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Understanding New York’s New Insurance Disclosure Requirements

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If your organization operates or could be sued in New York, there has been recent activity on the legal and regulatory risk landscape that risk professionals should be prepared for.

New York’s newly-enacted Comprehensive Insurance Disclosure Requirements legislation opens the door for defendants to request that organizations disclose the details of their commercial insurance programs that may apply to a judgment in the case. These details include policy limits and potentially even access to your claims adjusters. For those with more complex risk financing structures, the law may also lead to the misinterpretation of the organization’s coverages.

For the greatest success in complying with this new regulation, risk professionals must become their legal department’s greatest ally, stepping in to lend their expertise to prevent potential confusion and errors. Risk professionals can be integral in keeping sensitive information confidential, monitoring all disclosure requests and alerting their teams to any discrepancies in the interpretation of the shared information.

Additionally, risk professionals should proactively identify the relevant policies for counsel, mindful that the policy or program must potentially respond to the plaintiff’s claim.

What are the New York Disclosure Law’s requirements and how do they impact your insurance program?

The New York law requires that an insured defendant disclose information about any insurance policies sold or delivered in New York that could be applicable to a plaintiff’s claim. This requires careful assessment to ensure compliance while avoiding potentially unnecessary insurance disclosures.

Depending on the claimed amount and a program’s retention levels, disclosures likely include primary insurance policies and may include excess and umbrella policies as well. 

The disclosure requirements extend to various risk financing structures, including captives, self-insurance programs, risk retention groups and surplus lines insurers. Many claims may not reach the retentions, arguably rendering the insurance policies nonresponsive to the claim.

Other than in personal injury protection cases, the New York law requires that insured defendants provide proof of insurance to other parties within 90 days after answering the complaint. This could lead to the disclosure of incorrect insurance information. To address that risk, risk professionals can instruct counsel to obtain the proper COI for a particular claim and advise that it may need to fine-tune their COI process with outside vendors or brokers.

In the cases where arguments are made that COIs are not sufficient proof of insurance, insureds should be prepared to disclose redacted portions of their declaration pages. 

The New York law also requires insured defendants to identify the claims adjustor assigned to the claim, including a potentially surprising level of detail such as the adjustor’s direct email address. It is critical to keep claims adjusters informed and risk professionals should alert their adjustors before this disclosure is made. Immediately report to counsel any plaintiff communications to the adjustor.

What steps can risk managers take to ensure compliance?

If possible, a risk professional or an attorney familiar with insurance coverage should assume responsibility for an organization’s compliance with these disclosure requirements in all New York cases. This will be instrumental in ensuring responses are uniform and avoiding disclosure errors. 

Creating a checklist, as well as a readily accessible library of COIs, redacted declarations pages, and other pertinent information can help keep the organization compliant with New York’s law. Although there might be differing disclosure requirements, organizations with larger footprints should consider extending this structure across other states as well.

By taking these steps, risk professionals can minimize insurance disclosure disputes, assist with their organization’s compliance efforts, and avoid unnecessary interference with an organization’s insurance program.

4 Steps to Help Organizations Embrace Risk from Emerging Technology

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As companies continue to navigate the changing work environment brought on by the pandemic, it has become clear that business leaders will need to get comfortable revising and adapting their strategies to deal with disruption brought on from new technologies and new regulation. As risk management professionals, these rapid changes have made our job more important than ever to our organizations.

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Yet the majority of our organizations—particularly in C-suites—remain far from giving risk management experts the seat at the table they need to effectively safeguard against enterprise threats, digital or otherwise.

Data from PwC’s Global Risk Survey 2022 shows that executives are starting to recognize these risks: 79% of executives report that they view the breakneck speed of digital transformation as a significant risk management challenge. Moreover, this renewed focus is translating into increased funding, as 65% of organizations are increasing their spending on risk management technology and 56% said they planned to invest in risk culture and behavioral risk in 2022.

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Unfortunately, the survey also found that too many organizations are treating the risk function as an add-on or incorporating risk leaders into strategic conversations too late. Only 39% of business leaders reported adding risk professionals to decision-making processes early, which should be an essential step for executives seeking to minimize risk from the outset. On a broader scale, executives seemed to lack confidence in risk managers, with only 47% of respondents saying they feel “very confident” in their risk function’s ability to build a more risk-aware culture, a key element of any successful risk-focused company.

