Most recently, New Jersey legislators reportedly announced a bill that would permit recreational marijuana. If signed into law, New Jersey would join ten other states and D.C. that currently permit recreational marijuana. More than 30 states and D.C. also permit medical marijuana programs of some kind.
But as legalization spreads, concerns about driving under the influence of marijuana continue unabated.
Today, the I.I.I. has published a report that examines the current state of the issue.
“A rocky road so far: Recreational marijuana and impaired driving” dives into the hazy questions surrounding marijuana impairment: its effects on driving abilities, how traffic safety might be impacted, and how states are grappling with the issue of “stoned driving.” (Download the report here.)
Unfortunately, there are still many unknowns when it comes to stoned driving. Marijuana impairment degrades cognitive and motor skills, of course – but marijuana-impaired driving is an evolving issue with many questions and few concrete answers. Legalization is still relatively recent. Data are still being gathered. How to understand and measure marijuana impairment are still open questions.
Do the rates of marijuana-impaired driving increase following recreational legalization? Answer: probably. Does marijuana-impaired driving increase crash risks? Answer: probably, but we still don’t concretely know to what degree. What about traffic fatalities – do those increase after legalization? There’s evidence that traffic fatalities could increase following legalization, but there is still quite a bit of discussion about this issue.
There is active research, discussion and debate being conducted to answer these and other questions. As more states legalize recreational marijuana, forthcoming answers will become ever more critical to help best guide public policy and traffic safety initiatives.
I’m going to get a little wonky here, bear with me.
The standard homeowners insurance policy only explicitly mentions the word “marijuana” once: to exclude it from liability coverage. Basically, the policy says that the insurer won’t pay for any bodily injuries or property damage to another person arising out of any controlled substance, including marijuana.
But there’s an interesting wrinkle to this. The exclusion also states the following: “However, this exclusion does not apply to the legitimate use of prescription drugs by a person following the orders of a licensed physician.”
“Wait,” you say. “Isn’t there a conflict here? Wouldn’t the policy cover damages from medical marijuana, since it’s a prescription drug?”
Sorry to rain on your parade, but the answer is no.
All together now: Medical marijuana is not a prescription drug
But medical marijuana is not a prescription drug under any state’s current medical marijuana program.
Physicians don’t “prescribe” marijuana like they do painkillers and other drugs. Rather, physicians will “certify,” “recommend,” or “authorize” (the exact wording depends on the state) that a patient qualifies under a state program to purchase marijuana products. Often this qualification depends on whether a patient suffers from any of a list of “qualifying conditions” – which vary by state.
With a “recommendation” in hand, the patient can then purchase medical marijuana products from a dispensary, subject to various state-specific limitations (like how much marijuana they can buy in any given month).
“Prescription”, on the other hand, has a specific meaning. The Kansas City Medical Society notes that medical drugs are supported by years of study that can provide guidelines for dosages and plans of care. The U.S. Food and Drug Administration regulates these drugs. Patients with a prescription receive these drugs from a certified pharmacist.
Not so with marijuana. Though some states do require physician dosage recommendations, these are not well understood. The FDA has “not approved marijuana as a safe and effective drug for any indication.” Medical marijuana dispensaries are not pharmacies. They don’t employ pharmacists. The people selling the marijuana are basically like knowledgeable sommeliers at a fancy liquor store.
Picture a world where sophisticated machine-learning algorithms generate hyper-realistic video footage of you doing things you’ve never done and saying things you’ve never said.
If that sounds like a nightmare, I’ve got bad news for you. That world is increasingly our world. Those videos, called “deepfakes,” are already being created, often for unsavory purposes.
(You can watch a deepfake video of former president Obama giving a fake speech here.)
Anyone can download the software needed for DIY deepfake videos. And even though deepfake technology hasn’t yet been perfected, it’s getting better every day.
This has obvious implications for national security. Indeed, congressmen have already expressed concerns about the use of deepfakes as weapons of international intrigue.
