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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.

Should You Revisit Insured Property Value Estimates?

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One of the first steps in obtaining commercial property insurance is to determine the value of the property being insured. The reported property value will drive premium amounts and, importantly, represents the property loss exposure.

Some commonly used property valuation methods include: obtaining an appraisal from a third-party firm; utilizing fixed-asset records adjusted for cost inflation; or using a simple benchmarking factor, such as dollars per square foot. In some cases, utilizing a simplified valuation approach can provide a reasonable value estimate with minimal effort. On the other hand, performing an appraisal (which insurers typically consider the “gold standard”) can provide much-needed accuracy and thoroughness, but will require a greater commitment of time and resources. 

At times, elevating the accuracy of a property value estimate can provide significant advantages during the insurance placement process. The key for risk managers, brokers and insurers is to recognize situations in which an accurate and comprehensive property valuation is critical. Consider these eight factors in the context of the insured property to see if a deep dive into the value estimate is necessary:  

  1. Size of exposure and riskiness of operation
    When property exposures are immense or operations are inherently risky, a thorough estimation process should be conducted every three to five years. Refineries and chemical processing plants with billion-dollar exposures and high-risk operations are a prime example—the stakes are too high to rely on cursory valuation methods over the long term.
  2. Changes in costs  
    Over time, some property costs will change more than others. These fluctuations are primarily driven by changes in technology, capability, and material and labor costs. As of this writing, there have been significant increases in commodity prices such as steel and lumber, which are driving up the costs of new property and equipment. When property is subject to a rapidly changing cost environment, this complexity needs to be carefully considered within the estimation method.  
  3. Complexity and scope of property 
    Global operations and complex properties often require a thorough analysis to be performed periodically. There is simply too much detail and nuance to use an abbreviated estimating approach for an extended period without introducing the possibility of significant error. Many global firms establish a multi-year process in which a comprehensive analysis is performed on a portion of properties each year.  
  4. Type of capital expenditures 
    A company’s capital expenditures typically represent either new asset additions or improvements to existing assets. Accounting for new assets is a straightforward process of addition. However, capital expenditures that represent improvements in condition may not translate directly into increasing replacement value for insurance purposes. This is a frequent occurrence within heavy industrial and processing operations and can result in an overestimation of value if not properly analyzed.  
  5. Major changes to business or operations 
    Major changes within a business, such as reconfiguring a manufacturing facility, adding production capacity, acquiring new businesses, consolidating operations, or relocating an operation, are likely to result in changes to the property and assets. Making a diligent effort to assess these circumstances in detail will help establish an accurate property value that can be used going forward.  
  6. Insurance market conditions 
    As of this writing, the property insurance market has experienced substantial price increases for three consecutive years. When insurance prices are high, developing an accurate estimate of property value will provide assurance that the coverage is neither more nor less than necessary. Developing reliable and accurate value estimates can also be a key differentiator for insureds when engaging with insurers in a difficult market.  
  7. Recent losses reveal inaccurate value estimates 
    Insurers will seriously question the validity of reported property values if a recent property loss reveals large inaccuracies in reported value estimates. In this case, performing a comprehensive valuation of the insured property is the best course of action.  
  8. Adjusting value estimates over time 
    Many companies adjust value estimates from the prior year to account for cost inflation. The accuracy of this approach will diminish over time. For typical commercial properties, conducting a comprehensive valuation every five to eight years can help recalibrate value estimates.  

Correctly valuing insurable property is one of the most critical inputs for managing property risk. While a shorthand valuation estimate may suffice in some circumstances, it is not a perfect solution to every situation. Sometimes there is no substitute for a thorough and diligent value estimate. Striking the right balance between valuation accuracy and effort requires knowing when an estimate is good enough and when it is not.  

Hurricane Preparation and Recovery Tips for Businesses

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hurricane dorian disaster preparation

The first Atlantic hurricane of the season is rapidly approaching the mainland United States, with experts currently expecting Hurricane Dorian to make landfall in Florida on Sunday. For businesses both in the storm’s path and beyond, it is important to take the opportunity to consider how to protect property from hurricane damage before and after storms. The Congressional Budget Office estimates that, on average, hurricane damage costs $54 billion annually, and even at this late date, there is always more businesses can do to try to mitigate such losses and damage to their property and operations.

One of the simplest steps is having an accurate replacement cost and business income valuation. If valuations were conducted previously, consider how long it has been and any significant changes, such as assets or location. It is also important to document the property before a storm arrives, including taking photos and videos, or even using 3D-mapping technology to record a detailed account of an entire space, building or structure. Most importantly, confirm with the insurer that the policy is current and that the terms, conditions, and limits are all well understood.

Creating and practicing a detailed disaster plan is another important step. Business owners can use risk modeling programs, which run a range of potential scenarios digitally to flag issues and create a more holistic plan. If digital modeling is unavailable, walking through or rehearsing plans can help identify potential issues. For example, built-in hurricane shutters are great, but if they are not tested ahead of time and then malfunction in the hours before a storm, it may be too late to find an adequate solution. When tailoring the disaster response plan, also consider the available coverage to limit out-of-pocket expenses after a storm. Coordinating with your insurance professional is the best way to minimize uninsured expenses.

One critical factor for any business disaster plan is how to protect data, including business data as well as plans and building layouts. House these valuable documents in a secure location in case of physical damage to the main data storage unit or computer drives. Insurance companies will likely request very specific information to process any claim, so speak with an insurance company adjuster in advance to determine what types of documents they need for filing a claim, then store those in an easily accessible online portal.

