As Nat Cat Losses Mount,
A Resilience Mindset Matters More Than Ever

Insurance is essential for individuals, businesses, and communities to recover quickly from natural  catastrophes – but perils have evolved to a point at which risk transfer, though necessary, isn’t enough to ensure resilience.

Triple-I CEO Sean Kevelighan said during a that better insured communities recover more quickly but “the long-term resilience of both the communities impacted by natural catastrophes and of the industry itself depend on preparedness and improved risk mitigation.”  He was one of three panelists participating in the webinar.

“Something’s Got to Give”

Insured U.S. natural catastrophe losses totaled $67 billion in 2020 after an Atlantic hurricane season which included 30 named storms, record-setting wildfires in California, Colorado, and the Pacific Northwest, and a severe derecho in Iowa. This year’s hurricane season looks to be more severe; the Bootleg wildfire in Oregon – so large and intense it has begun to create its own weather and is affecting air quality as far east as New York City – isn’t  expected to be fully contained until late November; and these disasters are taking place on the heels of devastating winter storms in the first quarter.

As Kevelighan put it in his panel remarks, pointing to a 700 percent increase in insurer loss costs since the 1980s, “Something’s got to give.”

“As the country’s financial first responders,” he said, “insurers are not just responsible for providing relief to the communities affected by natural disasters, but also planning for potential catastrophes to come.”  

One of the ways insurers do this, he said, is by building the industry’s cumulative policyholders’ surplus—the amount of money remaining after insurers’ collective liabilities are subtracted from their assets. At year-end 2020, the U.S. policyholders’ surplus stood at a record-high $914.3 billion.

Mitigate and educate

The role of the insurance industry has grown beyond merely taking on risks to educating the public, regulators, and corporate decision makers on the changing nature of risk and driving a resilience mindset characterized by a focus on pre-emptive mitigation and rapid recovery. Triple-I and a host of other insurance industry organizations have played a key role in promoting public-private partnerships and using advanced data and analytics to understand and address hazards in advance.

For example, Triple-I’s online Resilience Accelerator provides access to data and risk maps that empowers the public to assess and prepare for risks specific to their own communities.

This webinar, co-presented by The Institutes’ Griffith Foundation and the Insurance Regulator Education Foundation, included panelists Hanna Grant, Head of the Secretariat, Access to Insurance Initiative; and Dr. Abhishek Varma, Associate Professor, Finance, Insurance and Law, Illinois State University. It was moderated by James Jones, Executive Director, Katie School of Insurance and Financial Services, Illinois State University.

Webinar highlights:

Litigation Funding
and Social Inflation: What’s the Connection?

Second post in a series on social inflation and litigation funding

Litigation funding – in which third parties assume all or part of the cost of a lawsuit exchange for an agreed-upon percentage of the settlement – is often cited as contributing to social inflation. But, like so much else associated with social inflation, it’s unclear how widespread the practice is.

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With historical roots in Australia and the United Kingdom, funding of lawsuits by investors has taken hold in the United States in recent years. On the positive side, it can let plaintiffs employ experts to develop effective strategies – options once only available to large corporate defendants.

But it also can contribute to cases making it to court based more on investor expectations than on plaintiffs’ best interests.

Erosion of common-law prohibitions

Litigation finance was once widely prohibited. The relevant legal doctrine – called “champerty” or “maintenance” – originated in France and arrived in the United States by way of British common law. The original purpose of champerty prohibitions – according to an analysis by Steptoe, an international law firm – was to prevent financial speculation in lawsuits, and it was rooted in a general mistrust of litigation and money lending.

There’s an irony here, in that a major societal force driving social inflation today – distrust of corporations and litigation – once motivated the prohibition of a practice now widely associated with the phenomenon.

These bans have been eroded in recent decades, leading to increases in litigation funding.