Particularly as companies invest in emerging technologies, business leaders need to listen more to their risk and compliance functions and integrate them into conversations about how those technologies will be implemented. Artificial intelligence is a great example: when companies rush to implement systems to accelerate efficiency and analyze trends, they risk creating disproportionate bias and violating personal privacy through data sourcing. Risk professionals need to be at the table from beginning to end to make sure that an evolving regulatory environment and other pitfalls are fully accounted for in the organization’s implementation process.

While investment in risk management technology is helpful, it is insufficient without making structural changes to the organization to prioritize the risk function company-wide. Particularly as companies consider adopting emerging technologies, the following steps should be considered not just by risk management professionals, but across the C-suite:

  1. Identify, categorize, and prioritize technology risks across the company. This should be done on a regular basis by a dedicated risk management team, married with the best tools available, with findings routinely reported back to senior leaders. Companies are on the right track here: 65% plan to increase their technology spend this year across data analytics and process automation to support detection and monitoring of risks. This initial step will lay the framework for the establishment of cyber threat intelligence, systems monitoring, and incident response protocols.
  2. Adapt IT governance to the emerging technologies being adopted. Risk professionals should work with IT teams and company leadership to create governance structures that integrate seamlessly with corporate strategy, allowing for alignment of day-to-day operations, effective decision-making, a framework for best practices, and promotion of investments that enhance business objectives.
  3. Update leadership often on the emerging tech regulatory landscape. Whether across data privacy rules, cyber reporting requirements, or other complex technology challenges, a robust compliance program should keep leaders across the company updated as new technologies are implemented. Otherwise, companies risk run-ins with legal authorities and the erosion of trust from their clients and customers.
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  4. Set expectations with leadership that not all risks are one and the same. Understanding the context around each piece of technology will become imperative to understanding its specific risks and the appropriate response strategy, including the maturity and complexity of the business processes to determine true risk to the company. Inherent in this case-by-case evaluation is an understanding of the company’s risk appetite and criteria for acceptable level of risk.

When adopted purposefully, emerging technologies can make companies more efficient, more profitable, and better stewards for their employees, clients and communities. Risk is often unavoidable for early adopters of emerging technologies, but it can be mitigated if C-suites equip their risk functions with a holistic strategy and a voice in key business decisions. As C-suites and organizations seek to adapt to a changing world, their success will hinge on the extent to which risk management is incorporated into their strategies.

Recovery in the Aftermath of a Hurricane

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The 2022 hurricane season may be nearing its end, but it is clearly not over just yet. With Tropical Storm Nicole approaching landfall and expected to reach the U.S. as a Category 1 hurricane, Florida residents are once again in storm preparation mode and in the coming days, they will be dealing with the storm’s impact. The aftermath of a hurricane presents many risks—while the storm may be over, the danger is not. Any storm that damages power lines, gas lines or electrical systems, puts you and your business at risk due to fire, electrocution or explosion.

Proceed With Caution

Even once we enter the recovery phase, it is important to take precautions in flooded areas. Never drive across flowing water; a few inches of water may cause you to lose control of your vehicle and as little as a foot of flowing water will carry away a small car. Similarly, avoid wading in floodwaters. They may be contaminated by agricultural or industrial chemicals, or hazardous agents. Remember that standing water can be dangerous as it may be electrically charged from underground or downed power lines.

Before entering a building that has suffered wind or flood damage, conduct a preliminary inspection to make sure it is stable. If there is extensive damage, have a professional engineer or architect certify that it is safe. A professional should also check the gas, water and electrical lines and appliances for damage.

When using a generator for building system power, be sure that the main circuit breaker is off and locked out prior to starting the generator and that there is no exposed electrical wiring or equipment. This will prevent inadvertent energizing of power lines or uninsulated circuitry and help protect utility line workers and building occupants from possible electrocution.

Rebuilding and Restoring

Damage to your business can have a dramatic and far-reaching impact, so it is best to be prepared for the worst. It is natural to want to get back to a storm-hit property as soon as possible, but a little extra caution can go a long way in these circumstances.