Create a business continuity plan that addresses how to expedite recovery or avoid interruption, potentially including employing an off-site workforce, creating an alternative workspace, and locating backup suppliers.

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It should also always include a communication plan so that key players remain connected. Business owners should engage with critical vendors and emergency responders in advance to assist with loss mitigation, temporary repairs, and restoration. Following a wide-spread catastrophe, these vendors are in high demand and having a preexisting relationship will help.

Once the storm passes, the first step must be communication: contact everyone to address safety concerns and identify their needs. Phone lines and internet service are often unreliable following a storm, and business owners should be prepared to use multiple forms of communication, from texts to emails and applications that use Wi-Fi.

After reestablishing contact, quickly document the damage (ideally in both photos and videos) since demonstrating the extent and cause of loss becomes increasingly difficult over time. Policyholders should notify their broker and insurance company of the loss immediately, and once damage is documented, policyholders must reasonably and with due diligence preserve and protect property and commence restoration while mitigating future risk. For example, if a structure suffers roof damage, but no action is taken to “reasonably and quickly” provide temporary cover, rain damage following the storm may not be covered as part of the storm’s damage.

Finally, it is critical to log all logistical and monetary details.

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After a hurricane, there may be challenges accessing damaged areas, so retain all notices, civil orders or police mandates concerning any access limitations to later provide the insurance company. An insurance company cannot expect a policyholder to put a tarp on a roof if access was prohibited. Likewise, policyholders should track all expenditures. After a disaster, the price of restoration services can increase dramatically, so acquire and keep multiple estimates of any cleanup, construction, or emergency service needed. Having these estimates will allow policyholders to assert the cost was both reasonable and necessary and receive reimbursement.

Hurricane season is already here but it is not too late to take preparative steps to help protect your business from the often unpredictable effects of storms. The only things business owners can control are the steps to help prevent and recover from damages.

The Risky ‘Business of Art’ Explored at Observer Event

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From left: Massimo Sterpi, Elena Zavelev, Anne Bracegirdle, Devin Finzer, Curt Bilby / Photo: Keith Sherman & Associates

NEW YORK—On May 21, the Observer’s inaugural “Business of Art Observed” event brought experts in art, insurance, risk management, tech and finance to the Roosevelt Hotel to discuss established and emerging risks facing the $50 billion art industry.

The “Insurance and Risk Management” session wasted no time exploring creative risk and claims management approaches to the various forms of potential damage to artwork. From transit to security to geopolitical risk, panelists agreed fine art coverage is not a paint-by-numbers process, and said the “framing of a claim” can facilitate a payment.

“Insurance companies get a bad reputation,” said Mary Pontillo, senior vice president and national fine art practice leader at DeWitt Stern. “But the higher-end, really good-quality insurance companies are looking for ways to pay claims. I think that’s where there are a lot of misconceptions.”

For example, she mentioned advising a client whose work was being kept on a yacht. While certain maritime and environmental risks such as humidity were not covered by the policy, she was able to demonstrate that ocean spray had been the source of the damage and successfully get the claim covered.

The session discussed modernizing risk management in the art market and how the industry should apply forensic due diligence to transactions and ensure they view all business activities through a lens of strategic risk. And with transparency cited as a continuous challenge, Dennis Wade, a senior partner at Wade Clark Mulcahy, LLP, who has handled international fine art matters, pointed out the importance of reputation risk when drafting a policy.

“Many policies also contain an exclusion for the dishonesty of the person to whom you deliver or entrust the goods,” Wade said. “So if you consign a work to a corrupt gallerist, there may be an exclusion in your policy and you may not be covered at all.”

The emergence of blockchain technology dominated discussion at another session, “Art Market 2.0: Using Art & Technology to Drive the Industry Forward.” According to panelists, authentication and secure transactions have risen to the top of their risk registers. New Art Academy Founder Elena Zavelev said blockchain’s ability to put individual faces on digital artwork has mostly solved the prior risk of unauthorized duplications, forgeries, and fraud. Zavelev and her co-panelists said blockchain may facilitate a long-term change in the way art is created, sold, curated and insured by improving the ability to track a work’s provenance.

Christie’s AVP Anne Bracegirdle said the masterstroke for streamlining the authentication process is to create a digital, industry-wide registry. Tokenizing original works, she said, would simplify the experience of buying, selling and trading. “If each piece had its own digital identity that would stay the same, no matter where it went, it would instantly provide secure provenance and prices,” Bracegirdle said. “There are companies like Consensus and Microsoft working to create distributed identity networks. The security within that could be applied to scale blockchain—regardless of which blockchain you’re interacting with. Digital identities would provide clients with access to all their consignments and their purchases in one consolidated space, which currently doesn’t exist.”

The evolution of art was also a hot topic during this session since what’s considered a “finished piece” is no longer just a physical canvas. Digital, virtual and even crypto-art may be in their relative infancy but these are gaining global popularity and could significantly influence the industry, said Devin Finzer, co-founder and CEO of OpenSea, a peer-to-peer marketplace for crypto collectibles, gaming items, and digital art.   

“[Owning digital products] has always been confined to a specific ecosystem, like event tickets to a ticketing site,” Finzer said. “Blockchain offers a new type of ownership for these digital assets and it’s exciting for digital art because you can own it in a variety of [digital forms]. Right now, we see the enthusiasm is from tech enthusiasts, but I think over time these ideas around digital ownership will cross over to a mainstream crowd who appreciate the art more than the technology.”