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Confronting D&O Insurers’ Efforts To Carve Back Subpoena Coverage

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Whether a government subpoena constitutes a “claim” is a frequently contested issue between D&O insurers and their policyholders. D&O policies—at least with respect to coverage for private companies and individual insureds at any company—typically define “claim” through multiple subparagraphs: first, a broad and generalized subparagraph that usually references a “written demand for monetary or non-monetary relief,” followed by several narrowly framed subparagraphs that address more specific situations, such as “a civil or criminal proceeding commenced by the service of a complaint or similar pleading.” Most courts have held that generalized language, such as any “written demand for . . . non-monetary relief,” must be read expansively to encompass government subpoenas.

Insurers trying to avoid covering costs incurred by policyholders in connection with government subpoenas sometimes respond to these decisions by arguing that the generalized subparagraph should not be read broadly if one or more subsequent specific subparagraphs reference government subpoenas (or government investigations). For instance, an insurer may argue that a subparagraph expressly providing coverage for government subpoenas issued to individuals implicitly narrows the meaning of “written demand for . . . non-monetary relief” to foreclose coverage for government subpoenas issued to corporate entities. Similarly, an insurer might contend that a subparagraph explicitly providing coverage for subpoenas issued by the Securities and Exchange Commission implicitly narrows the meaning the meaning of “written demand for. . . non-monetary relief” to preclude coverage for subpoenas issued by other government agencies. Policyholders should be prepared to reject such arguments, as they ignore both well-established law regarding the interpretation of insurance policies (which prohibits insurers from limiting coverage by implication) and the typical structure of D&O policies (which contemplates that the subparagraphs defining “claim” will complement, not limit, each other).

First, it is well settled that provisions in an insurance policy setting forth the scope of coverage must be understood in their most expansive and inclusive sense for the policyholder’s benefit, while language that would limit coverage must be narrowly and strictly construed against the insurer (especially where that language would negate coverage provided elsewhere in the policy). Additionally, courts and commentators agree that any limitations on coverage must be stated in clear and unmistakable terms and cannot be extended by implication. Further, to the extent that there are any ambiguities in a policy’s terms, those ambiguities must be resolved in favor of coverage. Given these rules of construction, insurers have no basis to argue that a specific subparagraph in the definition of “claim” implicitly removes coverage that would otherwise be available under the generalized subparagraph.

Second, the multiple subparagraphs defining “claim” are intended to supplement, not restrict, each other. Insurance policies are often drafted with what courts have referred to as a “belts and suspenders” approach, and the definition of “claim” in D&O policies is one such example, where the generalized subparagraph is the belt ensuring coverage for a broad range of losses, whether or not they are enumerated in the specific subparagraphs, and the specific subparagraphs are the suspenders providing additional certainty on issues of particular importance to a policyholder. This additive approach to defining “claim” is also mandated by the use of the connector “or” between subparagraphs, a word that courts have consistently held requires that each of the connected provisions be given separate meanings that do not modify each other. This reading is also consistent with the many court decisions holding that a “written demand for . . . non-monetary relief” includes government subpoenas, as those courts reached their rulings despite the presence of multiple specific subparagraphs in those policies’ definitions of “claim.”

For these reasons, policyholders faced with an insurer attempting to deny or restrict coverage for government subpoenas by implication should be prepared to respond forcefully and push for coverage under the broad and generalized subparagraph that promises coverage for any “written demand for monetary or non-monetary relief.”

Implications of Flood Risk

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Across the vast geography of the United States, flood is no stranger to any of the states. From the March 2018 Nor’Easters that slammed the East Coast to the numerous storms and hurricanes that have swept across the country, both coastal and non-coastal regions are all at risk of flood.

FEMA reports that 98% of the U.S. counties have been impacted by a flooding event in the past, and 2016 and 2017 are examples of both the frequency and severity that the peril poses. According to Munich Re’s Geo Risks Research, there were more floods in the U.S. in 2016 than any year on record. Hurricane Harvey, the eighth named storm in the 2017 Atlantic hurricane season, caused large flood losses and is reported as the second costliest hurricane in U.S. history after Hurricane Katrina. Major losses from Katrina were caused by flooding due to levee failure.