Once the property is deemed safe by local officials, specially trained recovery teams in appropriate personal protective equipment can help assess the damage and work with management to implement an action plan to safely get your business back up and running. It is important to photograph and document all damage and notify your insurance agent as soon as possible. Then you can proceed to make temporary repairs to protect the building and its contents.

Preparing for the Future

An average hurricane season produces 14 named storms, of which seven become hurricanes, and three become major hurricanes. Recovery is never a one-and-done proposition—there will always be other hurricanes and hurricane seasons. Regardless of whether or not you experienced damage this year, if your business is in a hurricane prone area, or has the potential for a hurricane, you need to put your hurricane preparedness plan into action by building your hurricane kits, gathering needed supplies, and training your employees in pre- and post-hurricane activities. Do not wait for the next storm to form, as, it becomes increasingly more difficult to acquire the necessary equipment and supplies for your location once a warning has been issued and a storm looming in the not-too-far distance. 

NOAA’s main function is to monitor weather and distribute alerts and warnings. Since 2019, NOAA has been utilizing models that provide a more realistic expected arrival times for storms. Having the ability to better pinpoint a storm’s arrival enables businesses to better prepare their locations and their people for the impeding storm. This technology also helps to reduce loss-of-life and injury, in addition to the potential catastrophic financial impact a hurricane can have on a business.

The recovery period that storm-impacted Florida businesses are in following this year’s storms presents a great opportunity for learning. It is essential that organizations have a process in place to assess weaknesses and strengths in their hurricane readiness plan before the next event. What went well before, during and after the storm? What can be improved or implemented to address any unexpected challenges from this event?

If history has taught us anything, it is that a common thread across the responses to all natural disasters is a lack of awareness and preparation. As one of nature’s most destructive events, hurricanes are powerful and far-reaching, often causing dangerous storm surges that can be felt hundreds of miles inland. With potential maximum wind speeds of 200 mph and the ability to drop more than 2.4 trillion gallons of water in a single day, hurricanes are not to be taken lightly. By identifying areas of vulnerability and taking actions to prepare, businesses can potentially reduce the impacts of a catastrophic hurricane.

Inflation Considerations for Risk Managers and Insurance Buyers

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According to Beazley’s recent Risk & Resilience Geopolitical Report, inflation is a key area of concern for business leaders and they expect economic uncertainty to remain high through to the end of this year. High inflation impacts multiple aspects of corporate decision making, from the changing value of stock to rising employee wages and cost of borrowing. It is interesting to note that worries about inflation differ internationally; in the US, 42% of companies rated it their biggest concern, while only 33% of business leaders in the UK had it at the top of their list. Even more striking is the lack of perceived resilience to inflationary pressure, with 65% of business leaders in the U.S. and 55% globally feeling unprepared to meet the challenge.

US business leaders’ concerns about the impending impacts of inflation are justified, as financial market volatility and losses are currently driving the greatest run-up in prices that the U.S. has seen in four decades. The S&P 500 officially entered a bear market and is down more than 20% since the beginning of the year, and the prevailing sentiment in the U.S. is an expectation that inflation is only going to get worse. U.S. retail sales fell in May as supply chain challenges drove a decrease in major purchases like vehicles, and record high gas prices pulled spending away from other goods. The Federal Reserve raised interest rates to try and reduce inflation, but businesses face a long road ahead as rising prices for everything from groceries to housing influence consumers’ buying power and economic confidence for the foreseeable future.

Inflation’s Impact on the Insurance Market

In light of current economic conditions, the directors and officers (D&O) insurance market is now facing several notable inflationary risks. Inflation and supply chain constraints led to higher costs of goods sold, including both raw materials and transportation/freight costs. If a company cannot or is not willing to pass the price on to the consumer, the margins will be impacted, leading to softer financial results. At the same time, as consumer prices increase due to inflation, companies (especially those in the retail and hospitality industries) may face a market with significantly less discretionary spending, leading to lower volume sales or lower sales overall. 

