Tag Archives: Events

Advisen Conference: Claims Are Getting Bigger – and Nastier

nasty claims are on the rise.

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.

Insurers Ready for the Summer Olympics

Opening ceremonies for 2016 Summer Olympics in Rio de Janeiro are just days away and amid crime, security and public health concerns, it is the global insurance industry that provides the critical risk coverage needed for this sporting event to go ahead.

More than 10,000 athletes from 206 countries will come together in Rio to participate in a total of 665 events which are expected to attract up to 500,0000 international spectators as well as a considerable number of domestic tourists.

Approximately $1 billion in insurance is in place for this event, via a policy purchased by the International Olympic Committee (IOC), Business Insurance reports.

The policy, underwritten by major reinsurers Swiss Re and Munich Re, covers the IOC in the event the games need to be canceled due to a natural catastrophe, civil unrest, pandemic or terrorism.

It also covered the 2012 London Summer Olympics and the 2014 Winter Olympics in Sochi, Russia.

Terrorism coverage for the Olympic Village which will house the athletes, has been underwritten in the London and international markets, according to the Business Insurance article.

Though a major global sporting event gives terrorists a worldwide audience for spectacular attacks, London-based risk consulting firm Control Risks continues to assess the terrorism threat in Rio as low.

Screen Shot 2016-08-01 at 10.55.54 AM

Bomb disposal experts detonated a controlled explosion Sunday night to destroy a suspicious package found at Maracana Stadium, site of the Olympics opening ceremonies (pictured above). There are also concerns about lone wolf attacks.

In a security briefing, Control Risks notes that there is no history of transnational terrorism in Brazil, and the country continues to rely heavily on its foreign policy (based on principles of multilateralism, peaceful settlement of disputes and non-interventionism) as a main source of protection.

Brazil has set up its largest security operation in history to address the unique challenges surrounding the event and its counter-terrorism strategy is built on the lessons learned from the country’s successful hosting of the 2014 World Cup.

Some 47,000 Brazilian security professionals have been deployed and the country is also relying on foreign expertise. In 2015, Brazil sent around 100 police officers abroad to learn about best practices for managing large international events, including the Boston and Berlin marathons, and the Tour de France.

In addition to the events taking place in Rio, the football tournament will also be held in five other cities: Manaus, Belo Horizonte, Brasília, Salvador and São Paulo. Some 38,000 members of the armed services as well as security forces will patrol the five football host cities.

Crime and public safety will be the most pressing concerns during the sporting events, Control Risks notes, though significant disruption to travel and logistics is also anticipated due to protests.

Tensions in many urban centers, including Rio de Janeiro, remain elevated as a result of Brazil’s ongoing political and economic crisis. While most demonstrations are likely to be peaceful, there is a credible risk of clashes between security forces and protesters, particularly if the security forces adopt a heavy-handed approach.

Control Risks advises companies to continue to monitor the situation closely.

While the Zika virus has been billed as the biggest public health threat, experts say the bigger concerns for visitors are actually traffic accidents, the Flu, and pollution.

Check out Insurance Information Institute facts and statistics on terrorism. Check out CDC guidance on the Zika virus in Brazil here.

Annual Workers’ Comp Conference To Focus On Opt-Out Legislation

I.I.I. chief actuary James Lynch previews the upcoming Workers Compensation Research Institute (WCRI) annual conference:

My job involves a lot of travel, and the travel tends to be in the spring and the kickoff always seems to be the WCRI conference in Boston, which this year will be March 10 and 11 at the Westin Copley Place. It’s a great place to start.

This is my third conference. The first two have been both important and controversial.

In (my) year one, Jonathan Gruber spoke about the Affordable Care Act. It generated a lot of media coverage because he is considered one of the big thinkers behind Obamacare and its Massachusetts predecessor.

I blogged about it at Terms + Conditions. He said health care reform should help the workers comp system. Fewer workers would be uninsured, and those newly insured would be less likely to try to game their malady into a comp claim.