“If you are trying to understand how we got here, I would say start in the 1990s,” says Victoria Shannon Sahani, a professor of law at the Arizona State University Sandra Day O’Connor College of Law. “The United States isn’t really a big player on the scene yet, but you’ve got Australia and the United Kingdom independently making moves in their legislatures that paved the way for litigation funding to become more prevalent.” 

Between 1992 and 2006, Sahani says, “It was sort of the Wild West of Australian law in the sense that if you engaged in litigation funding, you always ran the risk that your agreement might be challenged.”

In 2006, the High Court of Australia provided clarity, saying litigation funding was permitted in jurisdictions that had abolished maintenance and champerty as crimes and torts. It was even acceptable for a funder to influence key case decisions.

The practice took time to gain traction in the United States because champerty prohibitions are left to states.  Some have abandoned their anti-champerty laws over the past two decades. Some, like New York, have adopted “safe harbors” that exempt transactions above a certain dollar amount from the reach of the champerty laws.

“Given the stakes involve in many cases, it will be interesting to see whether litigation funders refrain from direct involvement.”

– David Corum, vice president, Insurance Research Council

Uncertainty as to market size

There is no consensus as to how much investors spend on U.S. lawsuits each year, according to Bloomberg law, “but it is not $85 billion, a number recently put forward as the ‘addressable market’ for litigation finance by a publicly traded litigation financier.”

That’s because the industry spent only about 2.7% of $85 billion during a 12-month span that started in mid-2018, according to a Westfleet Advisors survey.

“Does that low penetration rate portend explosive growth ahead?” Bloomberg Law asks. “Or is it an indication that litigation finance is a niche product most plaintiffs and lawyers find unnecessary?”

A key determinant of growth may be the willingness of funders to remain uninvolved in managing cases, said  David Corum, vice president with the Insurance Research Council: “Given the stakes involve in many cases, it will be interesting to see whether litigation funders refrain from direct involvement.”

Benefit, bane, or both?

While funders tout the “David versus Goliath” aspect of helping small plaintiffs against corporations, opponents worry about introducing profit into a process that is supposed to aim at a just outcome. A settlement may be rejected because of pressure exerted by profit-seeking funders, and a plaintiff may walk away with nothing if the trial goes against them, opponents say. 

Laura Lazarczyk, executive vice president and chief legal officer for Zurich North America, called litigation funding “abusive” and said harm “will be largely borne by insurers in defense costs and indemnity payments and by policyholders in uncovered losses and higher premiums.”

Critics also decry a lack of transparency. While the U.S. District Court for New Jersey held that third-party funding must be disclosed, attempts to pass federal disclosure legislation have been unsuccessful.

“It’s a multibillion industry with no regulation and no requirements for transparency,” said Page C. Faulk, senior vice president of legal reform initiatives at the U.S. Chamber of Commerce. “It is essentially turning our U.S. courtrooms into casinos, which is why the chamber is calling for disclosure.” 

Such concerns led the American Bar Association last year to approve best practices for firms engaging in litigation funding. The resolution is silent on disclosure, but it urges lawyers to be prepared for scrutiny. It also cautions them against giving funders advice about a case’s merits, warning that this could raise concerns about the waiver of attorney-client privilege and expose lawyers to claims that they have an obligation to update this guidance as the litigation develops. 

Previous in the series

Social inflation: Eating the elephant in the room

More from the Triple-I Blog

What is social inflation? What can insurers do about it? 

Litigation funding rises as common-law bans are eroded by courts 

Lawyers’ group approves best practices to guide litigation funding 

Social inflation and COVID-19 

IRC study: Social inflation is real, and it hurts consumers, businesses

Florida dropped from 2020 “Judicial Hellholes” list

Florida’s AOB crisis: A social-inflation microcosm 

100 Deadliest Days Are Here; Teen Drivers Take Heed

Teenage drivers are on the roads in full force these days, whether reconnecting with friends after tough months of social isolation or commuting to summer jobs.

