Legal Environment

As European governments approved a controversial plan to share 120,000 refugees between most of the European Union countries, there’s an important insurance story playing out amid the ongoing flow of thousands of refugees into Europe.

The risk management challenges and costs for freight transporters, haulers and shipowners arising from the refugee crisis are outlined in a recent Business Insurance article.

It reports that with thousands of refugees attempting to board trains and trucks heading for the United Kingdom at the French port of Calais this has caused problems for companies transporting goods.

Some of the risks they face include potential loss of earnings due to delays at ports, risk of damage to goods, fines for illegally transporting refugees if they board trucks undetected as well as driver safety.

Shipowners must also have emergency procedures in place to help their crews deal with situations given their legal and moral obligation to help ships in distress, Business Insurance notes.

A Reuters report suggests that more and more commercial ships are being drawn in to rescue refugees from unsafe and overloaded vessels in the Mediterranean:

Since January 2014, more than 1,000 merchant ships have helped rescue more than 65,000 people, according to estimates from the International Chamber of Shipping. That’s more than one in 10 of the estimated 585,000 migrants and refugees who crossed the Mediterranean over the period.”

Some of the merchant ships’ risks are covered by insurance, Reuters says.

Mutual marine insurers, also known as P&I clubs, provide cover for a wide range of liabilities including crew injury, pollution and cargo loss and damage.

So, if a refugee attacks and injures a crew member or breaks into a container and damages cargo, insurance would cover the shipowner.

But because rescue operations can take ships off course into uncharted waters, Reuters reports that other risks including fines for late arrival or the cost of chartering another vessel at short notice may not be covered.

Uncertainties also surround liability in the case of death or injury of a refugee while being rescued by a ship’s crew.

In June the Maritime Safety Committee (part of the International Maritime Organization) agreed that there was an urgent need for the international community to make greater efforts to address the problem through safer and more regular migration pathways, and to take action against criminal smugglers.

Check out I.I.I. facts and statistics on marine accidents here.

June is Pride month and our annual round-up of the latest insurance news around the LGBT (lesbian, gay, bisexual and transgender) community takes on added significance with today’s U.S. Supreme Court decision on same-sex marriage.

The Supreme Court decision in Obergefell v Hodges means that the U.S. Constitution guarantees a right to same-sex marriage in all 50 states. This has a number of implications for health, life, and auto insurance.

For example, health and life benefits that currently exist in states that recognize same-sex marriage will–once the law goes into effect–extend to all states.

Some of these benefits include: coverage of a same-sex spouse and children under health insurance plans; equal tax treatment of health insurance premiums for married gay couples; and recognition of a spouse for survivor benefits, including social security and life insurance.

For auto insurance offerings, too, this means that LGBT customers who are married will be entitled to the married rate, regardless of where they live.

Esurance, one of the first car insurers to extend the married rate to LGBT customers, points to what equality means for auto insurance in a just-issued press release here.

For LGBT couples who are married or are planning to get married, Esurance offers the following advice:

In addition to saving money with the married rate, married couples in states newly recognizing same-sex marriage can be identified as a spouse on their partner’s insurance policy. This will allow them to receive additional benefits on that policy such as coverage while driving a rental or borrowed car.

Until the ruling goes into effect in individual states, Esurance will continue to extend its married rate to either married gay couples, domestic partners or those in civil unions—even in states that have yet to recognize same-sex marriage. Something it has done since 2011.”

Survey more than 800 corporate counsel representing companies across 26 countries on litigation trends and issues and you get some insightful findings.

Such is the case with the recently released Norton Rose Fulbright 2015 Litigation Trends Annual Survey.

For example, class action lawsuits were listed as the top issue by respondents in the United States, Canada and Australia.

U.S.-based respondents also reported a more litigious business environment than their peers, with 55 percent facing more than five lawsuits filed against their companies in the previous 12 months, compared with 23 percent in the United Kingdom and 22 percent in Australia.

There are also significant differences in the types of litigation that U.S. companies face compared with their peers worldwide.

For example, personal injury litigation is much more prevalent in the U.S. than elsewhere, with 21 percent of those polled selecting it as one of the most numerous types of cases faced in the previous 12 months, compared to just 15 percent in the survey overall.

