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FAA’s New Drone Rules Ready for Takeoff

Drone
The commercial use of drones, or unmanned aircraft systems (UAS), has been widely discussed in the insurance industry. There is much to speculate upon as the technology is still emerging, with any number of possible applications and concerning reports of injuries. While drones bring the promise of efficiency, there is also the uncertain risk profile that comes with this most exciting technology.

With new Federal Aviation Administration (FAA) rules ready to take off (pun intended) in August, there will be improved visibility into the procedures and practices used by drone operators. The FAA recently finalized the first operational rules for routine commercial use of drones and, while the total risk picture is still unknown, we can now evaluate the strength and appropriateness of safety controls employed by UAS operators.

Drones are being used in many industries, from construction to utilities to agriculture, and these industries will need to prioritize compliance and risk mitigation. Some of the new operational limitations from the FAA include:

  • At all times the drone must remain close enough to its remote pilot in command and the person manipulating the flight controls must be capable of seeing the aircraft with vision unaided by any device other than corrective lenses.
  • Drones may not operate over any person not directly participating in the operation, or under a covered structure, or inside a covered stationary vehicle.
  • Drones may only operate during daylight hours or 30 minutes before sunrise or 30 minutes after sunset with appropriate anti-collision lighting.
  • Drones cannot operate from a moving vehicle unless it is over a sparsely populated area.

These rules appear to provide sound guidelines, but most regulations are only as good as the ability for them to be enforced. For example, under the rules’ operational limitations section, it is stated that most of the new restrictions are waivable if the applicant demonstrates that his or her operation can be safely conducted under the terms of a certificate of waiver. How often will these waivers be allowed and how will the FAA conduct investigations? Insurers will be watching to see how the rules are implemented and enforced.

Clearly, we should take note of this important moment for drones, as implementation of federal safety standards for emerging risk drivers has spawned or grown new insurance business lines that are now viewed as essential coverages. For example, environmental regulation in the late 1970’s and 80’s created the need for environmental coverage.

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State and more recent federal cyber laws are the backbone of cyber policies as insureds must comply with standards to prepare for and respond to breaches. Most recently, the FDA’s Food Safety Modernization Act is driving insureds to take a fresh look at product recall insurance.

Risk managers should expect operating rules to drive new coverages that support the insured’s risk evaluation process.

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This will allow for a spectrum of outcomes from exclusionary wording for UAS operations to distinct coverage grants for safe and compliant operators. Loss control and consulting services from insurers could be helpful to guide the risk management surrounding drones. The federal rules also enable additional objective underwriting questions tied to compliance. Expect to see these questions incorporated into specific UAS underwriting application questions.

The risk manager can readily imagine the Coverage A risks that can arise from UAS operations. Those could include but are not limited to third party bodily injury resulting from aircraft failure, a wildfire resulting from a crash and potential catastrophic terrorism uses. Privacy risk under Coverage B is also a risk easy to imagine and well-documented even in the early stages of this new commercial risk driver.

Insurance brokers or consultants can also offer guidance on the various ISO endorsements in circulation seeking to clarify the commercial general liability aircraft exclusions to include unmanned aircraft. ISO endorsements provide options to include Coverage A and/or schedule-specific aircraft for coverage. I do not believe that ISO has plans to amend the currently available endorsement in response to the aforementioned FAA operating rules.

There is no question the use of drones is only going to expand in its application and, with that, operational safety will improve as exposures grow. The industry should expect increased regulations, including flight worthiness certification as well as possible insurance requirements. According to a Goldman Sachs analysis, total global spending on drones in the commercial market is estimated to be around 0 billion over the next five years.

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Of that, about $11.2 billion will be generated by the construction industry.

Risk managers should anticipate liability exposure for those that fail to comply with the new regulations. The uses are vast, and given the diversity of users the levels of knowledge and awareness of compliance obligations will vary. Education will be key to ensure users understand their responsibilities and the consequences for not meeting regulatory standards.

As the technology and uses continue to advance, catastrophic loss examples will likely arise in the future. I am hopeful that the new FAA regulation will be a useful tool to mitigate the unknown risks to both drone operators and third party premises owners that might be exposed to drone-related accidents.

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.

Five States Most Likely to See Employee Lawsuits

Businesses in California, Illinois, Alabama, Mississippi and the District of Columbia face a markedly higher risk of being sued by their employees compared to the national average, according to a study by Hiscox.

“Not only are employment lawsuits more likely in those states, but the likelihood of catastrophic verdicts is also significantly higher,” Mark Ogden, managing partner of Littler Mendelson, employment and labor law firm said in a statement. “Unlike their federal counterparts, where compensatory and punitive damages combined are capped at $300,000.00, most state employment statutes impose no damages ceilings.

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Consequently, employers in high-risk states must ensure that their workforces are adequately trained regarding workplace discrimination, harassment and retaliation and that policies forbidding such conduct are strictly enforced.”

The study found that a U.S.-based business with at least 10 employees has a 12.5% chance of having an employment liability charge filed against it. Businesses in several states, however, face a much higher level of exposure to litigation. California tops the list with establishments with at least 10 employees having a 42% higher chance above the national average of being sued by an employee. Other states and jurisdictions include the District of Columbia (32%), Illinois (26%), Alabama (25%), Mississippi (19%), Arizona (19%) and Georgia (18%). Lower-risk states for EPL charges include West Virginia, Massachusetts, Michigan, Kentucky and Washington.

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State laws can have a significant impact. For example, the employee-friendly nature of California law in the area of disability discrimination may contribute to the high charge frequency in the state.

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Discrimination cases filed at the state level in California are brought under the Fair Employment and Housing Act (FEHA).

FEHA applies to a broader range of businesses, covering any company with five employees, versus a 15-employee minimum for cases brought under federal law as outlined in Title VII of the Civil Rights Act, according to Hiscox.