Category Archives: Business Risk

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 

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)

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.

Cyber Risk Gets Real, Demands New Approaches

With the cyber risk environment worsening significantly, a recent A.M. Best report says, “prospects for the U.S. cyber insurance market are grim.”

The recent proliferation of ransomware attacks leading to business interruption and other related hazards has caused cyber insurance – which began as a diversifying, secondary line – to become a primary component of a corporation’s risk management and insurance purchasing decisions.

Consequently, the A.M. Best report says, insurers urgently need to reassess all aspects of cyber risk, including their appetite, risk controls, modeling, stress testing, and pricing, to remain a viable long-term partner for dealing with cyber risk.

Cyber insurance “take-up” rates (the percentage of eligible customers opting to buy the coverage) are on the rise, according to a recent Government Accountability Office (GAO) report – to 47 percent in 2020 from 26 percent in 2016. This increased demand has been accompanied by higher prices for cyber insurance, as well as reduced coverage limits for some industry sectors, such as healthcare and education. In a recent survey of insurance brokers, the GAO says, more than half of respondents’ clients saw prices rise 10 to 30 percent in late 2020.

“The rate increases for cyber insurance outpaced that of the broader property/casualty industry, but the increase in cyber losses outstripped the rate hikes, which suggests more trouble for 2021 as ransom demands continue to grow,” said Sridhar Manyem, director, industry research and analytics at A.M. Best.

The A.M. Best report says the challenges the cyber insurance market faces include:

  • Rapid growth in exposure without adequate underwriting controls;
  • The growing sophistication of cyber criminals that have exploited malware and cyber vulnerabilities faster than companies that may have been late in protecting themselves; and
  • The far-reaching implications of the cascading effects of cyber risks and the lack of geographic or commercial boundaries.

In April, Federal Reserve Chairman Jerome Powell said cyberattacks are the foremost risk to the global financial system, even more so than the lending and liquidity risks that led to the 2008 financial crisis.  

“The world evolves, and the risks change as well and I would say that the risk that we keep our eyes on the most now is cyber risk,” Powell said. “There are scenarios in which a large financial institution would lose the ability to track the payments that it’s making, where you would have a part of the financial system come to a halt, and so we spend so much time, energy and money guarding against these things.” 

The Fed chief’s concerns have since been borne out by attacks on the Colonial PipelineJBS SA – the world’s largest meat producer – the New York City Metropolitan Transportation Authority, and others.

More recently, FBI Director Christopher Wray compared compared the current spate of cyberattacks with the challenge posed by the Sept. 11, 2001, terrorist attacks. He said the agency was investigating about 100 different types of ransomware, many tracing back to hackers in Russia.

As we’ve written elsewhere with respect to natural catastrophes, it seems the world has entered a phase in which the traditional emphasis on risk transfer through insurance products is no longer sufficient to address today’s complex, interconnected perils. A focus on resilience and pre-emptive mitigation is in order, and insurers are well positioned to serve not only as financial first responders but as partners in managing these evolving hazards.

Ms. Winnie Tsen, Assistant Director, Financial Markets and Community Investment, U.S. Government Accountability Office (GAO), was one of the key contributors to the GAO’s May 2021 report on cyber insurance.

Swiss Re: “Zombies”
Could Kill Recovery

Global pandemic.

Supply-chain disruptions.

Increasingly costly cyber-attacks.

Extreme weather and other climate-related hazards.

And now, zombies.

Swiss Re’s chief economist this week said failures of hundreds of “zombie companies” over the next few years are among the concerns prompting insurers to reduce risk and charge higher premiums – a trend that is likely to continue as corporate failures increase.

Zombies – companies that lack the cash flow to cover the cost of their debt – are “a ticking time bomb” whose effects will be felt as governments and central banks withdraw measures that have helped keep these companies alive during the pandemic, Jerome Haegeli told Reuters.

The sobering prediction comes as stock prices hit records and the U.S. economy appears headed for 6.5 percent growth this year. Haegeli said these strengths are illusory because they’re based on temporary fiscal and monetary support.