The National Flood Insurance Program (NFIP) was enacted by Congress with three main pillars: affordable insurance, floodplain management and flood mapping.  Since its inception, the program has helped thousands of home owners with total claims exceeding $65 billion. The NFIP’s role in aiding homeowners was evident during the weeks and months following Hurricane Harvey. According to FEMA, as of January 2018, more than 91,000 NFIP policyholders had filed claims for Hurricane Harvey, and FEMA has paid more than $7.6 billion in losses to those policyholders. the economic losses of Hurricane Harvey, however, are likely to reach $85 billion. Even after considering the commercial insured losses, the gap between the insured and economic losses, known as the “protection gap,” is huge.

Based on events like Hurricane Harvey and Superstorm Sandy it is likely that as many as 80% of the homes in Houston were not insured for flood. In fact, according to the Insurance Information Institute, only about 12% of the home owners in the United States purchase flood insurance; this statistic is even lower in inland states. The number of NFIP policies in the Mississippi River states (which excludes Louisiana) is about 5% of the total NFIP program. Using current building stock data from Homes.com, this would make the purchase rate for flood insurance in the Mississippi states at less than 2%.

Why is there such a large protection gap and why is it important to narrow this gap?

A Floodzonedata.us study by the New York University (NYU) Furman Center found that there are about 6.9 million housing units within the 100-year flood plain as defined by FEMA. According to a February 2018 scientific study in IOPscience, however, “Estimates of present and future flood risk in the conterminous United States,” the actual number of exposed houses could be as high as 15.4 million. In addition, a September 2017 audit by the Department of Homeland Security Office of Inspector General noted that, as of December 2016, only 42% of FEMA’s flood maps are up to date and valid. Both Superstorm Sandy and Hurricane Harvey demonstrated several instances of FEMA maps being inadequate to evaluate the extent of flooding.

Extreme events like Harvey should be viewed as an opportunity for resilience initiatives.  Jeffrey Heberg, Chief Resilience Officer for New Orleans, notes that the key to resilience is insurability. In fact, studies highlight the importance of high insurance penetration and the correlation to strong resilient countries.

The stark contrast in the insurance penetration between Chile, Haiti and New Zealand provides an example of the impact the insurance industry can have towards financing the losses from major catastrophes. Following earthquakes in 2010, New Zealand and Chile showed faster recovery due to high insurance penetration and thus the ability to absorb losses, whereas Haiti went through a very slow recovery process due to the lack of catastrophe (re)insurance.

While insurance is an important factor, financial resilience through insurance is not enough. There is a further need for a comprehensive approach to mitigate severe natural catastrophes. This is when public private partnerships (P3s) play a crucial role. In New Zealand, the government-owned earthquake commission, with reinsurance in the global market, resulted in insurance penetration of up to 80%. A similar example of P3 in the United States is the reinsurance protection sought by FEMA to reinsure the NFIP against extreme events.

Public private partnerships rely on the government’s ability to ensure adequate loss prevention, build physically resilient structures and implement forward-looking municipal planning (such as futuristic view of flood maps and flood plain management). If people reside in and build more resilient structures, not only can it help save lives, but the cost of insurance could be less, and the probability of loss and recovery time will be less for communities.

It is not only important to focus on building resilient communities to help protect them from natural catastrophes, it is now becoming a crucial requirement for cities and states.  Standard & Poor’s emphasizes the importance of disaster insurance arrangements on sovereign financial resilience. The September 2015 Standard & Poor’s Rating Report notes that a lack of insurance coverage for significant catastrophic events could negatively impact sovereign ratings resulting in a downgrade. As recent as November 2017, Moody’s reported the incorporation of climate change into its credit ratings for state and local bonds. This would mean that communities, cities and states may get downgraded unless they show sufficient adaptation and loss mitigation strategies.

The time for resilience is now. As geographic regions that were once sparsely populated are now filled with burgeoning cities there is so much more at risk from today’s extreme weather events. Insurance can play a role in helping communities recover. Insurance alone, however, is only a partial solution. We also need to build resilient communities to help mitigate the damage caused by flood.

