Legal Environment


Environmental pollution stories seem to be dominating the headlines and with this comes renewed awareness of potential environmental liabilities among companies, municipalities and their (re)insurers.

An ongoing gas leak at the Southern California Gas Co Aliso Canyon natural gas storage facility near the Porter Ranch suburb of Los Angeles, has forced thousands of residents to evacuate, many of whom have been experiencing health problems.

The Los Angeles Times reports that so far, the gas company has spent more than $50 million to combat the methane leak that began October 23, and more than 25 lawsuits have been filed against the utility.

A securities filing last week stated that the cost of defending the lawsuits, and any damages, if awarded, could be significant.

As the LA Times reports:

The utility has told the U.S. Securities and Exchange Commission that it had “at least four types of insurance policies that it believes will cover many of the current and expected claims, losses and litigation…associated with the natural gas leak at Aliso Canyon.”

Those insurance policies are understood to have a combined available limit in excess of $1 billion, though legal experts suggest the ultimate costs could run much higher.

Meanwhile, officials in Flint, Michigan, made a cost-saving decision to switch the source of their drinking water to the Flint River from Lake Huron in April 2014, a move that has exposed thousands of children to dangerous levels of lead.

While the city has since switched back to Lake Huron water, and started distributing water filters and bottled water to the city’s residents, The New York Times reports that many have called for state money to replace Flint’s aging pipe infrastructure (at an estimated cost of $1.5 billion) and a fund to address any developmental impact on children.

Last week Michigan governor Rick Snyder declared the city to be in a state of emergency just as federal officials opened an investigation into the water contamination.

Other environmental pollution stories in the news include one lawyer’s fight against DuPont’s decades-long history of chemical pollution and further away the recent Samarco dam burst in Brazil—described as the worst environmental disaster in the country’s history.

In a recent note AIG Environmental Insurance said that environmental pollution continues to be a major source of concern for the (re)insurance market.

AIG noted that the potential environmental liability impact of the Samarco dam burst remains the unknown factor, with market sources putting the overall insured coverage at in excess of $600 million.

Taken together with the property and business interruption elements of the cover, the (re)insurance market is facing a potential overall loss that could be in excess of $1 billion.”

“Clear rules that are fit for the digital age.” That’s how Vera Jourova, the European justice commissioner, described tough new European data protection regulations just agreed by European policy makers.

The long-awaited reforms, which are expected to take effect in early 2018, will establish one set of rules on data protection across all 28 member nations in the European Union (EU).

As the New York Times reports, the new regulations would apply to any company with customers in the EU, whether or not it is based in the region.

This will expand potential liability for companies, experts note.

What key changes can businesses active in the EU market expect?

Among the policy changes the new law would require companies to inform national regulators within three days of any reported data breach.

The other proposed change that jumps off the page is one that would link sanctions (read: fines) to company revenues.

Policymakers have agreed that fines could total up to 4 percent of a company’s global revenue for the most serious breaches to European data privacy rules. This could amount to billions of dollars, according to this report by the Guardian.

While the tougher fines are seen as a major step forward for consumer protection, they have raised concerns among large tech companies such as Google and Facebook, the NYT says.

It cites Peter Church, a technology lawyer at Linklaters in London:

Europe’s approach to privacy is much stronger than in the United States. There’s a fundamental difference in culture when it comes to privacy.”

The new law will also expand potential liability for companies, bringing increased responsibility and accountability for those controlling and processing personal data, according to this politico.eu article.

Currently the data controller at a company is liable for data breaches in the EU, but Politico notes that once the law takes effect, both the controller and data processors will be jointly liability for any damages.

If you’re a small or medium-sized business with fewer than 500 employees you might think that none of your employees would file discrimination charges against your company.

But a just-released survey by Hiscox dispels that myth, showing just how costly employment matters can be for small and medium-sized enterprises (SMEs)—and how important it is to have employment practices liability (EPL) insurance.

A representative study of 446 closed claims reported by SMEs with fewer than 500 employees found that some 19 percent of employment charges resulted in defense and settlement costs averaging a total of $125,000. On average, those matters took 275 days to resolve, Hiscox found.

While the average self-insured retention (deductible) for these charges was $35,000, without employment practices liability insurance, these companies would have been out of pocket by an extra $90,000, Hiscox said.

“Most employment matters don’t end up in court, but for those that do, the damages can be substantial,” Hiscox noted.

Its survey cites data showing the median judgment is approximately $200,000, which is in addition to the cost of defense. About 25 percent of cases result in a judgment of $500,000 or more.

Where a business is located can make a big difference in the potential employment exposure it faces.

The 2015 Hiscox Employee Lawsuit Handbook found states with the highest risk of employees filing lawsuits are: New Mexico (66 percent higher than national average), Washington DC (65 percent higher), Nevada (47 percent higher), Alabama (41 percent higher) and California (40 percent higher).

Overall, U.S.-based companies of all sizes have at least an 11.7 percent chance of having an employment charge filed against them, Hiscox found.

Claims Journal has more on this story here.

Wondering what’s covered by EPL insurance? The Insurance Information Institute (I.I.I.) explains all here.

 

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.

Forbes.com 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.

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