Last year’s conference also had a preview of research that WCRI would release formally later in the year documenting the way that Obamacare’s structure promises to shunt millions of dollars in medical costs onto workers compensation.

The short story: Obamacare encourages health plans in which doctors receive a set amount from health insurers for each patient in the doctor’s practice. If one of those patients is a borderline case between workers comp and traditional health insurance, the doctor has an incentive to call it a comp claim–it brings him more money. In his research, Dr. Richard Victor, who then was in his final months as WCRI’s executive director, showed that when presented with a similar health plan–the HMO–doctors appear to behave just that way.

In another talk, Victor said ACA’s impact will be like a hurricane. I wrote:  “Like a storm whose path is not quite defined, health care reform could take a significant toll, but we don’t know where.”

Dr. Victor has retired; his replacement is Dr. John Ruser, formerly at the Department of Labor.

This year I’m looking forward to a discussion of whether employers should be allowed to opt out of the workers compensation system. An employer that opts out of the comp system still has to provide injured workers protection but can be sued for negligence by injured employees.

Texas has always allowed qualified employers to opt out. Oklahoma became the second state to permit opting out with legislation passed in 2014. Opt-out proponents hope Tennessee and South Carolina will be next.

Insurers generally oppose opt-out legislation, feeling that the workers comp system remains a fair tradeoff of tort rights for quick, sure recovery in case of injury.

WCRI will spend a big part of its first day discussing the issue. One panel will spell out what opt out is and will feature Bill Minick, an attorney who is one of the movement’s strongest promoters. He will be joined by Trey Gillespie of the Property Casualty Insurance Association of America, which looks much more skeptically on the idea.

The second panel will include advocates on both sides of the issue, representing insurers, regulators, workers and employers.

The highlight of Day Two, for me, will be seeing my boss, Robert Hartwig, speak about how the sharing economy is likely to impact the workers compensation system. The idea: If sharing economy workers are not employees, as companies like Uber contend, they are ineligible for workers comp benefits. What will happen when those workers get hurt?

As most insurance observers know, Bob is leaving the I.I.I. in August to join academia–teaching risk management, insurance and finance courses at the University of South Carolina. He is likely the most dynamic speaker in the insurance world, and in the future he won’t be speaking nearly as frequently as he does now (that is unless you become one of his students!) So I plan to enjoy Bob’s show as often as I can the next few months.

Details on the conference, including registration information, can be found here.

Annual Workers Comp Conference Beckons

Next week Jim Lynch will be in Boston for the annual conference of an I.I.I. subscriber, the Workers Compensation Research Institute (WCRI). Here’s  his preview:

WCRI is known for its painstakingly objective analyses of workers comp trends in more than a dozen large states. Lately mainstream media have noticed WCRI, particularly this New York Times article, in which researchers found that when the prices of common dosages for back pain were capped, California doctors switched to dosages whose prices were not capped. This allowed them to charge about five times more per pill.

Physicians tend to charge considerably more than pharmacies when they dispense drugs, a phenomenon WCRI studies regularly. The costs and consequences of physician prescriptions is one of the main topics of the first morning of next week’s conference. (Registration and other details here.)

Day Two will feature a topic in which I’ve become more interested in recent weeks — the ability to opt out of the workers comp environment entirely.

For about a century workers comp has been a pact that has bound employers to employees in liability law. Workers give up their right to sue if they are injured on the job. Employers agree to pay for all injuries at work, regardless of how they occurred.

For decades Texas was the only state that didn’t follow these rules. Employers could opt out of the system, but they lost the considerable common law defenses employers usually enjoy. Workers’ Comp Insider has a nice overview of the Texas system.

In 2014 Oklahoma became the second opt-out state. Tennessee lawmakers have proposed their state become the third, even as Oklahoma’s law faces a constitutional challenge, as Business Insurance reports.

