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2017 Power Broker

Real Estate

A Key Innovator

Robert Colburn
Principal
ColburnColburn, Bloomfield Hills, Mich.

One of Robert Colburn’s clients faced challenges with the historic renovation of some of its buildings and the purchase of vacant distressed properties. Colburn was able to create and negotiate a program with the carriers to successfully mitigate the risks and costs across the entire portfolio.

Another developer, owner and property manager just recapitalized a high-rise office property with extensive catastrophe exposure and a high total insurable value. The lender imposed a new set of loan and insurance terms including high limits for flood and wind coverage. But because capacity wasn’t readily available in the traditional marketplace, Colburn had to go directly to the carrier’s top management to obtain the necessary limits to meet the lender’s requirements.

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“Even while on a family vacation in a different time zone, Robert accommodated several conference calls, which is a clear example of dedication,” said his client, William Gilbert, vice president and corporate controller at REDICO Management.

For another client, he leveraged his relationship with a carrier to create a stand-alone property program with comparable terms to its historic master global property program run by its joint venture partner. He was able to negotiate significant savings on the property rate and lower the attachment point in line with the client’s risk tolerance.

“Once Robert has the ball on something, I don’t need to worry about whether it gets done — I know it will,” said his client.

Man of Many Talents

Michael Feinberg
Executive Vice President
Alliant Insurance Services Inc., Boston

When one of Michael Feinberg’s clients was left without a competitive policy for its multi-building phased development project, Feinberg was quick to act.

Designing an $80 million-limit residential builder’s risk coverage in a secondary market policy form, he was able to achieve best-in-class coverage terms as well as a lower price and more favorable security terms than quoted by the incumbent.

Another client suffered fire damage to a $500,000 HVAC chiller at one of its properties in South Carolina, but the insurers were only willing to replace the control board with a retrofit model. When the client insisted that a new chiller was the only way to ensure proper HVAC operation, Feinberg spent more than six months advocating to 11 insurers and received a $530,000 payment to replace the chiller.

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In another case, he redesigned a large residential real estate client’s property insurance placement after the incumbent declined to renew after substantial flood losses.

Feinberg successfully procured the same coverage at a lower rate, including a $20 million flood aggregate with a $10 million aggregate in high hazard to meet the lender’s requirements.

“Mike has a personal feeling for every loss — he treats it like it’s his own,” said his client Edward J. Easton, owner of the Easton Group. “He’s extremely professional and highly responsive to everything that we do to meet our insurance needs.”

A Force of Nature

Alexandra Glickman
Managing Director
Arthur J. Gallagher, Glendale, Calif.

Starting a multimillion dollar five-star destination resort from scratch is never easy. Risks to consider include potential business interruption due to offshore pollution and contingent business interruption for shipments of one-of-a-kind materials.

That’s not to mention the decision to go with owner controlled or contractor controlled insurance programs.
That was the challenge facing Alexandra Glickman when her client Caruso Affiliated announced a new California coast development.

Having gone out to about 30 markets, she came up with a comprehensive and highly manuscripted insurance and risk-financing program that satisfied all parties’ needs.

She also put together a liability and property insurance program for a real estate investment trust that runs an incubator for startups in its properties across the country.

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“To be able to structure a deal that protected not only our interests and the interests of the landlord, but also to provide the startups with a simple license solution was a big win for us, both in terms of coverage and cost,” said her client.

“Alexandra is a force of nature — she’s probably one of the best brokers on the West Coast, if not in the country.”

Another client said: “Alexandra sets the tone immediately in familiarizing her clients with delivery expectations, given her real estate knowledge and stellar relationships with the insurance markets and professional networks.”

‘He’s That Good’

Mike Gong, CIC, CAWC
Area Vice President
Arthur J. Gallagher, Fresno, Calif

Mike Gong discovered that a self-storage client was paying far more than necessary for flood insurance. Working closely with the client and a risk management company specializing in flood risk, Gong proved that the majority of the client’s buildings weren’t in a flood zone, and convinced the client’s lender to amend its insurance requirement, saving the client 80 percent on its flood insurance premiums.

“Mike understands how our business works and is quick to resolve issues that arise from time to time,” said Charlie Fritts, COO for Storage Investment Management. “Because of his extensive experience he knows many of the underwriters whom he will contact personally when he feels he can make a good argument for a lower rate.”

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He has also come up with a solution for self-storage clients whose properties don’t conform to local zoning laws, which enables them to rebuild their real estate asset and indemnifies against losses.

“Mike’s key strengths are his knowledge and customer service,” said another client, Terry Aston, vice president at Carlo Development Co.

“I just send something to him and I never even have to think about it again — he’s that good.”
Another client said: “I have dealt with many brokers and agents during my time but Mike is up there with the best.”

Taking It to the Next Level

Tony Lorber
Senior Vice President
EPIC, San Francisco

When one of Tony Lorber’s clients told him it wanted to purchase earthquake insurance on its large portfolio of properties, it was time to put his thinking cap on.

