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Brexit Creates Turmoil

Brexit
Britain’s unexpected vote to leave the European Union has left many unanswered questions, some of which may not be resolved for years as Britain and the EU iron out the details of the split. Meanwhile, in the wake of the announcement, oil prices dropped, global stock markets have taken a significant hit, the Euro and the British Pound plunged.

Fitch said today that overall, Britain’s decision is broadly “credit negative” for most U.K. sectors.

During a Eurasia Group conference call this morning, Europe associate Charles Lichfield asserted, “The U.K. has lost relevance to Washington.” In the past, he explained, the United States has worked closely with Britain on many European issues, but will now bolster relations with Germany, Spain and other countries, bypassing Britain.

According to the Wall Street Journal:

The move triggered a selloff across markets dragging down the British poundcommodities and shares in U.K.-listed banks, utilities and oil-and gas companies including BP PLC and Royal Dutch Shell PLC, whose shares fell 6.2% and 4.9%, respectively.

A spokesman for Shell said the company will work with the U.K. government and European institutions on navigating a British exit from the EU, known as Brexit. The Bank of England announced it was prepared to use its $371.85 billion war chest to stabilize the market.

The uncertainty in the marketplace after the referendum could hurt oil companies by exacerbating the already-challenging environment created by lower oil prices.

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In the aftermath of the vote, U.K. Prime Minister David Cameron announced plans to step down.

The referendum is expected to jolt the U.S. economy, likely driving up the value of the dollar.

Members of the insurance industry and their buyers are wondering what the impact on Lloyd’s and the London market will be. So far, Lloyd’s has maintained a cool façade.

“I am confident that Lloyd’s will stay at the center of the global specialist insurance and reinsurance sector, and I look forward to continuing our valuable relationship with our European partners,” Chairman John Nelson said in a statement on the vote. “For the next two years our business is unchanged.

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Lloyd’s has a well prepared contingency plan in place and Lloyd’s will be fully equipped to operate in the new environment.”

The Financial Times, however, expects the insurance sector to be “hit hard” by the vote and that the impact could have a negative impact on the London market.

According to the FT, “One of the big attractions to insurers of operating via Lloyd’s is that it has passporting rights into the EU. Many of the insurers who do business there at the moment say that after a Brexit they will simply shift some of their business to subsidiaries within the EU, bypassing the Lloyd’s market in the process.”

Brexit is also expected to have more impact on the life insurance market than property/casualty. “The impact on the non-life insurers was more muted, given that many of them have little cross-border business and hold very conservative investment portfolios.

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Shares in Direct Line, RSA and Admiral were all down in mid-single digits,” according to the FT.

The Hidden Risks in Your Construction Fleet

There are some very important risks in your construction fleet that you may be overlooking.

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Independent contractors can introduce risks and your employees using their personal vehicles could pose other hidden exposure to your business. These are two top issues to be aware of, and here are some suggestions for mitigating them.

Independent Contractors

If you hire independent contractors, you could be sued for their actions in relation to a vehicle accident that they cause while working for you.

To reduce this exposure, ensure that each of your independent contractors has a valid auto liability insurance policy. Make sure the policy is in force throughout the duration of their contract with you. Additionally, be sure that their insurance carrier is financially stable. You can verify the insurance carrier’s financial strength at www.ambest.com.

Also, obtain a valid certificate of insurance from each contractor at the outset of your engagement and verify that coverage exists with their insurance agency. You can do this by looking up the insurance agent listed on the certificate on a web search engine and call the number that you find online to verify coverage. This will help to ensure that the certificate is valid and avoid potential certificate fraud.

Acord form

Contractors sometimes obtain coverage to meet your contract requirements and then cancel the policy shortly thereafter.

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To prevent this and reduce the resulting risk, be sure to re-check coverage at certain intervals.

We recommend that they do an initial certificate check around day 45, as many cancellations for non-payment happen after the first 30 days of coverage. Then check again around days 90, 180 and once more before the contract anniversary.

Employee use of personal vehicles

Many construction companies allow their employees to use their personal vehicles in the course of their employment. For example, some office employees may run company errands in their own car, or your sales representatives might use their own personal vehicle.

driving recordWhile it’s not a great idea to allow your employees to use their personal vehicle for work, this practice is a business reality. You can reduce this loss exposure by ordering a copy of each potential driver’s motor vehicle record annually.
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This review should also include anyone who has access to a construction fleet vehicle that is owned or operated by your company.