At the WCRI conference opt-out will get a hearing. A representative from retailer Nordstrom, which supports opt-out measures, will discuss the matter with an AFL-CIO representative and one from PartnerSource, a company that helps successfully opt-out.

Follow my live-tweeting of the conference @III_Research and check back for another blog post.

Update: Aw, shucks. I learned early Thursday that the opt-out session at the WCRI conference has been canceled. I’ll still be going to the conference.

I.I.I. offers facts and statistics on workers compensation.

Insurance Industry Gives Back

I.I.I.’s new California representative Janet Ruiz brings us this timely report  from the  insurance industry’s first  philanthropic roundtable of the new year:

The first of three 2015 insurance industry philanthropic roundtables was held earlier this week in Woodland Hills, CA at Farmers Insurance to discuss the landscape of philanthropy with the theme of disaster resilience.

Speakers at the meeting presented case studies of successes such as the partnership of Farmers Insurance with the Saint Bernard Project to rebuild Joplin, Missouri. The Insurance Information Institute (I.I.I.) discussed the role of catastrophe communications in getting important information out to media and consumers before, during, and after a catastrophe. Team Rubicon talked about their mission to bridge the gap for veterans and how they engage veterans, first responders and volunteers in rebuilding communities after a disaster.

The Insurance Industry Charitable Foundation (IICF) leads the philanthropic roundtables attended by member insurance companies involved in philanthropy and community giving. It was born out of the passion of insurance professionals to make a positive community impact.

The IICF Early Literacy Initiative and Sesame Workshop Partnership recently launched — ‘Every Day is a Reading and Writing Day’ — working to provide every American child the opportunity to read and write. As Melissa Duncan, IICF Western Division says: “Early education makes true social progress.”

Bill Ross, CEO, IICF wrapped up the roundtable by reminding all of the impact the insurance industry has giving $1 billion annually in direct giving and sponsorships to charity.

It was a powerful session!

You can read more  on the insurance industry’s contribution to community and charitable causes here.

WCRI Conference Preview

With the Affordable Care Act (ACA) at center stage, interest is high in this week’s workers compensation conference in Boston, Massachusetts.

We read a lot about how ACA is changing health insurance and the world of business, but an effect of less renown is how the health law will affect workers compensation insurance.

Check out previous T+C posts on this topic here and here.

The conference, sponsored by the Workers Compensation Research Institute (WCRI), will feature health care experts like economist Jonathan Gruber, an MIT professor and one of the architects of the ACA, teasing out how health care and workers comp will intertwine in the coming years.

More than a dozen media organizations are scheduled to attend, from industry blogs to national media. I.I.I. will be there, too, with chief actuary James Lynch reporting and tossing off the occasional tweet @III_Research under the hashtag #WCRI.

WCRI is an independent, not-for-profit research organization that provides high-quality, objective information about public policy issues involving workers compensation systems. The conference is March 12 and 13, with details here.

A roundup of I.I.I. workers comp  work can be found here.

2014 Joint Industry Forum

A survey conducted by the Insurance Information Institute (I.I.I.) at its 18th annual Property/Casualty Insurance Joint Industry Forum found that property/casualty insurance industry leaders believe Congress will delay implementation of the Biggert-Waters (BW) reforms to the National Flood Insurance Program (NFIP).

Some 75 percent of respondents expect Congress will delay implementation of the Act intended to help reduce the debt of the NFIP, a debt now estimated at more than $25 billion, by bringing rates charged more in line with the risk and losses in flood-prone areas, the I.I.I. survey revealed.

A majority of respondents to the survey—93 percent—also believe the Terrorism Risk Insurance Act, which is set to expire at the end of this year, will be reauthorized by Congress.

Meanwhile, a panel of industry chief executives agreed that a repeat performance of the property/casualty industry’s stellar 2013 performance will be hard to repeat.