What about insurance – could deepfakes be the next frontier of risk? It’s not hard to imagine some scenarios:
Cyber: A deepfaked audio recording of a CFO directs a company’s billing department to route thousands of dollars to a fake bank account.
Directors and officers: A deepfake video is created of a large corporation’s CEO reporting (fabricated) negative financial results, leading to a significant drop in the company’s stock.
Employment-practices liability: An employee is “deepfaked” to portray him making disparaging remarks about coworkers and engaging in harassment.
General liability: Someone creates a deepfake video of a person slipping in a grocery store and “injuring” herself, leading to allegations of negligence.
I’m sure you could think of a hundred more like these. How will we adapt to a world where video and audio can’t be trusted to tell the truth? What if deepfakes become too sophisticated to detect – how will this impact insurance claims and fraud prevention?
If the worst comes to pass, deepfakes could soon become an insurance nightmare.
Now let’s talk a little bit about homeowners insurance and marijuana.
Except for Manitoba and Quebec, all Canadian provinces will let people grow a small amount of marijuana at home – usually up to four plants.
Unfortunately for the aspiring bud-growers out there, growing pot isn’t as easy as growing basil. Marijuana is a fickle weed and needs a lot of care to grow into a viable plant. It can be grown outside or on the window-sill, but a healthy and vibrant marijuana especially likes a hot, light-intensive, steamy environment – not exactly an accurate description of Canada’s climate.
Which is why a whole industry has grown up around providing home-growers with hydroponic, lighting, and climate control systems to grow pot indoors, safely tucked away from the blinding snows and sub-zero temperatures of a Canadian winter.
How will home-grown marijuana affect homeowners insurance?
Higher risks. Well, for one, these grow systems are definitely not risk-free. High-intensity heat lamps can mean a strung-out electrical system, which can lead to fires. Humid temperature controls mean lots of moisture, which can damage your house with mold and fungi growths.
Higher premiums. Higher risks mean that an insurance company will probably ask for more premium to make up the difference. A spokesperson for the Insurance Bureau of Canada has been quoted as saying that insurers asking about home-grown pot may become routine: “[insurers] just want an accurate idea of what you’re doing and any risk factors that should go into determining your premium […] they’re going to underwrite your policy based on a number of factors. It’s just another factor that gets consideration when setting an insurance premium.”
Coverage questions. It’s also important to know what your insurance does and does not cover. For example, some damage caused by mold or fungi is often excluded by a standard homeowners policy. And most policies limit the amount of money an insurer will pay for damaged plants. This limit might not always be high enough to reimburse for marijuana plants, which can be pretty valuable.
So if you’re a Canadian planning to use a marijuana grow system at home, talk to your insurer – especially if you’ll be installing complicated equipment.
Insurance claims are happening more often and they’re getting a lot more expensive – fast. The consequences are alarming. Premiums are rising for consumers and businesses. Coverage is getting scarce for some risks. Some insurers are increasingly concerned about how to keep liability insurance sustainable into the future.
But why are bigger claims happening more often? And what can the insurance industry do about it?
Advisen Ltd. held its inaugural “Big Nasty Claims Conference” on September 20 to explore these and other questions, featuring expert insight from across the insurance value chain: defense counsels, brokers, claims and insurance professionals, and risk managers.
Plaintiff’s attorney litigation strategies have evolved – and are paying off big
You’ve seen the headlines. $4.69 billion verdict for women alleging that talc baby powder caused ovarian cancer. $101 million verdict for a driver allegedly injured after his car was struck by a truck. The list could go on for what seems like forever.
And if it feels like these are unprecedented numbers happening at unprecedented rates, that’s because they are. There’s been a remarkable uptick in punitive damages from claims that went to trial, noted Jonathan Drummond, Head of Casualty – North America at Willis Towers Watson.
John Manning, keynote speaker at the conference and partner at Manning Gross & Massenburg LLP, made the case that some of this uptick is because of new plaintiff’s attorney litigation tactics. Using the so-called “reptile strategy” (based on this 2009 book), plaintiff’s attorneys have been successfully creating massive risks from what used to be fairly straightforward claims.
