Category Archives: Risk Management

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Truck Driver Shortage Impacting Shipping, Retail Prices

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Factors including electronic-logging of driver hours, a growing need for shipment of items by Amazon and a surge in retirement of baby-boomers have meant a shortage of freight truck drivers and rising shipping costs.

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The American Trucking Associations reported a shortfall of 51,000 truck drivers nationwide in 2017, up from 36,500 in 2016 and 20,000 in 2013. The ATA projects the driver gap will increase to nearly 100,000 by 2021.

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“We’ve probably never had a situation like we have today, where the demand is strong and capacity is constrained,” Bob Costello, chief economist of the American Trucking Associations (ATA), a trade group representing trucking companies told USA Today. The ATA also reported that transportation companies are taking steps to attract drivers, such as pay increases and signing bonuses.

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Ben Cubitt, senior vice president of Transplace, a freight management firm noted that 99% of trucks nationwide are in use, up from 92% in October 2015. “Every truck is spoken for every day,” he said, adding that trucking companies have increased rates 6% to 10% in contracts with shippers over the past year to offset higher wages and take advantage of the strong demand. Trucks account for almost two-thirds of all tonnage moved in the U.S., according to the American Trucking Associations.

A new federal mandate for electronic logging devices that took effect in December, limiting the number of hours drivers can work, has had a big impact. These devices now take into account all time spent on the road, even waiting for cargo to be taken off a truck, which can cause hours to add up quickly and push a driver past the legal limit of consecutive work hours.

“There is a lot of uncertainty within the trucking world right now about what the effects of the [electronic logging devices] mandate’s going to be in the long term,” Steve Viscelli, a sociology professor at the University of Pennsylvania told USA Today. He added that E-commerce also has had a “huge effect.”

Price increases passed on to consumers are low so far, but are expected to increase as the driver shortage continues.

Growing Cities Mean Growing Risks

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On a recent list of the fastest growing American cities, Nashville jumped from 20th to 7th in a year. There are more than 210 active construction projects in the downtown core alone. We are hardly alone. Denver, New York, Charlotte, Atlanta and more are experiencing similar growth. Cities are booming and growing, and the construction cycle is showing little sign of letting up soon.

This growth presents great opportunity for companies in the construction industry.

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While it is exciting to see many succeed and take part in skyline-changing projects, it cannot be overlooked that with growing opportunity comes growing challenges. Risk management and comprehensive protections are becoming a central component of doing business, as more activity, more competition and tougher deadlines mean that no matter how good a company is with its service, risk is increased.

A catastrophic accident or incident that isn’t properly prepared for can wipe out boom time profits for any one company. As an entity in construction and development, it is vital to be completely protected from a risk transfer standpoint.

To do that there are three things anyone in a boom time must recognize:

  1. Risk is contractually driven in the construction industry. There is no blanket standard on your risk or obligations when it comes to construction, and each contract spells out different demands.
  2. You are forced to put a lot of trust into subcontractors. No job can be completed without competent, capable subcontractor work. So, whether you are the general contractor or another subcontractor, you have to trust other entities to do their job to be certain you can do your best job.
  3. The best subcontractor teams are harder to come by. As I mentioned previously, there are 210 projects ongoing in Nashville’s urban core alone. That means subcontractors are in high demand and the team you want or typically use may not be available. That results in having to sometimes trust someone you’ve never worked with before.
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In short, risk is shifting from project to project.

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Much of the work of any project is out of the control of one company or team and the teams you work with are constantly shifting due to high demand.

That presents challenges. What’s the best singular way to address these challenges?

Don’t just leave your contract to your lawyers! Cover all the bases by allowing all involved in risk management and insurance to be engaged from the outset—starting with contract review and finalization. This is applicable to both general contract agreements as well as subcontract agreements.

Your lawyers are important when creating a legal document, but you also need to consider your insurance risk management partners as part of the contract origination team. They should have an opportunity to review your contract to make sure it is reasonable from a risk management perspective. This step opens the door for the contract to be shared with the underwriters early to get them familiar and comfortable with the parameters of the project and its risk. As a result, from day one there is an understanding of everything expected of the client, from how the contract agreement reads to transfer of risk.

For the subcontractors you use, diligence needs to happen when it comes to review of those Certificates of Insurance provided. Types of coverages, respective limits and additional protective wording should be stipulated on that Certificate of Insurance form and received as part of contract compliance and before subsequent works begins.

