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Recovering from Hurricane Matthew

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Many organizations in the southeastern United States recovering from Hurricane Matthew are still dealing with downed power lines, swollen rivers and blocked roads. As soon as they are able to, business owners should start assessing damage to their property and begin their insurance recovery process. They will need to assess not only physical damage to their property but also any income losses that may have occurred as a result of flooded and blocked roads and bridges, interrupted shipping and air transport, evacuations, and closures by civil authority.

They need to gather the information they’ll need for their insurer, and also be familiar with their policy and policy language. “In the runup to a storm, we always hear insurance executives on the news assuring the public that they will take care of things—that policyholders can rest assured,” Marshall Gilinsky, a shareholder in the insurance recovery group at Anderson Kill P.C., said in a statement. “But it’s vital for businesses not to assume everything’s going to be taken care of automatically. Storm-related claims can run into a snarl of unclear policy provisions, sublimits and exclusions, and occasionally obstreperous insurance company adjusters. A false sense of security leads easily to lost insurance proceeds.”

Businesses impacted by the storm that have flood insurance, he said, “should look for coverage not only for physical damage to their premises due to any flooding, but also business interruption and contingent business interruption coverage.” For best results, they should be sure they are up-to-date on how their insurer defines and invokes sublimits for “flood,” “storm surge” and “named storms” and how their insurer deals with claims that include damages from both wind and flood, Gilinsky said.

According to Galinsky, the following coverages (and coverage limits) will apply in a storm’s aftermath:

Business interruption or BI covers businesses for losses stemming from unavoidable interruptions in their daily operations.  BI coverage may be triggered by circumstances including a forced shut-down, a downturn in business due to damage to premises, or a substantial impairment in access to a business’s plant or premises.

Businesses that are not themselves forced to close may be able to tap contingent business interruption coverage, triggered when policyholders do not themselves suffer physical damage but still lose revenue after a property loss sidelines a major supplier or customer base.  Contingent BI is a standard provision in many property insurance policies, though many small businesses are not aware of it.

Also in play will be coverage for evacuation by order of civil authority, triggered when authorities close off access to a damaged area – and ingress egress coverage, which insures lost profits due to difficulties in accessing the insured premises due to the storm. Again, damage to the insured’s own property is not required to trigger coverage — though typically, the losses must result from property damage of a type covered by the insurance policy.

“Too many businesses do not think about insurance unless their premises are damaged—or if they do, they fail to calculate the full range of loss,” Gilinsky said. “Small businesses in particular may not even be aware of their civil authority, ingress egress and business interruption coverage, let alone their contingent business interruption coverage.”

He also noted that many commercial property insurance policies provide different sublimits for losses caused by “flood,” “storm surge” and “named storms.” How the policy defines these key terms can be critical in determining the amount recoverable for the policyholder’s loss.

The Property Casualty Insurers Association of America offered the following tips to help businesses through their recovery process.

Business Recovery Information

  • In the aftermath of natural disasters, businesses should take immediate steps to minimize damage, speed up the claims process and accelerate business recovery. Assess the damage and report all damage to your insurance company agent as soon as possible.
  • Take pictures of your building and contents to document the damage.
  • Check for safety hazards, such as downed trees, branches, downed power wires and leaking gas.
  • Keep all receipts for anything purchased for that purpose so they can be submitted to your insurance company.
  • Be prepared to list the “replacement cost” of each item and its actual cash value.
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    Replacement cost is what it would cost today to replace an item with another one just like it. Actual cash value is what the item is really worth after deducting for depreciation and wear.

  • Restore your utilities, phone service, gas lines and other important links as soon as possible.
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  • Business interruption coverage is complex and will vary by insurers. It is important to read your policy and understand what is and is not covered.
  • As you seek contractors to make repairs, deal only with reliable, licensed professionals.
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    Get written bids from the contractor, but don’t sign any contracts or give a deposit until you have seen your insurance adjuster.

  • If you or your employees get involved in clean-up efforts, use safety items like proper eyewear, gloves, hardhats, dust masks and respirators.
  • Keep detailed records of business activity and extra expenses during the interruption period, and prepare records to show the income from the business both before and after the loss.

10 Tips for Securing Responsive Cyber Coverage

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SAN DIEGO—With hacking incidents becoming all too common, risk managers are under increasing pressure to help protect their companies from the inevitable breach. Insurance is an option but policy forms are still developing. In a session at RIMS 2016, Joshua Gold, a shareholder with Anderson Kill and Debbie Gramer, director of global risk management at Arrow Electronics, Inc., offered the following 10 tips to risk mangers looking to secure the best possible coverage for their organizations.

  1. Be careful with insurance applications.
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    Use precise language to convey your exposures to underwriters. Never answer “yes” or “no” to a question that doesn’t really have a yes or no answer.