The reptile strategy involves appealing to what is known as the reptile brain — the part of the brain said to favor safety and survival over logic. What this often means in the courtroom is a subtle distortion of legal standards and burdens of proof. Manning argued that this allows plaintiff’s attorneys to essentially re-define “negligence” in the jurors’ minds to mean the failure of a company to be absolutely perfect and absolutely safe (a far cry from the actual legal standard).
Naturally, this standard of perfection is impossible to uphold. But the reptile strategy’s use of emotional appeal to waive away the need for actual causation can influence the jury to demand compliance with the impossible – and hence multi-million or billion-dollar verdicts against companies whose products might have posed only the slightest possible risk of danger, if at all.
This is particularly true in what Christopher Morrison, Senior Vice President at Swiss Re, called “high sympathy, high damages” claims with low liability – that is, claims where liability is pretty straightforward. He explained that these are the cases where the plaintiff’s attorneys are willing to take risks to move the needle away from traditional legal standards because, to win a big settlement, liability needs to be proven beyond the scope of the actual facts of the case.
The consequences of this strategy are impacting traditional legal standards themselves. Manning said that, in his view, the reptile strategy is “the number one factor in moving the line of demarcation of burden of proof for negligence and causation analysis.” “There’s a lot more ‘next asbestos’ if they [the plaintiffs’ bar] don’t have to prove medical causation at the trial,” he added, referencing the recent ruling regarding Monsanto’s Roundup weed killer.
Same old claims, new massive losses
These massive verdicts coming out of claims litigation are having a trickle-down effect. Claims settlement costs are also increasing, absent any trial – because huge verdicts mean a new “floor” for what a plaintiff’s attorney will demand in settlements. As Mia Finsness, Managing Director of Casualty Claims at Markel Corporation, noted, “one runaway verdict can drive the whole discussion on what settlements look like – you get massive settlements before you get to trial because plaintiff’s attorneys will just say they want huge money and that sets a floor.”
“Loss costs in casualty have always been increasing,” said Andy Barberis, Executive Vice President of Commercial Claims at AIG, “but over the last five to 10 years the increase has been exponential.” There doesn’t seem to exist a cap on where loss costs could end, he added, and these recent trends are of significant concern for the future sustainability of the insurance industry.
And not all verdicts need to be massive to have an effect. It was a running theme throughout the panels that claims that once cost $1 or $2 million to settle are now going for much more. “Things that used to be routine, we’re seeing a doubling or quadrupling of the verdicts,” said Kevin A. Maloney, Senior Vice President at Allied World. Over time, these individual increases can add up to big losses.
One panel was asked if “litigation financing” might have something to do with increasingly aggressive claims settlement on the part of the plaintiffs’ bar. (Litigation financing is when third-parties fund a plaintiff’s lawsuit in exchange for a portion of a settlement.) The short answer: a lack of transparency about when litigation is being financed by outside parties makes it hard to know if this is a widespread phenomenon. “Transparency is a real issue regarding funding. It’s hard to know they [financiers] even exist because right now there are few requirements for disclosure,” Finsness said.
Several lawyers said they had only incidentally found out third-parties were funding litigation, such as when a plaintiff’s attorney was very aggressively pursuing a high settlement and admitted to being funded.
Tort reform is unlikely, so strong legal defenses are crucial
Could tort reform help rein in aggressive litigation and massive verdicts? The mood at the conference was that the prospect for enactment of any meaningful tort reform is becoming an ever more unrealizable reality.
Instead, strong legal defenses that recognize and counter reptile strategies and other plaintiff’s attorney tactics are crucial.
For one, the conference experts stressed unity among parties to a defense; that is, making sure everyone is on the same page to preclude a plaintiff’s attorney from “driving a wedge” between the defense. Communicate “early and often” was also stressed– insureds, brokers, risk managers, and counsel need to share information and coordinate defense strategy as early as possible.