The good news for those in the construction industry is there is a high availability of insurance within the construction market. Insurers continue to strongly solicit construction business and are willing to provide the coverages needed—and at very competitive pricing.

Ultimately, while the right policies and the best packages are important, most of the work to ensure your protection is needed on the front end during the contract phase. Take the time to involve your risk management partners early in the contracting period and save yourself panic later.

This will not only ensure that you have the right protection in a time of increased activity and opportunity, but also mitigate the chance for gaps in coverages and ensure your insurance partner is ready to mobilize and advocate for you quickly and effectively in case there is claim.

Prescription Opioid Risks to the Workplace Explored at RIMS 2018

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SAN ANTONIO – When the White House declared opioid use a national Public Health Emergency under federal law in 2017, businesses began reviewing their policies and making efforts to curb their employees’ abuse of the drug in its prescribed form. This escalating risk to organizations is why the business impact of prescription opioid use was such a hot topic at RIMS 2018, where a session on April 17 focused on the practical and bottom-line costs of workforce use of prescription opioids. In a session the next day, attendees learned how liability policies are responding to government-led lawsuits against opioid manufacturers, and how to prepare for similar suits brought against other industries.

New Insights into the Impact of Opioid Prescribing to Injured Workers
Data displayed on Tuesday explored opioid-related correlations between worker, industry and employer. Presenters John Ruser, president and CEO of the Workers Compensation Research Institute (WCRI) and Michael Fenlon, senior director of corporate risk management for United Parcel Service (UPS) discussed opioid-related claims and suggested evidence-based information that can encourage a return to work without the prescriptions.

The effectiveness of prescription drug monitoring policies (PDMP) was explored, and Ruser explained that a reactive shift among prescribers has meant that states obligated to adhere to these policies have fewer prescriptions written.

“This shows that the more queries there are, the bigger the drop in opioid prescribing,” he said, using Kentucky as an example of a successful PDMP. He added that Kentucky’s HB1 law mandated the use of the PDMP and has set a standard among states since it was enacted in July 2012. Between 2011 and 2013, WCRI information indicated a 10% decline in prescriptions in the state, whereas prescription levels were flat in others that did not have comprehensive opioid reforms.

Fenlon said that when he learned in recent years that opioid overdoses—almost half of which arise from prescriptions—surpassed car accidents as the number one cause of accidental death, he realized the severity of the issue and its impact on the UPS workforce.

“Once someone gets to that third or fourth script, you can see how it leads to a vicious cycle,” he said. “We need to take ownership of this—in the workers comp space as well as the healthcare side.”

He noted that UPS’ overall pharmacy spend is about 7% of its total medical costs per year for lost-time (LT) patients, with opioids comprising about 22% of that amount. UPS employs more than 454,000 workers, and Fenlon said the company continually pays close attention to the LT patients who are the higher-risk group, with three or more scripts. He added that the collaboration of drug formularies, third-party administrators and UPS case supervisors has contributed to the 44% decrease of the higher-risk group between 2013 and 2017.

Both presenters conceded, however, that injured workers will likely get the medication they need, even if it is not in the form of opioids. “Those who are worried about pain management are noticing the trend in the decline of opioid prescriptions in some areas and ask: ‘What’s the alternative?’” Ruser said. “While there was a drop in that drug, there was an increase in the amount of NSAIDs [nonsteroidal anti-inflammatory drugs]. Clearly, that’s what these prescribers are shifting to, so it’s not that these injured workers are not receiving pain meds.”

Members may access this PowerPoint presentation by logging in at the RIMS 2018 session handout page.

Opioid Lawsuits: A Tsunami of Litigation and Associated Coverage Issues
The topic shifted from boardrooms to courtrooms the next day, as current and pending multidistrict litigations filed by various governments (local, city and state) were examined. Covington & Burling LLP Partner Anna Engh and Marsh Managing Director John Denton (pictured below) discussed insurance policies’ responses to lawsuits and provided insight as to how to prepare should similar suits be brought against other industries.
Manufacturers, distributors, retailers, prescription benefit managers, doctors and clinics are all seemingly in the crosshairs of local municipalities and governmental entities, Engh noted.

“The main focus against the manufacturers is of alleged misrepresentation of the addictive nature of opioids. With respect to the distributors, it is the failure to report and detect suspicious orders, or failing to have controls in place for their diversions,” Engh said. “You’ll see negligence pled in different ways, like common-law negligence, and also pled as violations of states’ controlled substance acts.” She added that public nuisance and RICO claims (Racketeer Influenced and Corrupt Organizations Act) also appear on the dockets.