Summer has always been a dangerous time for young drivers. The period between Memorial Day and Labor Day has been dubbed the “100 Deadliest Days” due to the high proportion of fatal accidents involving teens.

Over 7,000 people died in teen driving-related summertime crashes from 2010 to 2019 in the United States, according to AAA Foundation for Traffic Safety. That’s more than seven people a day during these 100 Deadliest Days, compared to the rest of the year (six people a day).

Teens’ lack of driving experience and immaturity lead to dangerous practices behind the wheel, such as speeding, drinking, and tailgating. And when teen passengers are present in the vehicle, the risk of teen drivers getting into an accident goes up even more.

When a teen driver has only teen passengers in their vehicle, the fatality rate for all people involved in a crash increased 51 percent, according to AAA. But when older passengers (35 or older) ride with a teen driver, fatality rates in crashes decreased eight percent.

One trend having a positive impact on teen-caused accidents is that fewer of them are driving today than a generation ago. Only about 61 percent of 18-year-olds in the U.S. had a driver’s license in 2018, compared to 80.4 percent in 1983, according to an analysis by Green Car Congress.  The number of 16-year-old licensed drivers has also significantly decreased, from 46.2 percent in 1983 to 25.6 percent in 2018.

The reasons fewer teens are driving vary from the increased difficulty of obtaining a license to the ready availability of ride-sharing apps, to the higher cost of cars.

The increased difficulty can partly be attributed to the spread of graduated driver’s license (GDL) laws, which include a three-phase program that allows teen drivers to develop more mature driving attitudes and gain experience behind the wheel. These laws, passed by every state, have been successful in reducing teen motor vehicle accidents, according to the Insurance Institute for Highway Safety.

In spite of the success of graduated licensing programs and other positive trends, AAA strongly encourages parents and guardians to model safe driving behaviors and discuss dangerous behaviors with teens, as even one fatality is one too many, and unfortunately the 100 Deadliest Days is not ready to be retired.

Additional resources:
Triple-I, Background on teen drivers
Triple-I, Facts & Statistics – Teen drivers

Social Inflation:
Eating the Elephant
In the Room

“Social inflation” refers to rising litigation costs and their impact on insurers’ claim payouts, loss ratios and, ultimately, how much policyholders pay for coverage. It’s an important issue to understand because – while the tactics associated with it typically affect businesses perceived as having “deep pockets” – social inflation has implications for individuals and for businesses of all sizes.

The insurance lines most affected are commercial auto, professional liability, product liability, and directors and officers liability. There also is evidence that private-passenger car insurance is beginning to be affected. As increased litigation costs drive up premiums, those increases tend to be passed along to consumers and can stifle investment in innovation that could create jobs and otherwise benefit the economy.

For more on this, see: Social Inflation: Evidence and Impact on Property-Casualty Insurance by the Insurance Research Council (IRC).]

Much of what is discussed and published on the topic has been more anecdotal than data based. Reliably quantifying social inflation for rating and reserving purposes is hard because it’s just one of many factors pressuring pricing. We’ve found that the most meaningful way to think about social inflation and its components is to compare their impact on claims losses over time with growth in inflation measures like the Consumer Price Index (CPI).

Litigation Funding

It’s been said that the best way to eat an elephant is “one bite at a time.” Because of the diversity and complexity of social inflation’s causes and effects, we’re launching a series of blog posts dedicated to each one in turn. The first set of posts will look closely at litigation funding: the practice of third parties financing lawsuits in exchange for a share of any funds the plaintiffs might receive.

Litigation funding was once widely prohibited, but as bans have been eroded in recent decades, the practice has grown, spread, and become a contributor to social inflation.

[See: Litigation Funding Rises as Common-Law Bans Are Eroded by Courts on the Triple-I Blog]                                                                                                  

Litigation funding seemed a good place to begin this series because it’s a distinct legal strategy with a clear history that doesn’t involve a lot of the sociological subtleties inherent in other aspects of social inflation. We’ll look the emergence of the practice, how it came to the United States from abroad, and track its evolution with that of social inflation. We’ll also discuss the current state of litigation finance, along with ethical concerns that have been raised around it within the legal community.