In other words, be more strategic. Plaintiff’s counsel on the other side of the fence, observed William Passannante, an attorney with Anderson Kill P.C., “will pool resources and share information and contact each other to form a united front,” especially when there’s potential for a big settlement. “I don’t know if I see the same willingness among defense counsels,” he added.
Finsness agreed, arguing that effective defense counsel and coordinated strategy are crucial components of satisfactory claim settlement.
Emerging risks might completely change the litigation landscape
Panel members were asked what they think could be the “next asbestos” to hit the insurance industry:
Talc-related litigation – the potential population of plaintiffs dwarfs that of the asbestos population.
The opioid crisis continues to increase litigation and claims exposure for many books of business.
Concussion litigation, especially with the increased attention on long-term brain injuries suffered by football players.
Climate change litigation, particularly the recent cases seeking to hold individual companies liable for alleged climate change-related damages.
Exposure “leakage,” in which old issues crop up in new contexts. Finsness noted that PFOA (chemicals used in a number of products) contamination could potentially become a product liability issue.
Premises security. Will venues become liable for shootings or other acts of violence on their premises?
The upshot being: claims are happening more often, are getting more expensive – and may be cropping up for new exposures that could haunt the insurance industry for decades to come.
As the world’s population becomes increasingly concentrated in cities, they become more vulnerable to risk events. To understand the risk, Lloyd’s compiled a City Risk Index, detailing the threat landscape for the world’s leading 279 cities.
The index estimates how much economic output (GDP@Risk) a city could potentially lose due to 22 different threats ranging from stock market crash to solar storm.
Here are some highlights from the report:
Across all 279 cities, $546.50 billion is at risk from all 22 threats.
Man-made threats account for 59 percent of the total GDP@Risk – with market crash the largest single threat, with cities exposed to losses of $103.33 billion on an annual basis.
The 10 cities with the highest exposure have a combined $126.82 billion of GDP@Risk, almost a quarter of the global total, with Tokyo standing to lose more than any other city.
Climate-related risks account for $122.98 billion of GDP under threat, and this sum will grow as extreme weather events grow in frequency and severity.
If cities were to improve their resilience, global GDP exposure to loss would drop by $73.4 billion.
Accumulation risk, where a single event triggers losses under multiple policies in one or more lines of insurance, is emerging in new and unforeseen ways in today’s interconnected world, says a post at Swiss Re Open Minds blog.
From Ruta Mikiskaite, casualty treaty underwriter, and Catriona Barker, claims expert UK&International Claims at Swiss Re:
For example, Kilmore East-Kinglake bushfire, the most severe of a series of deadly wildfires in the Australian state of Victoria on Black Saturday, 7 February 2009, led to a settlement of A$500 million—the biggest class action settlement in Australian legal history.
Per Swiss Re’s post, the Royal Commission found that the fire was caused by poorly maintained power lines owned by power company SP AusNet and maintained by asset manager Utility Services Group. The Victoria State government was also held liable for its failure to provide sufficient prevention measures and inadequate warnings during the fires.
Apparently, the courier company did not have cyber insurance or any other insurance that would cover losses from Petya, according to this report by The Wall Street Journal, via the I.I.I. Daily.
A new emerging risk report from Lloyd’s and risk modeling firm Cyence notes that cyberattacks have the potential to trigger billions of dollars of insured losses, yet there is a massive underinsurance gap.
Take its first modeled scenario: a cloud service provider hack. The event produced a range of insured losses from $620 million for a large loss to $8.1 billion for an extreme loss (overall losses ranged from $4.6 billion to $53 billion).
This left an insurance protection gap of between $4 billion (large loss) and $45 billion (extreme loss), so between 87 percent and 83 percent of the overall losses respectively were uninsured.
In another modeled scenario, the mass vulnerability attack, the underinsurance gap is between $9 billion for a large loss and $26 billion for an extreme loss, meaning that just 7 percent of economic losses are covered by insurance.