Doing this can help you protect your company from the financial impact of being sued by employees using their own vehicles for work.

Be sure to have adequate hired and non-owned liability insurance coverage on your automobile liability policy as well.

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Your insurance agent can verify if you have these coverages in place.

Foo Fighters Sue Lloyd’s Over Terrorism Coverage

Foo Fighters
The Foo Fighters said they are suing Lloyd’s of London for failing to reimburse them for scheduled concerts that were called off after the November terrorist attacks in Paris.
Loss adjuster Robertson Taylor is also part of the suit, which was filed on June 13 in federal court in Los Angeles.

The group canceled scheduled shows in Turin, Italy; Paris and Lyon, France; and Barcelona, after the Islamic State attacks because of threats, according to the Associated Press. Immediately following the Paris attacks, the Foo Fighters said, their website was hacked and the ISIS flag was displayed with an automatic weapon and a threat to “be prepared.”

The AP reported:

The band says in the suit that it believes it will be paid for the Paris and Lyon cancellations but alleges that Robertson Taylor advised underwriters against paying for canceled shows in Italy and Spain despite ISIS releasing a video threatening additional attacks in Europe.

The band is also suing the insurers for not paying for three canceled shows related to group leader Dave Grohl’s injured leg after a fall from a stage in Sweden last June.

Performers cancel shows for a number of reasons, but whether they are covered depends on details in their cancellation insurance policy. Terrorism is listed as a cause of loss by K&K Insurance. Other triggers include:

  • Power failure
  • Damages to leased or rented venues
  • Damage to surrounding venues or infrastructure resulting in lack of access
  • Natural catastrophe such as earthquake and flood
  • Adverse weather conditions (coverage is broader than rain insurance and there are no rain gauge requirements)
  • Non appearance of a principal speaker or entertainer
  • Inability to erect facilities at a venue
  • Disease outbreak (certain exclusions may apply)
  • Labor dispute/strike risks
  • Failure of TV broadcast
  • Any other previously unforeseen cause not excluded under the wording.

For more information about recent cases involving event cancellation, check out our recent article in Risk Management Magazine.

Risk Landscape: Coverage Trends to Watch

Being aware of your company’s new and changing risks is critical for sound risk management. As the year progresses, we have identified growing risks facing
companies, and their directors and officers, that are likely to impact policyholders. These risks include cybersecurity, Telephone Consumer Protection Act (TCPA) lawsuits, drones, wage and hour lawsuits and food recalls. The risks and issues to watch out for are expanded below:

Cybersecurity

Cyberattacks against businesses doubled in 2015 and are expected to continue to increase as attackers become even more sophisticated. Watch out for:

Phishing scams and social engineering fraud. In social engineering scams, hackers utilize phishing, purporting to be legitimate employees or third parties try to trick businesses into wiring funds or allow access to their systems. Although many businesses have crime insurance that covers “computer systems fraud,” ambiguous provisions or liability limits may restrict coverage. SomCompliancee courts have held that fraud coverage applies only when intrusions are unauthorized, but not when an unwitting employee falls prey to an online scam.

Data breaches. Companies should also be conscious about their coverage for data breaches, which increasingly present significant exposures. Insurers often contest whether data breaches constitute “publication” of private information, and, if so, whether an insurer’s duty to defend applies. This is particularly important as the storage of consumer data is a lynchpin of many businesses’ operations and marketing.
Businesses need to ensure that their commercial insurance policies adequately cover their business risks and consider purchasing dedicated cyber policies.

Coverage for TCPA claims

Certain efforts to engage with consumers may come at a steep cost. Under the Telephone Consumer Protection Act (TCPA), businesses that send unsolicited faxes, voice calls or text messages to consumers may be held liable for at least $500 per violation.

General liability coverage of TCPA claims. In recent years, commercial general liability (CGL) insurers have increasingly added broad exclusions to their policies for TCPA claims. Moreover, courts are split on whether “right to privacy” coverage in CGL policies cover these claims. Some courts uphold coverage only for losses from incidents that divulge confidential information (secrecy-related claims), whereas others uphold coverage for unsolicited communications, even if they do not republish confidential information.
While such coverage may be restricted under CGL policies, policyholders may have coverage under their directors’ and officers’ (D&O) insurance.