Insurers are being cautious: reining in underwriting risk, being more prudent about investment allocations, and even taking precautions on insuring operations and supply-chain risk.

“They are not getting fooled by the short-term picture,” Haegeli said. “If you look at the market today, everything looks great. However, it’s illusionary to think that this environment can last” as “life support” is withdrawn in coming months. And that, he said, will bring an increase in long-overdue bankruptcies.

It’s tempting to presume that, as the pandemic-driven aspects of the economic crisis are brought under control, recovery will proceed apace. After all, the economy was doing fine before the pandemic hit, right?

But in September the Bank for International Settlements (BIS) pointed to a “pre-pandemic increase in the number of persistently unprofitable firms, so-called ‘zombies’, which are particularly vulnerable to economic downturns.”

Before the pandemic, the BIS said, about 20 percent of listed firms in the United States and United Kingdom were zombies and 30 percent in Australia and Canada. By comparison, zombies constituted about 15 percent of listed companies in 14 advanced economies in 2017 and 4 percent before the 2008 financial crisis.

Absent any reason to believe these companies’ situations substantially improved during the pandemic or that the contagion didn’t spawn more zombies, the expectation of more corporate collapses seems reasonable.

Add to this rising losses due to hurricanes, severe convective storms, and wildfires; the threat of sea level rise; and the growing reality business and government disruption from cybercrime, and the likelihood of increasing premiums and reduced coverage limits seems strong.

Spotlight on Joann Wang, Co-Founder and Director of Operations of East Side Stories

By Marielle Rodriguez, Social Media and Brand Design Coordinator, Triple-I

To celebrate Asian American and Pacific Islander (AAPI) Heritage Month, we spoke with Joann Wang, Co-Founder and Director of Operations of East Side Stories (ESS), a NYC-based non-profit organization dedicated to sharing the AAPI experience through film, media, and education. ESS brings together local talent, AAPI creatives and filmmakers, AAPI-owned businesses, and other community organizations to create meaningful storytelling and conversations around the AAPI experience.

We spoke to Wang on what inspired her to found ESS, how her crew prepares for pandemic-related liabilities on a film set, and the dogged resilience and solidarity of AAPI small businesses and their supporting communities.

Joann Wang

Let’s talk about your background. What inspired you to found East Side Stories (ESS)?

I’m Taiwanese-Mongolian, and I’m a full-time school counselor and a part-time vocational counselor. Shane, our freelance filmmaker, and I started ESS as a passion project. We started doing our “Stories From the Heart” series and interviewing more than 50 Asian Americans on love and what it means to them. We met tons of great people during that project which was back in February 2020. Shortly after, a lot of the hate crimes against Asian Americans really sparked. We saw so many people who were really upset wanting to do something about it. During that time, because of COVID, we had not done anything with ESS. It was still just a YouTube channel.

We had decided to make ESS into a nonprofit organization because we felt that it would be a great way for people to channel their energies and what they want to do to tell Asian American and Pacific Islander stories. You can’t always rally or protest, but you can channel your feelings into a creative project and create something more meaningful, and we figured a nonprofit would be the best way for people to do this.

What is the mission of East Side Stories? What do you hope to achieve and inspire in others through your organization’s work?

ESS’ mission is to serve our creatives and to serve our community through education and storytelling. We hope that ESS is not only going to be a platform where we can spread education and information about being Asian American and Pacific Islander, but that it could be a meeting point for creatives to learn and share information and resources, and to connect with the community. A lot of businesses we see are not able to market themselves, so that’s where ESS would love to step in — “Let’s help you create a fun video to market your business. Let’s tell your story because you’re someone that’s doing amazing work for the community.”

What are some liabilities to think about when working on a film set and working in media production? How do you prepare for these liabilities for your crew and your organization?