Hawaii Volcanic Activity Reinforces States’ Need for Catastrophe Planning

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Recent volcanic activity in Hawaii has turned national attention to emergency preparedness planning. As previously reported, the Kilauea eruption lessened but caused aftershocks, lava flow and lingering hazardous fumes in nearby areas. About 1,800 people live in the area, which was ordered to be evacuated last week by Hawaii County. No deaths or injuries have been reported.

On May 9, two more actively erupting fissures from the Kilauea volcano opened near Lanipuna, a neighboring community to the already affected Leilani Estates. Fox News reported that first responders went door to door to ensure everyone in the community was safely evacuated. At least 14 fissures are now open from Kilauea—considered one of the world’s most active volcanoes—with some releasing toxic gases and others spewing lava, at times at least 200 feet into the air.

Hawaii Gov. David Ige signed a Presidential Disaster Declaration request, asking President Donald J. Trump to declare the state a major disaster as a result of the ongoing seismic activity. Gov. Ige also requested assistance from the Federal Emergency Management Agency (FEMA), citing the unpredictable nature of the volcano, the number of structures destroyed, and the fact that residents may be unable to return to their homes for an undetermined amount of time.

Gov. Ige said in his Presidential Declaration request:

As more fissures open and toxic gas exposure increases, the potential of a larger scale evacuation increases. A mass evacuation of the lower Puna District would be beyond current county and state capabilities, and would quickly overwhelm our collective resources. Federal assistance would be necessary to enable us to successfully conduct such large-scale operations.

CBS reported that many people in the affected communities live in “lava zone one,” a high-risk area. Lava insurance doesn’t exist and homeowners’ insurance is very expensive, so some are going to be left on their own to try and rebuild.

With all these events, however, visitors to Hawaii.gov will find very little, if anything about the volcanic eruption on the state’s homepage [see screenshot]. Instead, there is much about the mild weather and announcements of a groundbreaking ceremony for a road pavement rehabilitation and the modernization of its payroll system. All-in-all, it’s difficult for the public to gage imminent dangers, such as the dangers of molten lava on the site. Visitors, as well as residents, need to navigate to the Residents Page to find the Emergency Information.

What Other States Can Learn
While volcanic eruptions may be relatively infrequent in the continental United States, the threat exists: There are 169 active volcanoes in the U.S., and 54 of them are considered high threats by the United States Geological Survey (USGS). Washington is one state that is proactive in its planning, and May just happens to be when it observes Volcano Preparedness Month. Washington has had five active volcanoes: Mount Rainier, Mount Baker, Mount Adams, Glacier Peak, and Mount St. Helens. The latter volcano erupted in 1980 and demonstrated the disaster potential of volcanoes, causing an estimated $31 million in insured losses. That eruption killed 57 people and left dramatic changes to the landscape. It undoubtedly impacted state officials, who regularly include environmental and natural disasters in their strategic plans.

King County, Washington is in close proximity to these volcanoes and has a page dedicated to volcanic activity. It explains how its active volcanoes pose different threats from Hawaii’s:

Unlike Hawaiian volcanoes that ooze molten lava, volcanoes in the Pacific Northwest are known for sending choking ash, hot rocks, and poisonous gases high into the sky. Lahars, which are deadly mixes of hot mud, ash, and other debris, are also a big concern.

It also advises how residents and businesses should prepare and react in the event of an eruption. After ashfall:

  • Wear goggles to protect your eyes and long-sleeved shirt and pants to protect your skin.
  • Clear roofs and rain gutters of ashfall. Ashfall is very heavy and can cause buildings to collapse. Use extreme caution when working on a roof.
  • Avoid running vehicle engines. Driving can stir up volcanic ash that can clog engines, damage moving parts, and stall vehicles.
  • Avoid driving in heavy ashfall unless absolutely required. If you must drive, keep the speed down to 35 MPH or slower. Be prepared to change oil, oil filter, and air filters frequently (every 50 to 100 miles in heavy dust and every 500 to 1,000 miles in light dust).
  • As much as possible, keep ash out of buildings, machinery, air and water supplies, downspouts, storm drains, etc.