LA Lakers test case for D&O coverage. In 2016, the Ninth Circuit will likely address this issue in an appeal by the Los Angeles Lakers. The franchise’s marketing campaign included sending unsolicited text messages to fans. When sued under the TCPA, the franchise sought coverage for its defense costs under its D&O policy. In April 2015, a California federal court rejected coverage, finding that the policy’s “invasion of privacy” exclusion precluded coverage.
As businesses seek to engage consumers directly through various media, they should consider whether their insurance protects against TCPA claims.

UAVs and Insurance in 2016

Unmanned aerial vehicles (UAVs), or drones, promise to revolutionize not just commerce but insurance as well. The United States Federal Aviation Administration (FAA) estimates that, by 2023, annual global spending on UAVs will total $11.5 billion, and by 2020, about 30,000 commercial and civil drones will dot the skies.

Drone property loss and liability. The rise of drones raises several risks. The most obvious of these risks are loss of property and third-party liability. Use of drones for package or cargo delivery raises the risk of damage to the UAV itself—or its payload, which is usually the bigger loss. As shown by recent news reports and the first lawsuit, Boggs v. Merideth (W.D. Ky.), operators face liability for costs of defense and settlements or judgments payable to third-party claimants when UAVs go astray. With drones’ ability to film and collect data, other risks include privacy-related claims and data breach and hacking.

New coverage provisions. In June 2015, the Insurance Services Office, Inc. (ISO), approved new coverage provisions addressing commercial use of drones. The new ISO provisions modify standard CGL and umbrella/excess liability policy forms and merit close consideration by policyholders.
Because these new provisions are untested, policyholders should review them carefully against their entire insurance program and consult with insurance advisors to ensure that new provisions or policies provide the protection needed. Companies using UAVs should consider the aviation insurance market and also assess the need for cyber insurance coverage for privacy and data-breach exposures.

Wage-and-Hour Lawsuits

Cases alleging violations of the Fair Labor Standards Act (FLSA) have shot up in recent years. In 2015, almost 9,000 FLSA cases were filed in federal court, up more than 10% from 2014, and 30% from 2011. State courts have also experienced high volumes of wage-and-hour cases. California and New York recently enacted laws that allow directors, officers, and in New York, “top 10 shareholders” to be held personally liable for wage-and-hour violations.
Traditionally, companies have looked to their employment practices liability (EPL) and D&O insurance to protect against the defense and liability costs in wage-and-hour lawsuits. However, EPL insurance policies today regularly exclude coverage for such claims. Unlike EPL policies, D&O policies do not routinely exclude such coverage, but are including such exclusions with increasing frequency. As a result, policyholders must review D&O policies carefully to ensure that they protect against the threats posed by such claims.
Brokers and insurers have been developing new insurance products that specifically address these increasing wage-and-hour exposures. Policyholders, particularly those with significant operations in California and New York, should consider these newly emerging wage-and-hour specialty policies to ensure that they are adequately protected.

Food Contamination and Recall Coverage

The number of food product recalls for alleged contamination, undisclosed ingredients and other mislabeling issues also has risen dramatically. Although CGL and business property insurance policies provide some protection against liability for food contamination and recalls, savvy food companies should also consider specialized recall and contamination coverage.
These specialized policies may cover the reasonable costs that a policyholder incurs, for example, to examine its products for contamination, announce and institute a product recall, safely destroy contaminated products, and reimburse distributors and retailers for down-stream recall costs. Such policies often include crisis management coverage to help the policyholder mitigate negative media reports.

Varying types of special coverage. Because recall and contamination policies are not standardized, individual insurers offer differing policy terms and levels of coverage. Companies contemplating the addition of such coverage, or pursuing coverage under an existing policy, should closely examine the policy to understand the scope and limitations of coverage.

Items to watch. When purchasing such coverage, food companies need to identify their primary risks and negotiate the broadest possible coverage. In addition, because such policies often include very strict notice requirements, policyholders should give notice as soon as a recall arises to avoid coverage denial on late notice grounds.

Christina Buschmann, Linda Powell and Adrian Torres, Perkins Coie Insurance Recovery attorneys, also contributed to this article.