In addition, intellectual property/patents (18 percent) and product liability (17 percent) cases were more common in the U.S. than worldwide (13 percent and 11 percent, respectively).

Going forward, more U.S. respondents say regulatory/investigations are a top concern (48 percent) compared with the broader sample (39 percent).

Intellectual property (IP)/patents disputes are also of greater concern in the U.S. (30 percent) compared with all respondents (21 percent).

In addition, more U.S. respondents list class actions (25 percent) and product liability (18 percent) as top concerns compared with the total sample (18 percent and 14 percent, respectively).

In the words of Richard Krumholz, head of dispute resolution and litigation, United States, Norton Rose Fulbright:

Our survey clearly demonstrates that the litigation and regulatory environment in the United States continues to pose some of the greatest risks which businesses from around the world face. This is reflected in rising litigation budgets and the size of disputes-focused staff compared to peer companies around the globe.”

Just to be clear, the average U.S. company has 20 in-house lawyers to handle disputes and the number of U.S. companies with an annual litigation spend of $1 million or more increased from 52 percent to 69 percent from 2012 to 2014.

Slightly more than half of the survey respondents are from companies with headquarters in the U.S.

The Insurance Information Institute (I.I.I.) has an excellent resource on business liability insurance here.

National Dog Bite Prevention Week is coming up… Here are some numbers to consider:

  • • Dog bites caused more than 33 percent of all homeowners insurance liability claims in 2014, costing in excess of $530 million
  • • The average cost per claim has increased more than 67 percent from 2003 to 2014
  • • The number of dog-bite claims actually decreased by 4.7 percent but the average cost per claim increased 15 percent from $27,862 in 2013 to $32,072 in 2014
  • • California (1,867), Ohio (1,009) and New York (965) had the highest number of claims in 2014
  • • New York had the highest average cost per claim in the country: a whopping $56,628

Costs per claims have risen due to a variety of factors including increased medical costs and jury awards.  In addition to dog bites, some claims are due to dogs knocking down children, cyclists, the elderly, which can result in fractures and other injuries. All these factors impact the potential severity of losses.

Contact @LWorters for more information.

If you know someone who leads an active lifestyle, you may already know what a Fitbit is. For everyone else, a Fitbit is a wearable device that tracks steps, calories, distance and even sleep.

Now it appears data from wearable devices may be admissible in court. reports that a law firm in Calgary is working on the first known personal injury case that will use activity data from a Fitbit to help show the effects of an accident on their client.

According to the report, the young woman in question, who used to be a personal trainer, was injured in an accident four years ago. While Fitbits weren’t on the market back then, her lawyers believe they can use data from her Fitbit to show that her activity level has significantly decreased and is now below where it should be for someone of her age and profession.

The article suggests that “cases like this could open the door to wearable device data being used not just in personal injury claims, but in prosecutions.”

The young woman’s lawyer is also quoted saying that such data could be useful to insurers assessing questionable claims and that just as courts requisitioned Facebook for information several years ago a court order could compel disclosure of that data.

Sounds like another case where digital information has an unintended use in the courtroom.

As the number of companies suffering a data breach continues to grow – with U.S. retailer Staples now reported to be investigating a breach – so do the legal developments arising out of these incidents.

While companies that have suffered a data breach look to their insurance policies for coverage to help mitigate some of the enormous costs, recent legal developments underscore the fact that reliance on traditional insurance policies is not enough, notes the I.I.I. white paper Cyber Risks: The Growing Threat.

A post in today’s Wall Street Journal Morning Risk Report, echoes this point, noting that a lawsuit between restaurant chain P.F. Chang’s and its insurance company Travelers Indemnity Co. of Connecticut could further define how much, if any, cyber liability coverage is included in a company’s CGL policy.

Collin Hite, partner and leader of the insurance recovery group at law firm Hirschler Fleischer tells the WSJ that whatever the outcome of this case, companies that want to be sure they are protected against cyber-related losses may have to purchase separate cyber liability policies—and make sure those policies are broad enough to encompass the myriad ways an attack could cost the firm money.

P.F. Chang’s confirmed in June that it had suffered a data breach in which data from credit and debit cards used at its restaurants was stolen.

An earlier post in the Hartford Courant Insurance Capital blog by Matthew Sturdevant has the details on the legal action between Travelers and P.F. Chang’s.

