Broker Liability

A $24 Million Yacht Burns: Its Owner Ignores Key Policy Terms and Conditions

An expensive loss and court battle hinge on the boundaries of a broker's obligations to insureds.
By: | June 1, 2018 • 4 min read

Photo: Kurt Roll via YouTube

Whether a broker is in constant contact with an insured or merely checking in before renewals, it can’t change the fact that the onus for understanding and meeting a policy’s terms and conditions rests first and foremost on the insured.

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That’s the painfully expensive lesson learned by millionaire Larry Jodsaas, the owner of the pleasure craft Polar Bear, a yacht that took five years and $24 million to build.

Smoke rose in San Diego Bay on the morning of June 19, 2014, above the Chula Vista shipyard where the Polar Bear was in drydock for repairs. A local ship captain sent up his drone to get a closer look. What he saw was any boat lover’s worst nightmare: The Polar Bear engulfed in flames.

The craft was a total loss.

Of Damages and Fires

The Polar Bear was en route to the shipyard for routine maintenance when it ran aground on the Zuniga Jetty at the entrance of the San Diego Bay.

The impact damaged the bottom of the hull, port and starboard sides of the keel and the aft port stabilizer shaft.

The yacht was covered under a Lloyd’s marine policy placed through Marsh, and the policy remained in effect while the vessel was undergoing routine maintenance in the shipyard.

When it arrived at the shipyard in May after hitting the Zuniga Jetty, the Polar Bear needed major repairs instead of the planned routine maintenance. Neither Jodsaas nor Roger Trafton, the ship’s captain, notified Marsh or Lloyd’s of the situation.

They reasoned the cost of repairs would be below the deductible.

Unfortunately, welding performed during repairs led to the demise of the Polar Bear.

Claims Denied

The broker on the marine policy, Katherine Johnson, provided Lloyd’s with a notice of loss the day after the fire. Lloyd’s, however, denied coverage.

The Polar Bear’s policy contained a repair clause stating that for major repairs or alterations involving hot work (welding), prior agreement must be obtained from the insurer. Failure to notify the insurer of the needed repairs voided the coverage in full.

Lloyd’s sought declaratory relief that it had justifiably denied coverage for the claim. Jodsaas, filing as Bear LLC (“Bear”), filed counterclaims against Lloyd’s and a third-party complaint against Marsh, asserting breach of oral contract, breach of fiduciary duty and negligence.

“As long as the insured, even with more advice from the broker, remains in the driver’s seat, [the special relationship] doctrine does not apply.” — Christopher St. Jeanos, attorney, Willkie Farr & Gallagher

In addition, Bear claimed a “special relationship” with Marsh, establishing a heightened duty to advise. Had Johnson dissuaded Bear from electing the Lloyd’s policy, it argued, it could have recovered the policy limit of $17.3 million.

A local ship captain spotted the plume of smoke and sent his drone in for a closer look at the fire consuming the Polar Bear.

The Court granted Lloyd’s summary judgment, holding that Bear had breached the terms of the repair clause. Marsh’s motion for summary judgment was granted in part and denied in part.

Claims for breach of contract, breach of general fiduciary duty and negligence were denied. But the claim for breach of a heightened duty to advise could proceed to trial. Contacted for this story, Marsh declined comment.

The Court’s Verdict

In the U.S. District Court in the Southern District of California, the court applied the “special relationship” doctrine narrowly. As other courts have in similar disputes, it examined the depth of the relationship between Bear and Marsh and the broker’s role in decision-making, among other elements.

Christopher St. Jeanos, attorney, Willkie Farr & Gallagher

It concluded that the services Marsh provided for Bear were the same as the services being provided for all of Marsh’s clients.

Also, the fact that the broker had not been notified of the jetty incident — and the fact that Johnson and Jodsaas had never met in person during their 10-year acquaintance — contradicted claims of a “deep relationship.”

“The court reconfirmed that [the ‘special relationship’ doctrine] is a narrow exception to the general rule that only applies in exceptional circumstances and found that the facts in this case did not trigger it,” said the lead attorney on the case, Christopher St. Jeanos of Willkie Farr & Gallagher.

A Broker’s Role

The question of who retains decision-making authority is a key factor in this case or any case where a “special relationship” with a broker is in question.