Leveraging the use of earthquake models and analytics as well as his knowledge of the market, he quickly identified specific criteria where the client didn’t need to buy cover on all of its properties, on a program the client admits is difficult to insure.

This allowed the client to maximize the amount of coverage it could purchase at the best value. Last year, his client asked him to develop a new methodology that would significantly increase the number of properties included without a rise in premium.
He was able to achieve this by looking at every building on a case-by-case basis and then utilized his contacts to find the best carriers.

In another case, he recommended that his client could take greater control of its general liability losses if it had a larger retention, while also providing cost savings.

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He took about six months to finally convince the carrier that this approach made sense for his client and how it could implement this practice going forward.

“Tony is probably the most experienced and knowledgeable broker that I have ever worked with,” said Shanna Berrien, director of risk and insurance at CWS Capital Partners.

Another client said: “Tony just takes broking to a new level with his unique approach, hard work and dedication, meaning that he always exceeds our expectations.”

The One to Rely on for Complex Projects

Fred Zutel, CIC
Senior Vice President
Willis Towers Watson, Miami

When real estate development company BH3 Management decided to build a $200 million-plus ultra-luxury condominium project on Miami’s last private island, they turned to Fred Zutel.

He managed to secure an extremely competitive program, reducing the projected premium spend by more than $1.5 million, while leveraging analytics to negotiate insurance requirements with the lender and optimizing the builder’s risk program.

For another developer working on a condo project of similar size, he structured a unique surety program that saved millions and significantly reduced overall exposure.
Rocco Carlucci, director of risk management at Property Markets Group, for whom Zutel designed a new program, said: “Over the course of the 11 months that we worked together, Fred has brought to light issues that previously existed that we were then able to address at renewal, as well as to make sure that we are adhering to industry best practice.

“Fred has gone out of his way time and time again to make sure I understand what we’re discussing and why it’s important. He’s taken the time to make me feel comfortable with the options presented and in determining what solution works best.”

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Another developer client said: “Fred has always provided exceptional customer service.

“He is extremely responsive and has a quick turnaround. He always delivers when or before he says he will.”

Finalists:

Nancy Ayers
Senior Vice President
Alliant/Mesirow Insurance Services, Chicago

William Bray
Vice President
Wells Fargo, Houston

Robert Mazzaro
Managing Director
Marsh, New York

Caroline Parrish
Senior Property Broker
Aon, Miami

Nicholas Rawden
Vice President
Marsh, New York

More from Risk & Insurance

More from Risk & Insurance

Pharma Under Fire

Opioids Give Rise to Liability Epidemic

Opioids were supposed to help. Instead, their addictive power harmed many, and calls for accountability are broadening.
By: | May 1, 2018 • 8 min read

The opioid epidemic devastated families and flattened entire communities.

The Yale School of Medicine estimates that deaths are nearly doubling annually: “Between 2015 and 2016, drug overdose deaths went from 33,095 to 59,000, the largest annual jump ever recorded in the United States. That number is expected to continue unabated for the next   several years.”

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That’s roughly 160 deaths every day — and it’s a count that’s increasing daily.

In addition to deaths, the number of Americans struggling with an opioid disorder disease (the official name for opioid addiction) is staggering.

The National Institute on Drug Abuse (NIDA) estimates that 2 million people in the United States suffer from substance use disorders related to prescription opioid pain relievers, and roughly one-third of those people will “graduate” to heroin addiction.

Conversely, 80 percent of heroin addicts became addicted to opioids after being prescribed opioids.

As if the human toll wasn’t devastating enough, NIDA estimates that addiction costs reach “$78.5 billion a year, including the costs of health care, lost productivity, addiction treatment, and criminal justice involvement.”

Shep Tapasak, managing principal, Integro Insurance Brokers

With numbers like that, families are not the only ones left picking up the pieces. Municipalities, states, and the federal government are strained with heavy demand for social services and crushing expenditures related to opioid addiction.

Despite the amount of money being spent, services are inadequate and too short in duration. Wait times are so long that some people literally die waiting.

Public sector leaders saw firsthand the range and potency of the epidemic, and were among the first to seek a legal reckoning with the manufacturers of  synthetic painkillers.

Seeking redress for their financial burden, some municipalities, states and the federal government filed lawsuits against big pharmaceutical companies and manufacturers. To date, there are more than 100 lawsuits on court dockets.

States such as Ohio, West Virginia, New Jersey, Pennsylvania and Arkansas have been hit hard by the epidemic. In Arkansas alone, 72 counties, 15 cities, and the state filed suit, naming 65 defendants. In Pennsylvania, 16 counties, Philadelphia, and Commonwealth officials have filed lawsuits.

Forty one states also have banded together to subpoena information from some drug manufacturers.

Pennsylvania’s Attorney General, Josh Shapiro, recently told reporters that the banded effort seeks to “change corporate behavior, so that the industry can no longer do what I think it’s been doing, which is turning a blind eye to the effects of dumping these drugs in the communities.”