We must make sure that our crew members are safe especially because of COVID liabilities, health liabilities, and any type of commercial liabilities. ESS currently operates as a volunteer-based organization so we’re all very bare bones right now. We’ve been using a lot of liability waivers to cover for ESS, but we hope to have more substantial compliance documents in place in the future.

Our Health and Safety Compliance Officer, Tori Wong, is a nurse foremost, and she’s an actress who works in media a lot and is a COVID compliance officer for other big sets. We worked together and created the health and safety protocols, so we follow a lot of what is recommended for standard businesses. For every single shoot that we have, crew members must check in with somebody on set that does COVID compliance. We have COVID compliance officers that go through training. Everyone must wear masks and do temperature checks, and there are particular zones that both talent and crew must stay in.

I know nonprofit insurance and liability is big, but because our organization is so young, and this is all our first time making a nonprofit, it’s been a lot of reading and learning. Taking a stab at the insurance part hasn’t come up yet, but I know it’s coming. We’re still in the process of getting our foundation set up, and then slowly rolling all the compliance into place.

2020 has been a rough year for small business owners, especially those in the Asian American community. Through your encounters and conversations with small business owners and other non-profits, in what ways have AAPI small businesses and the AAPI community demonstrated resilience and solidarity during the pandemic?

We’ve already collaborated with so many organizations and met so many people, and they’re all doing amazing work and bringing together businesses, for example, Welcome to Chinatown, Soar Over Hate, and Asians Fighting Injustice.

AAPI businesses have a fight in them and a huge will to live. That is why we’ve survived for so long, and ESS just wants to capture that. If we don’t amplify what everyone has been doing, people aren’t going to be able to see all the amazing work being done. It will inspire even more organizations to pop up.

Also, no one is afraid to share resources. I can message one organization and say, “Hey, I am trying to connect with someone with an organization who can do XYZ” and they will automatically help me get in touch with them. No one is gatekeeping, and that’s beautiful. That’s what community is about.

Let’s talk about ESS’ upcoming short film “An Essential Delivery”. How does this film capture the challenges and resilience of those working in AAPI small businesses and the gig economy?

This story is about a young woman who lost her marketing job and has to pick up a job as a food delivery worker, and she hides it from her mom, which is not the typical “model minority” story. The film is about essential workers. Shane was the one who came up with the idea after seeing videos of food delivery workers and their hardships. We put together a crew, and for a lot of them it was their first time working on a short. I saw people coming together, and I was blown away by the patience they had and in teaching the newer work crew members. We did it on a very small budget because all the people donated their time. We had around five restaurants that donated their space for us to shoot “An Essential Delivery,” so that was amazing because they didn’t even ask anything back from us.

Let’s talk about your TogethernESS program and your AAPI Community digital series. These provide an opportunity to engage and collaborate with AAPI businesses, organizations, and figures to share their stories. Can you give us insight on the work you do for these?

The TogethernESS program is something that we’re doing for the community. Organizations reach out to us when they want to create something, like a video or graphics, or attain any type of creative service. We can provide them with our nonprofit rate, or we work on a sliding scale with them. We’re still trying to build in a model where we can perhaps provide pro bono. We also want to be able to pay our creatives for their hard work. The TogethernESS program also includes work that we do with Soar Over Hate for their Care Fair event and Asians Fighting Injustice and their rallies. It’s been great so far.

The AAPI Community digital series lives on our YouTube channel. That series is focused on profiles of community members and organizations. When someone on our team has a particular person that they want to do a profile on and it aligns with our mission, we go and cover their story.

What are your goals for ESS in 2021 and beyond? What projects do you have in the works and is there anything you’re particularly excited to share with your audiences?

This year, we’re doing a feature length film documentary on Ace Watanasuparp, the owner of Spot Dessert Bar. Typically, our schedule is three short films a year, and we’re also launching our mentorship program. These are things I’m really excited about for 2022. This year we’ve been shooting a lot of the feature length film, and it’s been really cool to see and connect with all these awesome people. Other than that, just watching the organization grow and seeing and meeting people has been nice and heartwarming.