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“As long as the insured, even with more advice from the broker, remains in the driver’s seat,” said St. Jeanos, “this doctrine does not apply.”

The court further noted there was no evidence the loss would have been paid if Johnson had advised Bear to select an alternate carrier. Under a Chubb policy that had been under consideration, conditions applied that would have required the insured to notify it of the jetty strike and subsequent major repairs.

“The entire case turns on Jodsaas’ and Trafton’s failure to provide notice,” said the court, also noting Bear had received notice of the repair clause conditions more than a dozen times.

While the yacht claim was a loss, Bear did settle a claim with the shipyard for $9.2 million. A judgment was also granted against the company performing the welding. However, that company folded after the incident, and its owners are thought to have fled the country. &

Michelle Kerr is associate editor of Risk & Insurance. She can be reached at [email protected]

More from Risk & Insurance

More from Risk & Insurance

High Net Worth

High Net Worth Clients Live in CAT Zones. Here’s What Their Resiliency Plan Should Include

Having a resiliency plan and practicing it can make all the difference in a disaster.
By: | September 14, 2018 • 7 min read

Packed with state-of-the-art electronics, priceless collections and high-end furnishings, and situated in scenic, often remote locations, the dwellings of high net worth individuals and families pose particular challenges when it comes to disaster resiliency. But help is on the way.

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Armed with loss data, innovative new programs, technological advances, and a growing army of niche service-providers aimed at addressing an astonishingly diverse set of risks, insurers are increasingly determined to not just insure against their high net worth clients’ losses, but to prevent them.

Insurers have long been proactive in risk mitigation, but increasingly, after the recent surge in wildfire and storm losses, insureds are now, too.

“Before, insurance was considered the only step in risk management. Now, our client families realize it is one of the many imperative steps in an effective risk management strategy,” said Laura Sherman, founding partner at Baldwin Krystyn Sherman Partners.

And especially in the high net worth space, preventing that loss is vastly preferable to a payout, for insurers and insureds alike.

“If insurers can preserve even one house that’s 10 or 20 or 40 million dollars … whatever they have spent in a year is money well spent. Plus they’ve saved this important asset for the client,” said Bruce Gendelman, chairman and founder Bruce Gendelman Insurance Services.

High Net Worth Vulnerabilities

Laura Sherman, founding partner, Baldwin Krystyn Sherman Partners

As the number and size of luxury homes built in vulnerable areas has increased, so has the frequency and magnitude of extreme weather events, including hurricanes, harsh cold and winter storms, and wildfires.

“There is a growing desire to inhabit this riskier terrain,” said Jason Metzger, SVP Risk Management, PURE group of insurance companies. “In the western states alone, a little over a million homes are highly vulnerable to wildfires because of their proximity to forests that are fuller of fuel than they have been in years past.”

Such homes are often filled with expensive artwork and collections, from fine wine to rare books to couture to automobiles, each presenting unique challenges. The homes themselves present other vulnerabilities.

“Larger, more sophisticated homes are bristling with more technology than ever,” said Stephen Poux, SVP and head of Risk Management Services and Loss Prevention for AIG’s Private Client Group.

“A lightning strike can trash every electronic in the home.”

Niche Service Providers

A variety of niche service providers are stepping forward to help.

Secure facilities provide hurricane-proof, wildfire-proof off-site storage for artwork, antiques, and all manner of collectibles for seasonal or rotating storage, as well as ahead of impending disasters.

Other companies help manage such collections — a substantial challenge anytime, but especially during a crisis.

“Knowing where it is, is a huge part of mitigating the risk,” said Eric Kahan, founder of Collector Systems, a cloud-based collection management company that allows collectors to monitor their collections during loans to museums, transit between homes, or evacuation to secure storage.

“Before, insurance was considered the only step in risk management. Now, our client families realize it is one of the many imperative steps in an effective risk management strategy.” — Laura Sherman, founding partner, Baldwin Krystyn Sherman Partners

Insurers also employ specialists in-house. AIG employs four art curators who advise clients on how to protect and preserve their art collections.

Perhaps the best known and most striking example of this kind of direct insurer involvement are the fire teams insurers retain or employ to monitor fires and even spray retardant or water on threatened properties.

