Category Archives: Claims Management

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The Riskiest States for Employee Lawsuits

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In 2014, U.S. companies had at least an 11.7% chance of having an employment charge filed against them, according to the new 2015 Hiscox Guide to Employee Lawsuits. The firm’s review of data from the Equal Employment Opportunity Commission and its state counterparts found that the risk also varied notably by state, as local laws creating additional obligations—and risks—for employers led to charge rates up to 66% above average.

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STATES WITH THE HIGHEST EMPLOYEE LAWSUIT RISK

State laws that are driving some of this increased employee charge activity include heightened anti-discrimination/fair employment practices, the use of E-Verify in the private sector, pregnancy accommodation, prohibitions on credit checks, and restrictions on inquiring about or requiring background checks.

Key state laws driving increased employee charge activity

These cases can be especially damaging for small- and mid-sized enterprises, with 19% of employment charges among SMEs resulting and defense and settlement costs averaging $125,000 and taking about 275 days to resolve. The average self-insured retention for these charges was $35,000, Hiscox found, and without employment practices liability insurance, these companies would have been out of pocket an extra $90,000. What’s more, 81% resulted in no insurance payout, giving even nuisance charges the potential to be a serious financial hit. While the majority do not end up in court, when they do, the median judgment is about $200,000, not including defense costs, and 25% of cases result in a judgment of $500,000 or more.

During the hiring process, written procedures that outline and comply with federal and state laws can help minimize risk, as can maintaining a customized employee handbook that all staff acknowledge in writing they have reviewed. In addition to risk transfer, such as an employment liability insurance policy, Hiscox offered several tips to best mitigate the risk of employment charges, including:

Independent contractors

Be careful when designating independent contractors. There are variations among states and areas of law as to the test for an independent contractor. It is possible for a worker to be considered an independent contractor for some purposes and an employee for others.

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Leaves of absence and accommodation for disabilities

A medical condition can trigger federal and state leave and disability laws, which vary, as well as workers compensation laws. Make it a policy to recognize events or discussions that create an obligation to discuss accommodations or a possible leave of absence.

Employee performance

Ensure that all supervisors and managers are aware of the procedure for addressing unacceptable employee performance. Communicate to the employee about what they are doing (or not doing) that is unacceptable, and make sure they understand what constitutes acceptable performance. Document all communications. Conduct factual, honest performance evaluations. Develop and maintain a procedure for corrective action plans.

Termination

To minimize litigation around termination, avoid surprises. Make sure that all guidelines have been followed for addressing unsatisfactory performance, particularly the corrective action plan. Prior to termination, assess the risk for litigation: is the employee a member of a protected class, involved in protected labor activities, or a potential whistleblower? Is the employee under an express or implied-in-face employment contract?

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Gather and review the documentation that supports the termination and interview relevant players.

As Technology Gets Smaller, Risks Get Bigger

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MicroElectronics

Microelectronics is changing the way we live, work and do business. With circuitry thousands of times smaller than a human hair, microelectronics has become the brains behind almost every business. But shrinking technology makes equipment more vulnerable to breakdowns, especially when it’s portable and fragile. To manage the risk, you need to keep up with these evolving exposures to protect your organization from loss.

Insurance is changing as well, to reflect this new technology. Think of all the equipment that relies on micro-circuitry. From building systems to communications, if it uses electricity, it likely operates with tiny transistors and microprocessors. Our claims data shows that micro-circuitry is prone to break down and is difficult to repair.

Yet, most property coverage does not cover equipment breakdowns and typical equipment breakdown insurance requires proof of physical damage. That can leave a business without coverage for repair or replacement, business interruption and data loss caused by today’s technology losses, unless the policy specifically covers microelectronics failures.

When electronics fail, the components are so small it may be difficult or impossible to see the damage. How small? Intel Corporation reports that more than 100 million of its 22 nanometer tri-gate transistors could fit onto the head of a pin; more than six million transistors would fit in the period at the end of this sentence.

With each innovation, the technology also becomes faster, more powerful and more complex. Transistors are the building blocks of integrated circuits, with billions of transistors integrated and interconnected with circuitry baked into a single microchip. Integrated circuits are used in microprocessors to run computers and programmable devices.

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What’s more, the technology is changing so rapidly, it is hard for most people to keep up. And that’s the challenge for business, industry, and their insurers. In the marketplace, new technology isn’t about theory and experimentation—equipment is an investment and a breakdown can be costly and disruptive.

The evolution of equipment with circuit board technology is causing equipment to fail differently than with previous technology. Microelectronics makes equipment more vulnerable to a breakdown, especially since it’s frequently used in the field. Increasingly, equipment damage is not detectable and sometimes not even physical.

Equipment may stop functioning for no obvious reason, with no apparent physical damage. If a wire one micron wide breaks, it’s almost undetectable. Most electronic equipment requires firmware, embedded software instructions that can become corrupted. The equipment stops working, but it’s not because of physical damage.

With the internet and cloud computing, a loss may also be virtual. Studies show the majority of U.S. businesses use the cloud; some estimates report that up to 75% or more use some type of cloud services. The loss of internet broadband service and cloud connectivity can cripple many business operations.

