABILITY CLAIMS BY OWNERSHIP, 2011-2014 (1)

(1) Based on participants in the survey that reported one or more claims over the five-year period.

Source: 2015 JLT Specialty U.S. Directors and Officers Liability Survey, JLT PARK Ltd.

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  • The percentage of respondents reporting derivative shareholder/investor lawsuits, the most widespread claim, dropped from 40 percent in 2012 to 39 percent in 2013.
  • Regulatory claims fell fastest, dropping to 12 percent in 2013 from 23 percent in 2012.

 

DIRECTORS AND OFFICERS LIABILITY CLAIMS BY TYPE OF CLAIMANT IN THE UNITED STATES, 2011-2014 (1)

(1) Based on participants in the survey that reported one or more claims over the four-year period.

Source: 2015 JLT Specialty U.S. Directors and Officers Liability Survey, JLT PARK Ltd.

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DIRECTORS AND OFFICERS LIABILITY CLAIMS BY BUSINESS OWNERSHIP, 2002-2011 (1)

(1) Based on participants in the survey that reported one or more claims over the 10-year period.

Source: 2011 Directors and Officers Liability Survey, Towers Watson.

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EMPLOYMENT PRACTICES LIABILITY

Employment practices are a frequent source of claims against directors, officers and their organizations. Organizations that purchase insurance for employment practices liability (EPL) claims typically either buy a stand-alone EPL insurance policy or endorse their directors and officers liability (D&O) policy to cover employment practices liability. In 2013, 11 percent of public companies responding to a JLT Park survey shared or blended their D&O limits with another coverage such as EPL or fiduciary liability, compared with 49 percent of private companies and nonprofits.

In 2014, 35 percent of the 1,457 respondents to the 2014 Cost of Risk survey from the Risk and Insurance Management Society said they bought EPL policies. Banks were the most likely to purchase EPL coverage, with 59 percent of industry respondents purchasing the coverage, followed by telecommunications services (48 percent), consumer staples (46 percent), and consumer discretionary firms (45 percent). American International Group Inc. was the leading writer, based on EPL premiums written, with a 25.9 percent market share in 2014, followed by Chubb Corporation (11.5 percent), AXIS Capital Holdings Limited (10.9 percent), Zurich Insurance Group Ltd. (10.3 percent), and The Travelers Companies Inc. (5.7 percent).

 

TRENDS IN EMPLOYMENT PRACTICES LIABILITY, 2009-2013

Year Median (midpoint) award Probability range (1)
2009 $207,235 $60,000 - $600,281
2010 172,000 50,000 - 385,000
2011 271,000 82,121 - 555,000
2012 65,460 11,000 - 249,081
2013 109,300 25,000 - 258,564

(1) The middle 50 percent of all awards arranged in ascending order in a sampling, 25 percent above and below the median award.

Source: Reprinted with permission of Thomson Reuters, Employment Practice Liability: Jury Award Trends and Statistics, 2014 edition.

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EMPLOYMENT PRACTICES LIABILITY, BY DEFENDANT TYPE, 2007-2013 (1)

(1) Based on plaintiff and defendant verdicts rendered.

Source: Reprinted with permission of Thomson Reuters, Employment Practice Liability: Jury Award Trends And Statistics, 2014 edition.

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SHAREHOLDER LAWSUITS

Cornerstone Research has conducted annual studies of securities class-action lawsuit settlements and filings each year since the passage of the 1995 Private Securities Litigation Reform Act, enacted to curb frivolous shareholder lawsuits.

Filings

The number of securities class-action lawsuits filed rose 9.2 percent to 166 in 2013 from 152 in 2012, according to Cornerstone’s 2013 study. The 166 filings in 2013 compare with an annual average of 191 recorded between 1997 and 2012. In 2013 healthcare, biotechnology and pharmaceutical companies accounted for 21 percent of total filings. Filings related to the financial crisis as well as mergers and acquisitions and Chinese reverse merger filings have continued to subside. Reverse mergers involve the acquisition of a private company by a public “shell” company, giving it access to capital markets.

Settlements

Total settlement dollars in court-approved securities class actions in 2014 dropped to the lowest level in 16 years according to Cornerstone Research. The average settlement amount fell to the lowest level since 2000 at the same time. However, the number of securities class action settlements was almost unchanged from year ago, 63 in 2014 versus 67 in 2013. Reflecting an absence of large cases, total settlement dollars fell 78 percent, to $1.1 billion in 2014 from $4.8 billion in 2013. In 2014 the percentage of settlement dollars from mega-settlements (i.e., those in excess of $100 million) was the lowest in 16 years. The median settlement amount, which represents the typical case, fell slightly, to $6.0 million in 2014 from $6.6 million in 2013, although the average settlement size fell faster, to $17 million in 2014 from $73.5 million in 2013.

 

POST-REFORM ACT SETTLEMENTS OF SECURITIES LAWSUITS, 1996-2014 (1)

(2014 dollars)

  1996-2013 2014
Minimum $0.1 million $0.3 million
Median 8.3 million 6.0 million
Average 57.2 million 17.0 million
Maximum 8.5 billion 265.0 million
Total settlements $79.8 billion $1.1 billion

(1) Private Securities Litigation Reform Act of 1995; adjusted for inflation by Cornerstone Research.

Source: Cornerstone Research.

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