Man-made and Natural Hazards Both Demand
a Resilience Mindset

This weekend’s ransomware attack that forced the closure of the largest U.S. fuel pipeline provides another powerful illustration of the need for a resilience mindset that applies to more than just natural catastrophes.

Colonial Pipeline Co. operates a 5,500-mile system that transports fuel from refineries in the Gulf of Mexico to the New York metropolitan area. It said it learned Friday that it was the victim of the attack and “took certain systems offline to contain the threat, which has temporarily halted all pipeline operations.”

Individually, the event demonstrates the threat cybercriminals pose to the aging energy infrastructure that keeps the nation moving. More frighteningly, though, it is yet another example of how vulnerable the complex, interconnected global supply chain is to disruptions of all kinds – a message that isn’t lost on risk managers and insurers.

Last year, a ransomware attack moved from a natural-gas company’s networks into the control systems at a compression facility, halting operations for two days, according to a Department of Homeland Security (DHS) alert

The DHS described the attack on an unnamed pipeline operator that halted operations for two days.  Although staff didn’t lose control of operations, the alert said the company didn’t have a plan in place for responding to a cyberattack.

“This incident is just the latest example of the risk ransomware and other cyber threats can pose to industrial control systems, and of the importance of implementing cybersecurity measures to guard against this risk,” a CISA spokesperson said at the time.

Not just energy companies

It isn’t only energy and industrial companies that need to be paying attention. According to cyber security firm VMware, attacks against the global financial sector increased 238 percent from the beginning of February 2020 to the end of April, with some 80 percent of institutions reporting an increase in attacks.

“Cyber is an existential issue for financial institutions, which is why they invest heavily in cyber security,” says Thomas Kang, Head of Cyber, Tech and Media, North America at Allianz Global Corporate & Specialty (AGCS). “However, with such potentially high rewards, cybercriminals will also invest time and money into attacking them.”

He pointed to two malware campaigns – known as Carbanak and Cobalt – that targeted over 100 financial institutions in more than 40 countries over five years, stealing over $1 billion.

An ACGS report shows technical failures and human error are the most frequent generators of cyber claims, but the financial impact of these is limited:

“Losses resulting from the external manipulation of computers, such as distributed denial of service attacks (DDoS) or phishing and malware/ ransomware campaigns, account for the significant majority of the value of claims analyzed across all industry sectors (not just involving financial services companies).”

According to the report, regulators have turned their attention to cyber resilience and business continuity.

“Following a number of major outages at banks and payment processing companies, regulators have begun drafting business continuity requirements in a bid to bolster resilience.”

Not just cyber

The COVID-19 pandemic has taught the world a lot of lessons, not the least of which is how vulnerable the global supply chain – from toilet paper to semiconductors – is to unexpected disruptions. Demand for chlorine increased during 2020 as more people used their pools while stuck at home under social distancing orders and homeowners also began building pools at a faster rate, adding to the additional demand. Such disruptions can ripple through the economy in different directions.

Business interruption claims and litigation have been a significant feature of the pandemic for property and casualty insurers.

When the container ship Ever Given got wedged in the Suez canal – one of the most important arteries in global trade – freight traffic was completely blocked for six days. Even as movement resumed, terminals experienced congestion and the severe drop in vessel arrival and container discharge in major terminals aggravated existing shortages of empty containers available for exports. The ship’s owners and the Egyptian government remain locked in negotiations over compensation for the disruption, and the ship is still impounded.

Spurred in part by this event, the Japanese shipping community is considering alternative freight routes to Europe, both reliant on Russia: the Trans-Siberian Railway and the Northern Sea Route. Neither option is devoid of risks.

In an increasingly interconnected world, there is no bright line distinguishing man-made from natural disasters. After all, the Ever Given grounding was caused, at least in part, by a sandstorm. April’s power and water disruptions that left dozens of Texans dead and could end up being the costliest disaster in state history were initiated by a severe winter storm.

A resilience mindset focused on pre-emptive mitigation and rapid recovery is called for in both cases. There is no “either/or.”