To-date the application of standard form commercial general liability (CGL) policies to data breach incidents has led to various legal actions and differing opinions, according to the I.I.I. paper on cyber risks.

One recent high profile – and oft-cited case – followed the April 2011 data breach at Sony Corp. in which hackers stole personal information from tens of millions of Sony PlayStation Network users.

A New York trial court ruled that Zurich American Insurance Co. owed no defense coverage to Sony Corp. or Sony Computer Entertainment America LLC.

In his ruling, New York Supreme Court Justice Jeffrey K. Oing said acts by third-party hackers do not constitute “oral or written publication in any manner of the material that violates a person’s right of privacy” in the Coverage B (personal and advertising injury coverage) under the CGL policy issued by Zurich.

Further expertise and analysis on cyber risks and insurance is available from the I.I.I.

Growth in U.S. liability claims could accelerate to 5-6 percent in the near future, according to a just-released report by Swiss Re sigma.

The slowdown in U.S. liability claims paid after 2008, primarily due to economic drivers such as the recession and weak recovery, is expected to reverse.

Why the change?

Cyber risk and the liability from emerging technologies including hydrofracking and autonomous cars, combined with stronger economic growth will drive liability claims costs higher, sigma says.

Interestingly the report suggests that the effects of tort reform, which contributed to a slowdown in claims growth in the mid-2000s in the U.S., were a one-off benefit and will no longer suppress claims growth to the same degree.

It notes:

Often these types of reform have only a temporary effect on claims growth, which fades as the rules eventually soften again or the legal profession learns how to optimize the pursuit of claims in the new framework.”

Tort reform in the U.S. has focused on medical malpractice and class action claims, the report says.

Many early studies concluded that medical malpractice reforms such as limits on lawyers’ fees and non-economic compensation were effective in reducing medical malpractice liability. However, some of these caps were later overturned by state supreme courts.

Despite passage of the Class Action Fairness Act in 2005, empirical evidence on the effects of federal class action reform in the U.S. remains inconclusive, sigma adds.

The report also warns that litigation funding, in which a third-party funding company pays the costs of litigation and is paid only if the litigation is successful, is still in its infancy in the U.S. but developing.

There are fears it will grow, driving up litigation and future claims costs for insurers.”

Check out this I.I.I. backgrounder on the U.S. liability system here.

Sporting organizations around the world and their liability insurers have to be keeping a close eye on the latest developments in a multi-million dollar settlement which will see the National Football League (NFL) pay out an uncapped amount to compensate retired football players suffering from certain severe concussion-related neurological conditions.

A federal judge approved the preliminary revised settlement yesterday after the original $765 million settlement proposed by the NFL was rejected by U.S. District Court Judge Anita B. Brody in January over concerns that the amount would not be enough to cover the claims from more than 20,000 retired players over the 65-year life of the settlement.

Concerns have been growing over the risks of sports-related concussions in recent years since the filing of the first lawsuits by injured professional football players against the NFL in 2011.

Young people participating in a range of sports including soccer, basketball and ice hockey are also affected. The Centers for Disease Control and Prevention estimates that 173,285 sports- and recreation-related traumatic brain injuries (TBI), including concussions, among children and adolescents are treated in U.S. emergency rooms annually.

The New York Times reports that despite being uncapped, the new settlement does allow the NFL to contest an unlimited number of requests for awards by retired players as a way to prevent fraudulent claims.

Retired players will receive packets explaining the terms of the settlement over the coming weeks and players will be deemed to be in favor of the deal unless they opt out, which would preserve their legal rights, the NYT says. They can also object to parts of the deal.

A fairness hearing on the settlement is scheduled for November 19 in Philadelphia.

The settlement provides for a $75 million baseline assessment program that will offer all retired NFL players baseline neuropsychological and neurological evaluations to determine the existence and extent of any cognitive defects.

The 65-year monetary award fund will award cash to retired NFL players who already have a qualifying diagnosis or receive one in the future.

The court order details potential awards for qualifying diagnoses of up to $3.5 million for neurocognitive impairment, $3.5 million for Alzheimer’s Disease and Parkinson’s Disease, $5 million for amyotrophic lateral sclerosis (ALS), and $4 million for players who die with chronic traumatic encephalopathy.

The awards may be reduced based on a retired player’s age at the time of diagnosis, the number of NFL seasons played, and other offsets outlined in the settlement.