In 2017, King County co-hosted a climate change resiliency summit with the United Kingdom’s consulate to assess the physical geography and explore better emergency preparedness plans.

Risk Manager of the Year Honor Roll Member Jennifer Hills already had natural disasters on her radar. The director of risk management for King County, Hills is continually learning about the practical threats of a natural disaster and the county’s resiliency.

“We’re now looking at where emergencies and climate change should be on our risk register,” she told Risk Management magazine earlier this year, adding that she frequently collaborates with the county’s climate change and emergency management offices. “There’s a lot we’re understanding about King County’s exposures to natural disasters and we’re planning for those risks and how to mitigate them.  There’s a lot of untapped resources we may need to open.”

Hawaii Volcano Subsides, Aftershocks Continue

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Volcanic activity from the Kilauea eruption in Hawaii has lessened, although aftershocks, lava flow and hazardous fumes continue in some areas, the Hawaii Volcano Observatory reported yesterday. Aftershocks from Friday’s magnitude-6.9 earthquake also continue, with more expected, including larger aftershocks potentially producing rockfalls and associated ash clouds, according to the United States Geological Survey.

So far 12 fissures have emerged, sending lava into the Leilani Estates and Lanipuna Gardens subdivisions, where 35 structures have been destroyed, according to the Hawaii County Civil Defense Agency. About 1,800 people live in the area, which was ordered to be evacuated last week by Hawaii County. No deaths or injuries have been reported.

Authorities began allowing residents of Leilani Estates to retrieve their belongings on Sunday, while Lanipuna Gardens remained closed because of dangerous volcanic gases. The civil defense agency had previously warned about the threat of high levels of deadly sulfur dioxide gas in the area—released from magma no longer contained by the earth’s pressure.

According to Munich Re, about 550 volcanoes are classed as being active worldwide, with between 50 and 65 of them erupting annually. Active volcanoes in the United States are found mainly in Hawaii, Alaska, and the Pacific Northwest. The 1980 eruption of Mount St. Helens in Washington state demonstrated the disaster potential of volcanoes, causing an estimated $31 million in insured losses. The eruption killed 57 people and left dramatic changes to the landscape.

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The Insurance Information Institute lists the damages caused by volcanos which are, and are not, covered by insurance:

What is covered

  • Most home, renters and business insurance policies provide coverage for property loss caused by volcanic eruption when it is the result of a volcanic blast, airborne shockwaves, ash, dust or lava flow. Fire or explosion resulting from volcanic eruption also is covered.
  • Homeowners and business owners’ policies also provide coverage for property damage, vandalism or theft due to looting if the occupants are displaced.
  • There is typically a 72-hour waiting period before business interruption coverage kicks in.
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  • Damage to vehicles caused by lava flow is covered under your auto insurance policy if you have comprehensive coverage, which is optional. Direct, sudden damage to engines from volcanic ash or dust is also covered under most policies.

What is not covered

  • Most home, renters and business insurance policies do not cover damage from earthquake, land tremors, landslide, mudflow or other earth movements regardless of whether or not the quake is caused by or causes a volcanic eruption. Earthquake insurance is available from private insurers as an endorsement to a homeowners policy, and in California from the California Earthquake Authority, a privately funded, publicly managed organization.
  • Damage to land, trees, shrubs, lawns, property in the open or open sheds (or the contents of those sheds) is typically not covered.
  • The cost to remove ash from personal property is generally not covered unless the ash first causes direct physical loss to personal property. There is also no coverage to remove ash from the surrounding land.
  • Business interruption insurance does not kick in unless you have an endorsement to your business owners policy for earthquake and volcanic eruption and:
    • there is direct physical damage resulting in suspended operations;
    • there is physical damage to other property that prevents customers or employees from gaining access to the business;
    • the government shuts down the area, preventing customers or employees from gaining access to the premises.
  • The damage that occurs to homes, businesses or vehicles over time due to volcanic dust is not covered under most policies.

Volcanic effusion (i.e. volcanic water and mud) is not covered under a typical homeowners, renters or business insurance policy. However, it is covered by flood insurance, available through the National Flood Insurance Program.