Cannabis Industry Prospects Brighten;
Risks, Challenges Remain

The future looks brighter every day for the cannabis industry.

From recent findings that cannabis components may lead to treatment or even prevention of coronavirus infection in lung cells to yesterday’s vote by the House of Representatives in favor of the Safe Banking Act, barricades to full legalization just keep falling.

This isn’t the first time the act – which would protect banks from federal penalties for doing business with cannabis-related businesses that comply with state laws – has made it through the House. It was first introduced in March 2019, and the House has approved it three times, only to have the Senate Banking Committee block its progress. But with the current Democrat majority, apparent bipartisan support, and growing public and state-government support for cannabis legalization, the fourth time just might be the charm.

Similar federal “safe harbor” legislation for the insurance industry – the Clarifying Law Around Insurance of Marijuana Act (CLAIM Act) – was introduced last month.

“More optimism”

The Drug Enforcement Agency characterizes cannabis as a Schedule I drug, defined as having “no currently accepted medical use and a high potential for abuse.” Without legislative change, banks and insurers can’t do business with business without risking running afoul of federal drug laws.

“There’s more optimism now and an assumption that they’re going to work to pass some of these bills that have been in motion for a while now, but never hit the point of actually moving forward,” said Max Meade, cannabis insurance advisor at Brown & Brown Insurance. “I’m also seeing more conversations around working to bundle some of these bills that they’ve been talking about and do a larger cannabis reform.”

As states continue to decriminalize marijuana to different degrees, one of the biggest issues facing cannabis businesses is the 280E federal tax burden, which means cannabis businesses can’t expense the normal cost of goods or anything a normal business can during the course of operation, from utilities to payroll and rent. This means marijuana businesses often pay federal income tax rates in the 65–75 percent range, compared to 15-30 percent  for other businesses. They are taxed on their gross revenues, unlike all regular businesses, which pay tax only on income after their expenses.

The Small Business Tax Equity Act would provide an exception into the Internal Revenue Code to let cannabis operators – as long as they’re in compliance with state laws – make the same deductions as any other business.

Easier to operate

Passage of these laws would make it easier for cannabis-related businesses to operate. The CLAIM Act would let these businesses obtain insurance to cover the same risks of theft, damage, injury, loss, and liability as all other businesses.  

“There are upwards of 30 surplus lines carriers and several managing general underwriters that currently service the cannabis industry across many lines of coverage,” the National Law Review reports. “There also is a small handful of admitted carriers that operate in California, and most recently in Arizona.”

While market capacity for property, commercial general liability, product liability and workers’ compensation coverage has expanded – these policies remain more expensive than the same coverage purchased by similar companies in other industries. Passage of the CLAIM Act would open the doors for more insurers and should bring the cost of insuring marijuana-related businesses much less expensive.

THC persistence a challenge

But challenges will remain – particularly with respect to the workplace. When marijuana was illegal under both state and federal law, employers would typically prohibit employees or employment candidates from using marijuana off-duty as a condition of employment. But as states have begun to permit medical marijuana, things have gotten a bit hazier.

No state requires companies to accommodate on-duty marijuana use. As with recreational marijuana, no state that permits medical marijuana requires employers to accommodate on-duty marijuana use, possession, or impairment. States will often explicitly state that medical marijuana laws don’t affect an employer’s drug-free workplace policy.

Does workers compensation cover a workplace accident in which the injured employee tested positive for marijuana? Persistence of THC – the main psychoactive compound in marijuana – complicates this question, and state courts have differed on this issue, depending on the individual details of each case.

THC persistence also complicates issues around impaired driving.

Maritime Supply-Chain Vulnerabilities: Why This Won’t Be the Last Time
a Megaship Gets Stuck

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

(Photo by Mahmoud Khaled/Getty Images)

When mega containership Ever Given wedged herself across a one-way section of the Suez Canal during a sandstorm last month, it brought 10 percent of global trade to a halt for a week. The ship – owned by Taiwanese container transportation and shipping company Evergreen Marine Corp. – was finally refloated and traffic in the canal was able to resume.

