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Lava Threatens Hawaii’s Land, Economy and Ecology

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Activity from the Kilauea volcano on the island of Hawaii, in Lava Zones 1 and 2—deemed the most dangerous of the island’s nine zones—continues into its third week. As previously reported, aftershocks, lava flow and lingering hazardous fumes in Lanipuna spilled into nearby areas. About 1,800 people living in surrounding neighborhoods were ordered to be evacuated earlier this month by Hawaii County. The one serious injury reported was of a man sitting on this front porch, who sustained a leg injury caused by lava splatter.

Experts warn that more powerful explosions may follow the 30,000-foot ash cloud that engulfed the sky on May 17. Since then, breathing masks have been distributed to local residents and workers.

On May 18, the Hawaii Tourism Authority (HTA) issued a press release aiming to quell fears about safety on other parts of the island. The statement explained that the only affected region is “a remote area along the Lower East Rift Zone on the island, Kilauea Summit and surrounding areas.” The steam and ash outbursts from Halema’uma’u crater are occurring in Hawaii Volcanoes National Park, which is about 40 miles from the Lower East Rift Zone. This is a natural occurrence as rocks fall into the crater and magma interacts with groundwater.

An “aviation red alert” was issued last week due to the potential that aircraft routes could be impacted by the ash, but flights and normal operations have apparently not been impacted and the HTA maintained that there is “no reason for visitors planning a trip to the Hawaiian Islands to change or alter their leisure or business travel plans.”

Reports indicate, however, that as of last week, cancellations from May through July added up to at least $5 million and bookings for hotels and other outdoors activities have declined by 50%.

And while the tourism and transportation industries are integral to the state’s economy, the risk to its ecology is becoming more evident and immediate. In addition to the falling ashes, air near the site contains sulfur dioxide, which some breathing masks cannot protect against.

Several fissures combined created two lava flows that have entered the ocean off Highway 137 near MacKenzie State Park, according to the Island of Hawaii’s Civil Defense. Highway 137 is a critical stretch along the coast that is the site of several problems for residents. A two-story lava wall emerged on parts of the highway, essentially cutting off a portion of the escape and evacuation route. Authorities have since opened an alternate escape route via Highway 11, which was blocked by almost a mile of lava in 2014.

The lava oozing into the Pacific Ocean has short- and long-term effects on the local ecology. While it is certain to harm or repel marine life, the chemical reaction when mixed with water also affects the air.

A Hawaii county spokesman said recently:

“The lava has entered the ocean. Be aware of the laze (lava haze) hazard and stay away from any ocean plume. Laze is formed when hot lava hits the ocean sending hydrochloric acid and steam with fine glass particles into the air.

As one can imagine, since the laze is in the air, lungs, eyes and skin are particularly susceptible to irritation and it can change direction quickly since it travels with the wind.”

Information on ash hazards and how to prepare for ashfall can be found here.

Although the K volcano has been active for decades, this most recent surge in activity could be attributed to the 6.9-magnitude earthquake on May 4, the strongest quake to hit Hawaii in more than 40 years. The earthquake was one of hundreds to be felt recently on the Big Island, although none of them caused any notable threat to life or property.

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.”

Uptick Charted in Telemedicine Cyberrisk

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Advances in telemedicine have benefited patients, but, as with any emerging technology, they also create exposure to cybersecurity risk.

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In addition to patients’ data, monitoring and diagnostic devices that can provide treatment from a distance can be compromised due to a variety of causes—from hackers to employee error.

Because of a drastic increase in internal threats, cyber events have become a prevalent threat—with alarming consequences for employers and patients. While malicious actors are perceived as a major threat, 43% of healthcare cyber events are the result of internal threats, according to The Identity Theft Resource Center’s 2017 Annual Data Breach Year-End Review.

The study found that hacking continues to rank highest in the type of attack, at 59.

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4 % of breaches—an increase of 3.2% over 2016 figures. Overall, the Review indicates a drastic upturn, with a 44.7% increase over the record high figures reported for 2016.

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Here’s more information on cyber breaches and other potentially damaging threats:

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.