Business Insurance reports that the settlement approval notes that players who receive awards from the NFL fund are not required to release claims against the NCAA (National Collegiate Athletic Association) or any other amateur football organizations for concussion claims.

A 2013 article by then National Underwriter reporter Chad Hemenway provides invaluable insight into sports-related traumatic brain injuries and how the legal fallout may change the way sports are insured.

Check out I.I.I. facts and stats on sports injuries.

While the number of lawsuits filed against U.S. companies in the past year was stable, the financial impact of the litigation they face continues to increase, according to Norton Rose Fulbright’s Annual Litigation Trends Survey.

More than one-third (34 percent) of all companies faced at least one lawsuit with more than $20 million at issue in 2013, up from just 23 percent in 2011, continuing a trend in recent years that’s left fewer respondents untouched by high-value cases.

Energy companies are much more likely to have one or more large lawsuits pending against them compared to other industries (52 percent versus 34 percent for the total sample), the study found, as are larger companies generally (51 percent versus 34 percent for the overall sample).

Among the largest companies surveyed (revenue greater than $5 billion), two-thirds reported having one or more lawsuits greater than $20 million pending against them, twice the rate for the overall sample.

Meanwhile, the percentage of larger companies spending $10 million or more annually on litigation increased to 43 percent in 2013 – the second consecutive year of growth (33 percent in 2012, 19 percent in 2011).

Another key takeaway from this year’s study is that healthcare industry respondents had the most litigation matters compared with other industries, with 55 percent indicating more than 20 suits versus 30 percent for the overall sample.

That increased activity also led to higher spending, with 49 percent of healthcare respondents reporting a 2013 litigation spend of $5 million or more, closely followed by energy at 46 percent.

The percentage of financial services companies spending $5 million or more on litigation more than doubled to 38 percent in 2013, up from 15 percent in 2012 and just 11 percent in 2011.

Labor and employment disputes once again were the most common litigation issues facing U.S. companies in 2013.

The number of U.S. companies facing regulatory proceedings increased for the third consecutive year, reflecting a stricter regulatory environment and increased scrutiny from a broad range of state and federal agencies.

Not surprisingly, legal counsel concerns over regulatory/investigation matters are also up sharply in the 2013 survey, with 41 percent of respondents indicating it as a top concern, versus just 23 percent in 2012.

Norton Rose Fulbright’s 10th annual litigation trends survey of corporate law departments in the U.S. saw responses from a total of 401 senior corporate counsel executives representing a broad range of industries.

Job bias charges reported to the U.S. Equal Employment Opportunity Commission (EEOC) dropped to 93,727 in fiscal year 2013, down 5.7 percent from 99,412 charges in 2012, and a 6.6 percent decrease from the record 99,947 charges reported in fiscal year 2011.

But the decline in the number of charges was offset by an increase in the amount of monetary relief obtained for victims.

Monetary relief obtained for victims increased by $6.7 million to $372.1 million – the highest monetary recovery from private sector employers in agency history through its administrative process, the EEOC said.

As in prior years, retaliation under all statutes was the most frequently cited basis for charges of discrimination, increasing in both actual numbers (38,539 up from 37,836) and as a percentage of all charges (41.1 percent up from 38.1 percent) from the previous year.

This was followed by race discrimination (33,068/35.3 percent); sex discrimination, including sexual harassment and pregnancy discrimination (27,687/29.5 percent); and discrimination based on disability (25,957/27.7 percent).

The EEOC noted that both race and disability discrimination increased in percentage of all charges while decreasing in raw numbers from the previous year, while charges of sex discrimination were down by over 2,600 charges.

The EEOC also received 333 charges under the Genetic Information Nondiscrimination Act, which prohibits discrimination on the basis of genetic information, including family medical history.

Despite the overall positive trend, employers should remain vigilant, legal experts say.

In a post on legal newsfeed Lexology, Hannesson Murphy, a partner at law firm Barnes & Thornburg, writes:

While employers should be encouraged by current trends, this is no time to let down their guard: EEOC charges remain well above the levels of the mid-1990’s or mid-2000’s, retaliation claims are on the rise, and the EEOC is as active as ever. In short: remain vigilant.”

Check out further I.I.I. facts and statistics on employment practices liability insurance here.

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