With nearly 500 claims against pharmaceutical companies, distributors and pharmacies consolidated in Ohio alone, Denton said that the volume of work involved is daunting for insurance, risk and legal professionals.

“That’s thousands of pages of pleadings coming in every month. It’s a very difficult burden,” he said. “I think a lot of companies are tendering them to as many policies as possible. Hopefully, a lot of insurance carriers will be understanding of this. And a lot of this will be sorted out later, either through discussions with the carriers or litigation.”

Denton added that because there is no federal judicial precedent on insurance suits, the progress on such matters will continue to be slow.

“Insurance coverage issues are typically an issue of state law. And with lawsuits in nearly every state, it would be nice to have a [United States] Supreme Court decision on some of these coverage issues, and that would bind everybody,” he said. “But the reality is that’s not going to happen. There will be decisions in multiple states so it may take some time before these issues get sorted out.”

Business and Employee Safety During Crisis Explored at RIMS 2018

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SAN ANTONIO – Emergency preparedness and action plans amid violent crises were explored during educational sessions at RIMS 2018 here. On Monday and Tuesday, experts discussed ways businesses can prepare for active shooter events and kidnapping crises. Experts agreed that in such events, lives, operations, reputation and finances are all at stake.

Some highlights from the sessions:

Kidnapped! A Crisis Simulation Exercise
Bill Laurence, head of crisis management at S-RM offered a kidnap simulation for a well-attended session on Monday. Laurence provided a scenario, asking the audience to assume a collective role as decision-makers of a fictitious, billion-dollar coffee company that has an executive abducted in Mexico. The group’s assignment was to create a crisis management team and decide who the communicator would be, how they would respond to threats and what information to relay to their insurance provider, among other critical actions.

“The first 24 hours are always the most critical during a kidnapping or ransom scenario,” Laurence said.

The simulation included real-life audio and video examples of terrifying ransom-demanding calls. The team learned that the kidnapper has typically planned the abduction in advance and always has control of the situation – beginning with communication. “For that reason alone, you cannot speed up the process,” Laurence said.

And although things may seem dire, he explained ways to glean information – and feel somewhat positive – even after a brief phone call. “We all react differently to pressure,” he said. “But avoid speculation and always prepare for the next call.”

Read more about kidnapping in a Q&A with the session’s co-host, Denise Balan, senior vice president and head of U.S. kidnap & ransom at XL Catlin, on page 9 in Tuesday’s Show Daily.

Active Threat and Workplace Violence on Campus: Preparedness, Response and Recovery
Craig McAllister, Cornell University’s director of risk management and insurance, opened a session on Tuesday with a discussion of duty of care and the obligation to the campus or work environment.

He pointed out that, in early January, the National Fire Protection Association (NFPA) processed its NFPA 3000 Standard as a provisional one to streamline the program elements necessary for organizing, managing, and sustaining an active shooter and/or hostile event response program. The standard gained even more input following the Marjory Stoneman Douglas High School in Parkland, Florida, on Feb. 14 in an effort to reduce or eliminate the risks, effect, and impact on an organization or community affected by these events

Paul Mills, global kidnap prevention manager at AIG, followed with a segment addressing best practices for violent incident preparation and response. He discussed response and resilience training for employees who need enhanced preparedness with the rise of violence against soft targets.

He noted that advances in technology often are putting people in harm’s way by default. “People are distracted to the point where they are unaware of the threats they face. It’s also delaying and inhibiting their response times,” he said. “Without even realizing it, they often portray victim-like behavior.”

Kendell Moore, senior vice president at the Abernathy MacGregor Group, delved into the key crisis management sources of an organization’s response support, both internally and externally. She used a mass shooting that occurred inside a local business in the western United States (that is also part of a major American chain) as an example of an entity that needed to enact its crisis communication plan immediately after the attack.

Moore offered some crisis communication principles:

  • Media is a conduit, not an audience. “The media needs to catch up to the actions of the business.”
  • Speak directly to the impacted. “It is most important to communicate with victims, loved ones, the community and those who are directly affected.”
  • Take action, not credit. “No statement, no matter how eloquent, can substitute for doing the right thing.”
  • Communicate what matters when it matters. ““What is said first must stand the test of time. So announce nothing and predict nothing that isn’t solid and certain.”
  • Build relationships in the community. ““Work alongside local law enforcement, government officials and those who know the community best.”
  • Listen to people’s needs and requests. “Ask what people need, rather than telling them what you think they need.”