Gartner Incorporated, the information technology research and advisory company, estimates there will be 26 billion connected devices by 2020. Already, Wi-Fi connections and radio-frequency identification using sensors and monitors enable the remote management of everything from retail business inventories to building thermostats.

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It’s difficult to predict when the next leap will come in new technologies for microelectronics. In what seems like science fiction, some researchers aim to break through the limits of conventional electronics using silicon chips by integrating biological and nanoelectrical systems.

What will this mean for business and industry?

Some of the old concepts of property insurance, developed over a century ago, may no longer serve businesses and insurers as well. Technology is too complex. In a digital world, we live and work online. Technology connects us and provides the tools to communicate, create products and deliver services. Data is what drives a successful business.

For decades, the trigger for equipment breakdown and other property insurance has been based on loss due to physical damage that can be observed and identified. As more equipment breakdowns involve micro-circuitry, however, it’s time to take a different approach.

When purchasing equipment breakdown insurance, ask what “failures” are covered for micro-electronics. There should be no additional sublimits or deductibles—microelectronics claims should be like other equipment breakdown losses. Are cloud services covered under service interruption? Is data restoration included? When does off-premises coverage apply?

Insurers must offer new and innovative products and insurance solutions to cover today’s micro-technology for breakdowns. In a complex world, it’s as simple as that.

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Katrina’s Lessons in Windstorm Risk Management

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Hurricane Katrina, which pummeled the Gulf Coast of the United States 10 years ago on Aug. 29, has proven to be the deadliest and costliest disaster on record. The 2005 Atlantic hurricane season was the most active in recorded history with more than 30 tropical and subtropical storms, including 15 hurricanes.

According to the study, Hurricane Katrina 10: Catastrophe Management and Global Windstorm Peril Review by Allianz Global Corporate & Specialty, it was predicted that hurricanes would become more frequent and intense after 2005, however, “In reality, the exact opposite has occurred,” Andrew Higgins, technical manager, Americas at Allianz Risk Consulting explained in the report. Instead, there has been a reduction in Atlantic hurricane activity during the last 10 years, with 2013 seeing the fewest Atlantic basin hurricanes since 1983. “These results illustrate the fact that we do not fully understand the complex climate variables that affect hurricane activity,” he said.

Because Katrina’s impact was so devastating and widespread, many changes have since been made. New Orleans has built a new system of levees, for example. Flooding caused by Katrina revealed the state of the levee systems in the U.S. to be substandard and in need of repairs estimated at $100 billion,the National Committee on Levee Safety found. “There are many levee systems throughout the U.S. that would reveal similar deficiencies if subjected to the same level of scrutiny as those in New Orleans,” according to the study.

“Katrina will always be remembered as an extraordinary natural disaster that affected millions of individuals and businesses and left an indelible impact on the global insurance industry,” Hugh Burgess, head of corporate lines at AGCS, said in a statement. “Even without considering the influence of climate change, the prospect of increasing losses due to storms is more of a result of continued economic development in hazard-prone developed coastal areas. Preparedness limits windstorm exposure and Katrina has taught us many lessons on this front.”

Top lessons from Hurricane Katrina:

1. Storm surge impact and risk modeling

“Storm surge modeling prior to Katrina essentially assumed that the height of the storm surge was a function of the maximum sustained winds,” Higgins said. “Katrina clearly showed that there are other factors that affect storm surge height… We have learned that in addition to wind speed, the physical size of the hurricane can affect the storm surge. Camille’s hurricane-force winds extended 60 miles from the storm center, while Katrina’s extended 120 miles. The larger size of Katrina was a major factor in pushing more water onto the shore.”

2. Flooding threat

The flooding caused by Katrina showed that the conditions of the levee systems in the U.S. are very poor. “The 2013 Report Card for America’s infrastructure developed by the American Society of Civil Engineers rates the levees in the U.S. as a D-,” Higgins said.

3. Wind damage prevention

Substantial wind damage occurred to structures that experienced hurricane force winds from Katrina, despite the fact that the recorded wind speeds were less than the wind design speeds. So what happened? “Most of the wind damage occurred to the building envelope,” Higgins explained. “That includes the roof covering, walls and windows. If the building codes had been strictly followed, the wind damage would have been greatly reduced. Poor workmanship and a lack of knowledge were the primary culprits.” He added, “Today, the Gulf Coast is in a better position to withstand the effects of a hurricane due to better education, improved construction guidelines and increased third party inspection.”

4. The importance of business continuity

After widespread catastrophes businesses typically relocate, meaning the client base can diminish until recovery progresses. The key to recovery is to establish a plan in advance that identifies clear priorities for attention to crucial operations, so the business can get back up-and-running as quickly as possible.

5. Insurance coverage issues

While insurance claims settlement levels from Katrina were high, it’s imperative to know what’s protected ahead of time. Many insureds were surprised to find out they were not covered for storm surge losses, the main coverage issue resulting from the storm. Whether damage was caused by wind or water became a key focus of post-Katrina litigation.