Amid these challenges, there are several signs pointing to a potential U.S. and, likely, global recession. While unemployment rates have been improving since the all-time highs during the peak of COVID, analysts warn of future mass layoffs. With high unemployment and higher costs, this also poses a risk to employment practices liability (EPL) insurers. Workers may look to recover lost wages through whatever means available, including bringing suits against their employer. A strong EPL policy and relationship with insurance carrier and broker can help during this time where unemployment may swing back the other way. 

Wage and labor inflation also remain a challenge in a tight (though softening) labor market as companies either cannot fully staff their businesses or are spending more to attract and retain talent. Both impact the bottom line. The insurance industry has already seen several supply chain and inflation-driven Security Class Action claims. Various companies have made claims as a result of challenged financials in the wake of strong inflationary and supply chain/labor impact. These were driven by everything from a shortage of staff to deal with consumer demand to slowed production as a result of supply chain constraints, and these cases are just the beginning.

In other lines of business, as inflation continues to rise and products become harder to get, we can expect to see increased crime activity, with higher value attributed to stolen goods due to shortages and inflation encouraging more employee theft. In the cyber market, larger ransom payouts are becoming regular and the costs to buy insurance, negotiate ransomware, and rebuild after a breach are all rising, but the need for more experts is also likely to present challenges as wage inflation rises.

Claims teams are seeing social inflation across most lines of business today, most prominently in bodily injury, wrongful death, EPL, and sexual abuse/molestation liability. This trend is driven largely by the plaintiff’s bar, which has been increasingly emboldened to tap into consumer unrest about everything that is happening in the world today. Jurors’ distrust of larger corporations and their empathy for impacted individuals are increasingly factors that the plaintiff’s bar is leveraging to return higher settlements.  

Increasing Complexity of Corporate Insurance Buying

The conflict in Ukraine was already an inflection point for the insurance markets, with hardening rates and capacity changes anticipated in some specific classes as a result. Now, the wider impact of inflationary pressure is likely to push costs (and, in turn, premiums) higher across all classes. This is bad news for insurers, and ultimately even worse news for the business owners who are insurance buyers.

Inflation brings uncertainty and demonstrates the increasing criticality of insurance in certain key areas. For those trading internationally, trade credit insurance becomes essential. With rising business pressure, D&O and EPL insurance-related risks also rise. Business interruption also becomes more likely in a world where energy supply and supply chains are both less certain. As pricing goes up, whether due to supply chain constraints or wage increases, this cannot help but impact companies’ overall performance, leaving them open to potential litigation from shareholders. In a land of rising costs and rising risks, many business owners may consider protecting their business operations as a continued priority, no matter what happens to cost.

Key Action Steps for Risk Managers

One of the most important things that risk managers can be doing in this landscape is proactively seeking to understand what is happening in the world. This includes considering not only the risks that are present, but also what is happening as a result of the inflation and social inflation trends we are seeing—namely higher costs and more pressure from the plaintiff’s bar.

With this understanding in hand, risk managers are then well-advised to call upon trusted experts, including brokers, insurance partners and third-party vendors who are available to test systems and table-top strategies. The priority should always be to find the best vendors and build long-standing relationships with them. This is the time to leverage that trust.

It is essential to be proactive when it comes to risk management. Do not wait for a crisis to come in the door and then behave reactively. Rather, prepare yourself with education and resources and then, after identifying risks unique to your business, proactively seek to mitigate them.

As inflationary risks look to be with us for the immediate future, it is critical for organizations to have a plan. Use your enterprise risk management strategies to develop responses to potential economic and geopolitical events. Communicate regularly and conservatively with shareholders. Consider diversifying your supply chain, as working with different suppliers can add to the confidence level of meeting demand levels. It is also important for businesses to demonstrate empathy for the suffering and hardships that employees and customers may be experiencing.

Many of today’s senior business leadership have not dealt with inflation, unlike the previous generation of leaders who endured double-digit inflation in the 1970s and early 1980s. Use data and rely on the experience of management that survived the Great Recession of 2008 to 2011 to help navigate these new concerns. And of course, work with your carrier partner to ensure that you are properly covered for the road ahead. If COVID-19 has taught us anything, it is that companies must be prepared and plan for the unexpected. This adage will continue to prove true as we weather the coming period of inflation-driven challenges.