The CEOs said higher rates, fewer-than-normal catastrophes, and strong stock market returns seem likely to make last year one of the best of the past decade.

But new challenges in growth and price competition make a repeat performance unlikely this year, the CEOs said.

By lines of insurance, only 35 percent of I.I.I. survey respondents believe there will be an improvement in profitability in personal auto in 2014, while 45 percent expect an improvement in homeowners profitability.

Only 40 percent expect an improvement in profitability in commercial lines, while 50 percent expect an improvement in workers compensation.

Looking at economic growth, 40 percent of insurance industry leaders think the U.S. economy will accelerate and 58 percent think it will remain the same, according to the I.I.I. survey.

Dr. Steven Weisbart, senior vice president and chief economist with the I.I.I. said:

Many economic forecasts say that the U.S. and most global economies will grow stronger in 2014, and this means a greater need to protect more assets and income, which leads to greater insurance premium volume.†

Some 30 percent of survey respondents believe that premium growth will be higher in 2014; 42 percent believe it will remain flat; and 28 percent believe it will be lower.

In terms of capacity, as measured by policyholders’ surplus, 73 percent of respondents expect it to increase; 20 percent believe it will remain flat; and 7 percent believe it will decrease.

Some 68 percent believe the combined ratio (the percentage of each premium dollar a property/casualty insurer spends on claims and expenses) will be higher in 2014 compared to last year.

P/C Joint Industry Forum

The 17th annual Property/Casualty Insurance Joint Industry Forum will be held tomorrow at the Waldorf-Astoria Hotel in New York City.

The Forum, sponsored by 16 leading property/casualty insurance trade associations, was created to provide p/c insurance and reinsurance company leaders with an opportunity to meet and discuss topics of general interest.

Thomas J. Donohue, president & CEO, U.S. Chamber of Commerce, will be the keynote speaker at the event.

A panel of experts will first discuss the insurance industry from the perspective of those who regulate, analyze and write about the business.

This will be followed by the CEO panel where industry leaders will discuss general trends in industry services.

You can follow the Insurance Information Institute’s live Twitter feed on Tuesday.

P/C Joint Industry Forum

The 15th annual Property/Casualty Insurance Joint Industry Forum (#JIF2011) will be held next Tuesday January 11 at the Waldorf-Astoria Hotel in New York City.

The Forum, sponsored by 16 leading property/casualty insurance trade associations, was created to provide p/c insurance and reinsurance company leaders with an opportunity to meet and discuss topics of general interest.

A panel of experts will first discuss the insurance industry from the perspective of those who regulate, analyze and write about the business.

This will be followed by  the CEO  panel where industry leaders will discuss general trends in industry services.

A reception and dinner that evening will feature an address by Ari Fleischer, former White House Press Secretary for George W. Bush and president, Ari Fleischer Communications Inc.

Media interested in attending the Forum should contact Loretta Worters at the I.I.I. on 212-346-5545.

Fundraising Dinner Features Sporting Greats

Major League baseball great Ken Griffey Jr. and hockey legend Mark Messier will be the featured speakers at the Insurance Industry Charitable Foundation (IICF) 2010 benefit dinner on December 8 at the Waldorf-Astoria Hotel in New York City.

This year’s dinner chair  is Greg Case, president and chief executive officer of Aon Corp. Case  commented:

“Aon is a strong supporter of the work of IICF, which pools our industry resources to provide grants, volunteer service, and leadership to the communities where we live and work. It is my pleasure to serve as dinner chair and to assist the foundation in raising funds for life-changing community grants.†

The IICF also said it will present Maurice R. “Hank† Greenberg, chairman and chief executive officer of C.V. Starr & Co with the 2010 Double I award for influence in the industry and impact in the community.

For gala information, including ticket sales, please contact the IICF Benefit Office at (212) 763-8597 or iicf@cmevents.net. The event raises funds for charities in the New York tri-state area.