6.  Unexpected impact of demand surge

Demand surge is a post-catastrophe complication which can have not only catastrophe-related consequences in terms of rising prices due to a shortage of available goods, but other loss consequences as well. For example, a shortage of American-made drywall because of the demands of rebuilding led to a significant increase in imports of defective drywall manufactured in China. This resulted in a number of environmental issues and eventual litigation, particularly in the storm-affected states of Florida and Louisiana.

Allianz concluded that businesses need to start early to prepare for the worst-case scenario. “Businesses need to be sure to have tested business continuity plans and especially communications cascades in place and have insurance policies at a safe location,” advised Andreas Shell, Head of short-tail claims at AGCS. “Creating a separate booking account to which businesses can record hurricane-related damages to easily identify the loss incurred can also help.”

Terry Campbell, regional claims head, Americas at AGCS noted that every company should take these steps to ensure the claims settlement process runs as smoothly as possible after a windstorm event: “Follow the protocol outlined in the catastrophe response plan. If there isn’t one in place, one should be immediately developed for that event. Ensure there is adequate staff to respond and that there is ongoing communication to include scheduled meetings to discuss progress as well as issues, problems etc. These can be done as frequently as necessary,” he said.

Potholes Cost NYC $27.6 Million in Settlements Per Year

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potholes infrastructure municipal risk

Earlier this month, the transportation research group TRIP found that more than 80% of the major roads and highways in the New York City and Newark metropolitan areas were in poor or mediocre condition—the country’s seventh worst ranking among cities with more than 500,000 residents. According to the report “Pothole City: A Data-Driven Look at NYC Roadways,” released yesterday by New York City Comptroller Scott M. Stringer, this crumbling infrastructure has cost the city’s taxpayers over $138 million in the past six years—an average of $27.6 million per year.

The city’s failure to prioritize and effectively manage repairs of potholes on city roads has resulted in 12,268 property damage defective roadway claims and 5,913 personal injury defective roadway claims between fiscal years 2010 and 2015. Of the claims filed, 1,549 property damage claims were settled at a cost of nearly $1.5 million, while 2,681 personal injury claims were settled to the tune of $136.3 million.

The city’s potholes, Stringer said, are a “persistent and pervasive” problem that “deflate tires, break axles and twist ankles, often at a significant financial cost to the city.” His findings are part of an initiative introduced last year called ClaimStat Alert, which aims to identify patterns in claims made against the city in an attempt to reduce the amount paid in settlements, the New York Times reported.

In February 2014, Mayor Bill de Blasio and Department of Transportation Commissioner Polly Trottenberg announced a series of steps to try to improve pothole maintenance, including weekly “pothole blitzes,” citywide targeted repaving, an asphalt engineering technology challenge, and an emphasis on impact prevention. Yet the difficult winter proved quite a challenge.  The average time to close a pothole work order in the first four months of FY 2015 was 6.7 days—nearly triple the 2.4 days during the same period in FY 2014, according to the report. The city stated that, while repair times were “atypically high” through the first quarter of FY 2015, they were “returning to normal levels by October 2014.” Stringer’s report did note, however, “to its credit, the DOT filled over 74,000 potholes (arterials and local streets) in the first four months of FY 2015, a 60% increase over the same period in FY 2014.”

The severe winters felt by the whole Northeast have correlated closely with the number of pothole claims—a predictor many cities may need to weigh more heavily when making weather preparations and budgets.

Snowfall and pothole claims

But patching does not present the best long-term investment of city funds, Stringer said. While the city has initiatives to make patching more efficient, the report said “a more cost-effective, long-term solution may be a complete reconstruction of certain city streets.”

Other financial drains due to road conditions include improperly restored streets and intersections following utility work, milled roadways and hummocks. The comptroller’s office recommended several municipal risk management tactics to tackle these potential claims generators, including:

  • Re-evaluating DOT protocols to ensure that restoration work conducted after street work is properly done. While private companies and utility providers such as Consolidated Edison and Verizon are required by the New York City Administrative Code 18 to maintain the area 12 inches around manholes, vaults and plates flush with the road surface, restoration work following construction sometimes does not match that standard. In addition, the NYPD should also perform spot checks to make sure that contractors performing street work in their precincts have proper permits.
  • Roadways are generally paved in a two-step process. A layer of the old roadway is scrapped off (milling), followed by the introduction of a layer of new asphalt. When the street is milled, it presents a hazard to pedestrians and vehicles using the roadway, and yet there is often a delay in repaving roadway. DOT should examine the extent of these delays and modify its procedures to insure that milled roadways are repaved as soon as possible.
  • Hummocks are variations in road conditions where asphalt is pushed up in a wave-like shape. In many cases, parked buses cause this condition on account of their weight and design. Given the trip hazard posed by hummocks, DOT should work with the MTA and private bus companies to explore the feasibility of using different pavement that is less likely to result in hummock conditions where buses commonly park.

For more about the public risk management challenges of roadways and bridges, check out Caroline McDonald’s article “A Bridge Too Far: Repairing America’s Aging Infrastructure,” from Risk Management magazine.