A Risk & Insurance cover story, published by Triple-I sister organization Risk & Insurance Group (RIG), describes how – in the context of a trend toward larger container vessels and a global supply chain already disrupted by COVID-19 – this incident should serve as a wake-up call for insurers.

Looking at the Ever Given grounding and disruption of canal traffic from a marine insurance perspective, RIG author Gregory DL Morris highlights the impact on cargo insurance claims and the potential for cargo spoilage. He also discusses compromised maneuverability of these massive vessels in high winds and references an increasing number of on-board fires, challenges surrounding salvage, and lack of suitable repair facilities, noting, “Underwriters need to be aware of this.”

Despite the likelihood that immediate property loss in this case will be minimal, megaships pose serious challenges to marine insurance and risk management. According to MDS Transmodal, a transport and logistics research firm, average vessels capacity grew 25 percent between 2014 and 2018, with ultra-large containerships accounting for 31 percent of the total capacity deployed in the second quarter of 2018. Transmodal attributes this trend to industry consolidation through mergers and acquisitions, as well as growing trade lane co-operation through alliances, slot sharing, and vessel-sharing agreements.

Even as traffic through the canal resumes, terminals will experience congestion. In addition, the severe drop in vessel arrival and container discharge in major terminals will aggravate existing shortages of empty containers available for exports. Delays in shipments, increased costs, and product shortages are therefore likely. 

“The fact is that an already heavily disrupted maritime supply chain has taken another hit that will further affect its fluidity, with long-term consequences related to congestions, lead times and predictability,” said Jens Roemer, chair of the Sea Transport Working Group of the International Federation of Freight Forwarders.

While traffic through the canal is now moving, the global supply chain’s vulnerabilities may only now be beginning to become clear.

“Whether a blizzard in Texas or a sandstorm in Egypt,” Morris writes, “the narrow focus on minimal inventories that rely upon just-in-time delivery leaves little allowance for weather or accident.”

Triple-I Paper Takes a Detailed Look at Member-Owned Group Captives

A captive insurance company is a type of risk-management arrangement that essentially works like self-insurance. While “single-parent” captives are financially possible only for large, well-capitalized companies, associations or groups of companies may band together to form a captive to provide insurance coverage. Professionals such as doctors, lawyers and accountants have formed many captives.

A new paper, written by Dr. Patricia Born, Midyette Eminent Scholar of Insurance at Florida State University and Triple-I Non-Resident Scholar, discusses the considerations for these companies from a financial cost and benefit perspective.

The paper, A Comprehensive Evaluation of the Member-Owned Group Captive Option, explains how mid-sized companies seeking to lower their insurance costs and control other aspects of their insurance program might consider the costs and benefits of group captive insurance arrangements.

The paper outlines the numerous benefits of group captive membership, including greater control over risk management concerns and lower costs of insurance. It includes information on the types of companies that use member-owned group captives; the various types of captive arrangements; how they are currently used; where they are located; and legal and regulatory compliance concerns. It also offers several case studies.

“While captives can allow companies a means for managing risks that cannot be placed with commercial insurers, the risks that are reasonably retained by companies in captives have some distinctive characteristics,” the paper notes. For example, the frequency and severity of losses for risks transferred to the captive should be well understood by the company. Also, a company should have adequate experience with the risk to fully appreciate the actuarially estimated expected losses associated with the exposure. The expected losses should also not be catastrophic in nature. Since these losses are infrequent, they can be more effectively pooled by an insurer who has more capacity and more opportunities to diversify its risks.

“Group captives have become an attractive risk management option for a growing number and type of companies,” the paper concludes. “The current hardening in the traditional insurance market makes captives even more enticing and suggests the captive industry will see more growth in the form of new captive formations and increasing group captive membership.”  A hard market, known in the insurance industry as a seller’s market, describes situations when insurance is expensive and in short supply.