This series will be led by IRC Vice President David Corum with support from our partners at The Institutes and input from our members, as well as experts beyond the insurance industry. As befits any discussion of a complex topic, we look forward to your reactions and insights.

More from the Triple-I Blog

What is social inflation? What can insurers do about it? (January 25, 2021)

Litigation funding rises as common-law bans are eroded by courts (December 29, 2020)

Lawyers’ group approves best practices to guide litigation funding (August 19, 2020)

Social inflation and COVID-19 (July 6, 2020)

IRC study: Social inflation is real, and it hurts consumers, businesses (June 2, 2020)

Florida dropped from 2020 “Judicial Hellholes” list (January 14, 2020)

Florida’s AOB crisis: A social-inflation microcosm (November 8, 2019)

Unethical Contractors Emerge After Disasters; Know How to Avoid Them

Natural disasters create opportunities for unethical contractors, and consumers need to be on the alert.

Post-disaster repair scams typically start when a contractor makes an unsolicited visit to a homeowner and pressures the homeowner to pay the contractor their insurance claim money – then disappear without doing the work.

Triple-I is teaming up with the National Insurance Crime Bureau (NICB) during the NICB’s Contractor Fraud Awareness Week (July 12-16) to educate the public about such frauds and how to avoid them.

Before hiring any contractor, consumers affected by a natural disaster should call their insurer. There’s no need to rush into an agreement. Homeowners should inspect all work and make sure they are satisfied before paying. Most contractors will require a reasonable down payment, but no payments should be made until a written contract is in place.

The NICB offers these tips to homeowners before hiring a contractor:

  • Be wary of anyone knocking on your door offering unsolicited repairs to your home. 
  • Be suspicious of any contractor who rushes you or says the government endorses them.
  • Shop around for a contractor by getting recommendations from people you trust.
  • Get three written estimates for the work and compare bids.
  • Check a contractor’s credentials with the Better Business Bureau.
  • Always ask for a written contract that clearly states everything the contractor will do.
  • Never sign a contract with blank spaces because it could be altered afterward.
  • Never pay for work up front and avoid paying with cash; use either a check or credit card.

The NICB Post-Disaster Contractor Search Checklist explains the contractor hiring process step by step.  Anyone with information concerning insurance fraud or vehicle theft can report it anonymously by calling toll-free 800-TEL-NICB (800-835-6422) or submitting a form to the NICB.

“Acting as communities’ financial first responders, insurers rebuild damaged homes, cars, and lives after a natural disaster,” said Triple-I CEO Sean Kevelighan.  “The Insurance Information Institute is proud to join forces with the NICB to educate consumers and communities about how to best prepare and recover economically.”

“Victims of disasters are under tremendous stress as they are often pulled from their homes, fight heavy traffic attempting to get to safety, all while leaving their home and belongings behind,” said NICB President and CEO David Glawe. “When they go home, they are exhausted and strained, a time when they are most susceptible to these fraudulent schemes.”

RELATED LINKS:

Article: Insurance Fraud

Facts & Statistics: Insurance Fraud

New Perils Arise
as Air Travel Resumes

Among the many things we’ve missed since the start of the pandemic, travel has been one of the most notable. Whether for business, to visit distant family members, or just get away from our now-too-familiar surroundings, many of us have been keenly anticipating a return to air travel.

Flying is among the safest activities people can engage in (see infographic). But new concerns are being raised about risks emerging in a post-COVID-19 world.

The risks highlighted in a recent report from Allianz Global Corporate & Specialty (AGCS) include “rusty” pilots, “air rage”, new aircraft, and even insect infestations.

The industry is slowly rebounding, and AGCS notes that the airline teams have stepped up to ensure that air travel remained safe, despite layoffs, financial struggles, and the pressures attending an overnight shift to remote working.