  2. Retro dates. Hackers can be in systems for days, months or even years so it is important push retro dates back as far as possible.
  3. Look for clear policy coverage. Forms and terms change over time as the risks shift. Having clear language can remove ambiguity.
  4. Symmetry with other insurance (e.g., CGL, property). Review existing policies to determine where there may or not be coverage gaps.
  5. Get endorsements of special coverage needs. If you have exposures from cloud providers and third-party vendors, for example, you will need to specifically address these. Exclusions matter.
  6. If you accept payment cards, be aware of PCI issues and card brand fines and penalties.
  7. Address sub-limit concerns. Losses can be expensive. Make sure sub-limits are adequate.
  8. Beware of breach of contract exclusions.
  9. Beware of conditions on “reasonable” cybersecurity measures. “Reasonable” is a  subjective term. Specifically define security measures to remove any grey areas that could lead to a coverage dispute.
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  10. Business interruption and reputational damage insurance may be vague but they are becoming more relevant. Business disruption is quickly becoming the most important operational consequence of a hacking incident.
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    Make sure you are protected.

10 Insurance Tips for Risk Managers

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NEW ORLEANS—Most companies will at one time or another face coverage issues and lawsuits. In order to identify and avoid insurance-related issues and disputes before they arise, risk managers should take advantage of proven strategies for resolving difficult claims, advised Darin McMullen, attorney with Anderson Kill, P.C. at the RIMS 2015 Annual Conference & Exhibition here.

1. The purpose of insurance is to insure.

Don’t underestimate potential future problems and think of loss prevention and risk transfer rather than loss financing, he noted. Companies need to assess the types of risks they will face and make sure their program is tailored to meet these needs. Also important, he said, is making sure policies are designed to cover the losses the company will face on a day to day basis. For example, certain types of risks are seen in manufacturing and other risks are particular to an IT vendor. Risk managers need to examine any pitfalls or shortages that may exist in their current policies and seek legal opinions well in advance of renewal. They need to look at how exclusions might be interpreted as well, McMullen said.

Joshua Gold, also an attorney with Anderson Kill, added that risk managers’ jobs are more difficult than ever, with fragmentation in insurance programs existing, since many polices are purchased for a program. These may include directors and officers, product liability and cyber insurance. “There are products out there that try to assimilate them and make sure gaps in coverage are treated,” Gold said, adding that while the fine print in policies can be overwhelming, it can be key for proper coverage, especially when dealing with multiple lines, excess layers and towers of insurance.

2. Don’t limit insurance expertise to the risk management department.

All too often, “there are still going to be thorny claims and there still are going to be disputed claims, which are unavoidable,” McMullen said. He said that building expertise elsewhere within the company is critical to taking advantage of any and all available coverage. “We get the need for everybody to work together, but now, more than ever, this is important,” he said. Coverage should not just be delegated to risk or legal and collaboration is needed. For example, IT departments need to be included when planning for cyber coverage.

3. Lawyers and risk managers can be natural allies.

While there may be friction between departments in a company, legal generally recognizes the beneficial role risk managers play, McMullen said. He added that risk managers need to put any insurance-related communications in writing and assist in the analysis of policies and claims.

4. Insurance is an essential component of corporate resources and asset conservation plans.

Risk managers should purchase coverage with the intent of safeguarding the company’s own property and employees. They also need to recognize which mechanisms actually transfer risk and which do not.

5. Think insurance after a loss occurs.

This means looking to insurance coverage following all lawsuits, claim letters, product-related issues and financial losses. Risk professionals also need to analyze other sources of insurance that could possibly cover a claim.

6. Give notice of a claim or loss as soon as possible.

When faced with a claim or loss, McMullen advised risk managers not to hesitate to notify their broker, insurers and everyone in their tower of insurance as soon as possible.

7. When you make a claim, don’t accept “no” for an answer.

There is no downside to challenging an insurer’s denial of coverage. “You owe it to your company, you owe it to your organization to explore this and push back,” McMullen said, adding that determination and persistence often mean the difference between coverage and no coverage.

8. Find out where your company’s policies are.

Locate, collect and catalogue past insurance policies. Also acquire and keep policies of all entities related to your company.

9. Don’t panic if your insurer becomes insolvent.

If this is the case, McMullen advised risk professionals to file a proof of claim as a creditor and file a claim against the state guaranty fund in one or more possible jurisdictions. He recommended that they request the next layer of insurance companies to “drop down,” and also to consider litigation options.

10. Make sure your insurance team is conflict-free.

This means the team should be untainted–risk managers need to know where loyalty lies and if an attorney is representing both sides, McMullen said. “You want a conflict-free insurance team to take on the insurance company and to fight for the coverage that you are paying for,” he concluded.