Category Archives: Insurance

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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.

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.

Recovery Tips in the Wake of Hurricane Ian and Hurricane Fiona

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Across the Caribbean, Florida, and up the Eastern seaboard to Atlantic Canada, communities are facing devastation from a recent—and ongoing—spate of mid-season hurricanes.

Ian follows right on the heels of catastrophic damage from Hurricane Fiona. In the Caribbean, 20% of residents in Puerto Rico are still without power after Hurricane Fiona, and the island took another pummeling from Hurricane Ian while it was a Category 4 storm. To the north, post-tropical storm Fiona inflicted catastrophic damage across parts of eastern Canada last week, causing devastating property damage and leaving hundreds of thousands of Canadians without power. While it is too early for complete estimates, ratings agency DBRS Morningstar projected the insured losses may fall in the range of $300 million to $700 million. According to Patrick Douville, DBRS’s vice president of insurance, “Fiona will likely be one of the largest catastrophic events in history for Atlantic Canada.”

Once it is safe to do so, risk managers will have considerable work to do to help their organizations and communities recover.

Dalton advised, “Additional steps businesses should take include engaging a professional claims preparation firm to help document the claim, preparing a daily timeline of impact and changes to operational activities, asking for a cash advance, and setting up a cost tracking code and/or general ledger account to capture incident-related expenses. If it’s a contingent loss, meaning operations are down because of physical damage to a customer or supplier, ask that customer or supplier send you documentation of their physical damage and ask them to communicate with you as much as possible.”

In the July/August cover story from Risk Management Magazine, “Hurricane Claims: Key Tips to Minimize Losses and Maximize Recovery,”attorneys Andrea DeField and Alice Weeks offered guidance on steps for risk and insurance professionals to take before, during and after hurricanes, including hurricane preparation and response checklists.

For organizations impacted by this season’s storms, the following post-storm tips can help risk professionals navigate disaster recovery and the claims management process:

Post-Storm Checklist

  1. Gather insurance policies and related insurance records. If your policy was destroyed or is lost, contact your insurance company or agent/broker to request a copy.
  2. Contact other business partners who may have copies of your insurance policies and records, such as attorneys and accountants.
  3. Give written notice to your broker and insurer immediately. Notice should provide the following basic information:
    1. Name and address of insured
    1. Location of loss
    1. Date and time of loss
    1. Contact name, phone and fax number
    1. Brief description of the loss
  4. Acquire copies of police or fire reports from your local police or fire department, if applicable. If individuals caused damage to the premises or stole anything in the wake of the disaster, obtain a separate police report about the damage or losses or request that additional information be added to the initial report.
  5. Secure vital records and ledgers. Ensure that your accounting department opens a separate general ledger for hurricane-related expenses.
  6. Collect photos or videos as proof of damage. Ensure these are taken before any mitigations are implemented so that they accurately capture the aftermath and losses.
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  7. To the extent possible, take steps to mitigate any further damage once the storm has passed.
  8. If you have not already, retain a forensic accountant to begin preparing your business income and extra expense loss calculations.
  9. Prepare a proof of loss. A proof of loss provides details identifying the property destroyed or damaged, and documents the amount of loss incurred. Generally, any information substantiating the claim can become part of your proof of claim, including photos, videos, receipts and records. Check with your insurer for the specific information required as some companies may ask for a detailed list of documents or require you to fill out a specific proof of loss form.
  10. Submit proof of loss, photos, and reports to your insurer. Be sure to check any time limitations on the submission of a proof of loss and request an extension, if needed.
  11. Assist with the insurance company’s investigation. Property policies typically allow the insurer to conduct a reasonable investigation of the claim and require the insured’s cooperation. This may be in a provision titled “Duties in the Event of Loss” that allows the insurer to interview the policyholder claimants in a process called an “examination under oath.” The policy may also require the insured to exhibit the property, take reasonable steps to protect it, and generally cooperate with the insurer’s investigation. The insurer’s requests for information must typically be considered reasonable, however. A policyholder’s failure to reasonably cooperate could be used by the insurer as a defense to coverage.

3 Things Every Organization Should Do to Protect Against Cybercriminals

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Cybersecurity should be a top priority for organizations today, especially as employees continue to work remotely without business-grade protections. In the age of COVID-19, businesses are more vulnerable than ever. Whether it is phishing scams or malware, hackers are constantly finding new ways to attack businesses. In fact, in March 2020 alone, scams increased by 400%, and have continued to increase since then.

It is vital that employers protect their organizations and employees from cyberattacks, especially now. As new scams develop, businesses must create new ways to stave off hackers. Many steps can be taken to implement—and enforce—security measures as part of daily procedures for employees. By focusing on just three strategies, organizations can help better protect themselves from phishing scams and other cyberattacks.

1. Create a Comprehensive Plan

As organizations transitioned to remote work, employers had to make foundational shifts to adapt. The same is true for security threats. Cybersecurity measures need to become part of everyday routines and tasks. This means creating a plan to protect all assets and boost security in business processes.

Each organization’s security strategy also needs to align with its specific business risks. Performing risk assessments will allow employers to determine where they need to invest in cybersecurity. It is important to identify key digital assets within networks and personal devices so that employers can determine how to best protect them.

Once an organization’s risks are assessed, it can create a plan to suit these needs. For example, a cybersecurity strategy may include secure remote access or virtual private networks (VPNs), especially for virtual workers, to protect devices from threats posed by public internet connections. Other strategies include implementing multi-factor authentication, assigning access permissions to employees and maintaining regular backups.

2. Prioritize Investments in Cybersecurity

Protecting an organization requires the proper tools. A trustworthy security framework is a vital aspect of managing risks. For many remote or hybrid workplaces, areas like cloud and or software as a service (SaaS) security are top of mind. To manage and protect these environments, organizations should shift to software-defined networking (SDN) with secure access and/or secure service edge capabilities.  

Firewalls are also an important aspect of security, as they place a barrier between trusted internal networks and the outside world. Maintaining end-to-end security has become even more difficult in the age of remote work.

Investing in threat-monitoring and endpoint protection tools can also help. While there is no silver bullet to combat the myriad threats, layering cybersecurity methods helps create “defense in depth,” better positioning the organization to face whatever specific cyberrisks may be exploited next.

3. Take the Time to Train Employees

Strategy and security are futile without proper training. Organizations must commit to continuously training employees so that they are not only aware of what cyberattacks to watch for, but what to do if they notice something. This means ensuring that employees are comfortable reporting scams. By starting training during onboarding and conducting it regularly as scams evolve or emerge, workers can shift from liabilities to assets.

Cybersecurity training ranges from phishing testing to password and device management. Employers must teach workers to update their systems, be cautious with external devices like flash drives, and practice physical device security.

Reaction is just as important as prevention. Organizations should have a plan for employees if they fall victim to a scam or notice something unusual so IT or information security professionals can solve the issue as quickly as possible and mitigate the damage.

Ignoring cybersecurity is a huge risk, as cyberattacks can have serious consequences for businesses and their customers, suppliers and partners alike. It is critical to develop a strong cybersecurity strategy and invest in resources and training. Security is continuing to increase in importance as remote work remains and threats rise. By understanding the issues, challenges and potential threats of a cyberattack, organizations can determine what steps and precautions can be taken to decrease the likelihood of a cyberattack in the future.