“But as more aircraft return to the skies,” the report says, “there has been much discussion about the hazards that may arise from such an unprecedented period, as well as some of the changes the sector will see.”

Earlier this year it was reported that dozens of pilots had notified the Aviation Safety Reporting System about making mistakes after climbing back into the cockpit. Operated by NASA, the Federal Aviation Administration (FAA) watchdog system enables pilots and crew members to anonymously report mechanical glitches and human errors.

“Many of the pilots cited ‘rustiness’ as a reason for the incidents after returning to the skies following months of lockdown,” AGCS reports. “While there have been no reported incidents of out‑of‑practice pilots causing accidents injuring passengers, mistakes reported included: forgetting to disengage the parking brake on takeoff, taking three attempts to land the plane on a windy day, choosing the wrong runway, and forgetting to turn on the anti‑icing mechanism that prevents the altitude and airspeed sensors from freezing.”

Condition of aircraft

At the peak of the first wave of the crisis, airlines parked around two thirds of the total global fleet. More than a year later, many are still mothballed.

“This unprecedented situation has resulted in a host of new challenges,” AGCS writes. “Loss exposures do not just disappear when airplanes are parked.”

Rather, the risks and their costs change. AGCS cites fears of damage among grounded aircraft during thunderstorms in Texas that pelted the region with golf ball‑sized hail.

Aircraft are large and tricky to maneuver on the ground, and ground incidents can result in costly claims. When operators transferred fleets from the runways to storage facilities at the start of the pandemic there were a number of collisions. It would not be surprising, therefore, to see more such incidents as planes are moved in preparation for reuse.

The European Union Aviation Safety Agency has reported  “an alarming trend…of unreliable speed and altitude indications” related to accumulations of foreign objects, such as insect nests in areas of aircraft that provide flight-critical air data information.

“This has led to a number of rejected take-off and in-flight turn back events,” the agency reports.

On the other hand, as many airlines have retired larger aircraft earlier than planned due to COVID-19, there will be many newer planes on the runways and in the air, which presents its own challenges from an insurance coverage perspective. As we’ve written previously, more modern planes are more expensive to repair or replace when there is an incident, leading to more expensive claims.

Air rage on the rise

In May 2021, an attendant on a Southwest Airlines flight attendant had two teeth knocked out after an altercation with a passenger over wearing a mask – the latest in a spate of highly publicized incidents that moved the FAA to issue a warning about a spike in unruly or dangerous behavior. More recently, an American Airlines flight to the Bahamas was canceled when some among a group of high school students refused to wear masks.

In a typical year in the United States, there tend to be no more than 150 reports of serious onboard disruption, the AGCS report says – but by June 2021 that number had already reached about 3,000, including about 2,300 involving passengers who refused to comply with the federal mandate to wear a mask while traveling.

Few COVID-19 claims

The aviation industry has seen few claims directly related to the pandemic to date, AGCS says, also noting a decline in slip-and-fall and lost-baggage claims at airports because of the reduced number of passengers during the pandemic. Such claims are expected to return to more typical levels as people resume traveling, and insurers will need to be mindful of new hazards that could affect claims experience.

Long-Term Considerations
From Condo Collapse

The insurer for the Champlain Towers South condo association has said it will make an up-front payment to resolve damage claims related to the 12-story beachfront property in the Miami  suburb of  Surfside, Fla., that collapsed on June 24, 2021.

“We want to make it known that James River Insurance Company has made the decision to voluntarily tender its entire limit from the enclosed policy towards attempting to resolve all the claims in this matter,” the insurer’s attorney wrote to the judge handling a class-action lawsuit seeking millions of dollars in damages from the association.

Since the collapse last week, four residents or their families have filed lawsuits against the association. Many more suits are expected in the coming months, and litigation could take years as investigators work to determine what caused the collapse. The first court hearing was held yesterday, and a Miami-Dade Circuit judge acknowledged that the building’s $48 million in total insurance coverage likely won’t be enough.