High-Level Service for High Net Worth

All high net worth carriers have programs that leverage expertise, loss data, and relationships with vendors to help clients avoid and recover from losses, employing the highest levels of customer service to accomplish this as unobtrusively as possible.

“What allows you to do your job best is when you develop that relationship with a client, where it’s the same people that are interacting with them on every front for their risk management,” said Steve Bitterman, chief risk services officer for Vault Insurance.

Site visits are an essential first step, allowing insurers to assess risks, make recommendations to reduce them, and establish plans in the event of a disaster.

“When you’re in a catastrophic situation, it’s high stress, time is of the essence, and people forget things,” said Sherman. “Having a written plan in place is paramount to success.”

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Another important component is knowing who will execute that plan in homes that are often unoccupied.

Domestic staff may lack the knowledge or authority to protect the homeowner’s assets, and during a disaster may be distracted dealing with threats to their own homes and families. Adequate planning includes ensuring that whoever is responsible has the training and authority to execute the plan.

Evaluating New Technology

Insurers use technologies like GPS and satellite imagery to determine which homes are directly threatened by storms or wildfires. They also assess and vet technologies that can be implemented by homeowners, from impact glass to alarm and monitoring systems, to more obscure but potentially more important options.

AIG’s Poux recommends two types of vents that mitigate important, and unexpected risks.

“There’s a fantastic technology called Smart Vent, which allows water to flow in and out of the foundation,” Poux said. “… The weight of water outside a foundation can push a foundation wall in. If you equalize that water inside and out at the same level, you negate that.”

Another wildfire risk — embers getting sucked into the attic — is, according to Poux, “typically the greatest cause of the destruction of homes.” But, he said, “Special ember-resisting venting, like Brandguard Vents, can remove that exposure altogether.”

Building Smart

Many disaster resiliency technologies can be applied at any time, but often the cost is fractional if implemented during initial construction. AIG’s Smart Build is a free program for new or remodeled homes that evolved out of AIG’s construction insurance programs.

Previously available only to homes valued at $5 million and up, Smart Build recently expanded to include homes of $1 million and up. Roughly 100 homes are enrolled, with an average value of $13 million.

“In the high net worth space, sometimes it takes longer potentially to recover, simply because there are limited contractors available to do specialty work.” — Curt Goetsch, head of underwriting, Private Client Group, Ironshore

“We know what goes wrong in high net worth homes,” said Poux, citing AIG’s decades of loss data.

“We’re incenting our client and by proxy their builder, their architects and their broker, to give us a seat at the design table. … That enables us to help tweak the architectural plans in ways that are very easy to do with a pencil, as opposed to after a home is built.”

Poux cites a remote ranch property in Texas.

Curt Goetsch, head of underwriting, Private Client Group, Ironshore

“The client was rebuilding a home but also installing new roads and grading and driveways. … The property was very far from the fire department and there wasn’t any available water on the property.”

Poux’s team was able to recommend underground water storage tanks, something that would have been prohibitively expensive after construction.

“But if the ground is open and you’ve got heavy equipment, it’s a relatively minor additional expense.”

Homes that graduate from the Smart Build program may be eligible for preferred pricing due to their added resilience, Poux said.

Recovery from Loss

A major component of disaster resiliency is still recovery from loss, and preparation is key to the prompt service expected by homeowners paying six- or seven-figure premiums.

Before Irma, PURE sent contact information for pre-assigned claim adjusters to insureds in the storm’s direct path.

“In the high net worth space, sometimes it takes longer potentially to recover, simply because there are limited contractors available to do specialty work,” said Curt Goetsch, head of underwriting for Ironshore’s Private Client Group.

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“If you’ve got custom construction or imported materials in your house, you’re not going to go down the street and just find somebody that can do that kind of work, or has those materials in stock.”

In the wake of disaster, even basic services can be scarce.

“Our claims and risk management departments have to work together in advance of the storm,” said Bitterman, “to have contractors and restoration companies and tarp and board services that are going to respond to our company’s clients, that will commit resources to us.”

And while local agents’ connections can be invaluable, Goetsch sees insurers taking more of that responsibility from the agent, to at least get the claim started.

“When there is a disaster, the agency’s staff may have to deal with personal losses,” Goetsch said. &

Jon McGoran is a novelist and magazine editor based outside of Philadelphia. He can be reached at [email protected]