In all, the court heard, the condo association’s master policy has $30 million in property coverage and $18 million in liability coverage. The condo association has agreed to hand over financial decision making to a court-appointed “receiver.”

Seeking survivors as storm nears

With investigators still working to find and rescue survivors and Hurricane Elsa – the first of the 2021 Atlantic hurricane season and earliest “E-named” storm on record – heading toward Florida, the situation remains fluid. This week, dozens of units at a Central Florida condominium complex near Disney World were deemed unsafe after an inspection found the walkways leading to the units were at risk of collapsing, according to an Osceola County spokesperson.  Residents were advised to enter the buildings containing the units at their own risk, the spokesperson said, adding that county staff were offering residents assistance with temporary housing.

Increased attention to the condition of older high-rise buildings in South Florida and across the U.S. in the wake of the Champlain Towers collapse could lead to a rise in claims for loss-of-use coverage. In addition, many businesses in the vicinity of the collapse have been made inaccessible during the rescue operation, which could lead to business interruption claims.

Spotlight on building codes

Furthermore, this event could lead to a review of building codes and inspection practices nationwide. South Florida’s building codes are among the nation’s strongest – designed to keep residents safe from hurricanes. The state implemented mandatory codes after Category 5 Hurricane Andrew ripped homes from their foundations and left 65 dead in Homestead in 1992, and some counties – particularly in South Florida – have added more stringent requirements.

But after last week’s collapse, IBHS chief engineer Anne Cope said, “This is a moment like Katrina and Andrew, where we are going to learn something and make changes.”

Many of the region’s buildings – including  Champlain Towers South – were built before 1992 as part of a South Florida condo boom. Those buildings are subject to codes that were in place at the time of their construction, and are only required to undergo local county inspections every 40 years – such as the 2018 review of the Surfside condo in which an engineer raised red flags that the building was beginning to address but didn’t warn of imminent disaster.

A FEMA study last year said implementation of modern building codes could save states and localities billions of dollars.

Independence Day Summer Fun Also Carries Risks

By Loretta Worters, Vice President, Media Relations, Triple-I

Independence Day is associated with fireworks displays, barbeques, and poolside parties, yet even summer fun carries risks.

Here are four summertime liability risks you should be aware of and recommendations on what you can do to protect yourself:

FIREWORKS: Fireworks may be a Fourth of July tradition, but they can also cause either injuries or fires. More than one of every four (28 percent) fireworks-caused fires nationwide each year occur on the Fourth of July, according to the National Fire Protection Association (NFPA.) In recognition of Fireworks Safety Awareness Week (June 28-July 4), the Triple-I encourages everyone to follow federal fireworks laws and local fireworks laws

GRILLS: About four out of five (79 percent) grilling fires involve gas grills, according to the U.S. Fire Administration (USFA). Patios, terraces, and screened-in porches are the leading home locations for grill fires, the USFA has found. The NFPA reports an average of 8,900 home fires are started by grills each year, with numbers peaking during the month of July. Grill-related fires can damage your house, outdoor possessions and structures and cause injuries to guests. The latter could result in a lawsuit.

POOLS: Drowning is the leading cause of unintentional death among children aged one to four years old and, between 2016 and 2018, 83 percent of these tragedies occurred at residential pools, according to the U.S. Consumer Product Safety Commission reported. In addition, non-fatal pool and diving board accidents can leave victims with long-term health issues.

ALCOHOL: Social host liability laws vary widely but 40-plus states have them on the books. Most of these laws offer an injured person a method to sue the person who served them alcohol while on their premises. Criminal charges may also apply under some social host liability laws.

Any of these scenarios pose a liability risk, so homeowners are advised to review their insurance policies to understand their policy’s liability limits. A liability limit of at least $300,000 is often a cost-effective step to take in consultation with an insurance professional.

In addition, consider adding an umbrella liability policy, which provides liability protection over and above current coverage.