The volume of legal actions is growing, and some of the Federal cases have been bound together in what is called multidistrict litigation (MDL). These cases will be heard by a judge in Ohio. Plaintiffs hope for a settlement that will provide funding to be used to help thwart the opioid epidemic.

“From a societal perspective, this is obviously a big and impactful issue,”  said Jim George,  a managing director and global claims head with Swiss Re Corporate Solutions. “A lot of people are suffering in connection with this, and it won’t go away anytime soon.

“Insurance, especially those in liability, will be addressing this for a long time. This has been building over five or six years, and we are just now seeing the beginning stages of liability suits.” 

Basis for Lawsuits

The lawsuits filed to date are based on allegations concerning: What pharma knew or didn’t know; what it should have known; failure to monitor size and frequency of opioid orders, misrepresentation in marketing about the addictive nature of opioids; and false financial disclosures.

Opioid manufacturers, distributors and large drugstore chains together represent a $13 billion-a-year industry, meaning the stakes are high, and the pockets deep. Many have compared these lawsuits to the tobacco suits of the ’90s.

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But even that comparison may pale. As difficult as it is to quit smoking, that process is less arduous than the excruciating and often impossible-to-overcome opioid addiction.

Francis Collins, a physician-geneticist who heads the National Institutes of Health, said in a recorded session with the Washington Post: “One really needs to understand the diabolical way that this particular set of compounds rewires the brain in order to appreciate how those who become addicted really are in a circumstance where they can no more [by their own free will] get rid of the addiction than they can get free of needing to eat or drink.”

“Pharma and its supply chain need to know that this is here now. It’s not emerging, it’s here, and it’s being tried. It is a present risk.” — Nancy Bewlay, global chief underwriting officer for casualty, XL Catlin

The addiction creates an absolutely compelling drive that will cause people to do things against any measure of good judgment, said Collins, but the need to do them is “overwhelming.”

Documented knowledge of that chemistry could be devastating to insureds.

“It’s about what big pharma knew — or should have known.  A key allegation is that opioids were aggressively marketed as the clear answer or miracle cure for pain,” said Shep Tapasak, managing principal, Integro Insurance Brokers.

These cases, Tapasak said, have the potential to be severe. “This type of litigation boils down to a “profits over people” strategy, which historically has resonated with juries.”

Broadening Liability

As suits progress, all sides will be waiting and watching to see what case law stems from them. In the meantime, insurance watchers are predicting that the scope of these suits will broaden to include other players in the supply chain including manufacturers, distribution services, retail pharmacies, hospitals, physician practices, clinics, clinical laboratories and marketing agencies.

Litigation is, to some extent, about who can pay. In these cases, there are several places along the distribution chain where plaintiffs will seek relief.

Nancy Bewlay, global chief underwriting officer for casualty, XL Catlin

Nancy Bewlay, XL Catlin’s global chief underwriting officer for casualty, said that insurers and their insureds need to pay close attention to this trend.

“Pharma and its supply chain need to know that this is here now. It’s not emerging, it’s here, and it’s being tried. It is a present risk,” she said.

“We, as insurers who identify emerging risks, have to communicate to clients. We like to be on the forefront and, if we can, positively influence the outcome for our clients in terms of getting ahead of their risks.”

In addition to all aspects of the distribution chain, plaintiffs could launch suits against directors and officers based on allegations that they are ultimately responsible for what the company knew or should have known, or that they misrepresented their products or signed off on misleading financial statements.

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Shareholders, too, could take aim at directors and officers for loss of profits or misleading statements related to litigation.

Civil litigation could pave the way, in some specific instances, for criminal charges. Mississippi Attorney General Jim Hood, who in 2015 became the first state attorney general to file suit against a prescription drug maker, has been quoted as saying that if evidence in civil suits points to criminal behavior, he won’t hesitate to file those charges as well.

Governing, a publication for municipalities and states, quoted Hood in late 2017 as saying, “If we get into those emails, and executives are in the chain knowing what they’ve unleashed on the American public, I’m going to kick it over to a criminal lawsuit. I’ve been to too many funerals.”

Insurers and insureds can act now to get ahead of this rising wave of liability.

It may be appropriate to conduct a review of policy underwriting and pricing. XL Catlin’s Bewlay said, “We are not writing as if everyone is a pharma manufacturer. Our perception of what is happening is that everyone is being held accountable as if they are the manufacturer.

“The reality is that when insurers look at the pharma industry and each part of the supply chain, including the pharma companies, those in the chain of distribution, transportation, sales, marketing and retail, there are different considerations and different liabilities for each. This could change the underwriting and affect pricing.”

Bewlay also suggests focusing on communications between claims teams and underwriters and keeping a strong line of communication open with insureds, too.

“We are here to partner with insureds, and we talk to them and advise them about this crisis. We encourage them to talk about it with their risk managers.”

Tapasak from Integro encourages insureds to educate themselves and be a part of the solution. “The laws are evolving,” he said. “Make absolutely certain you know your respective state laws. It’s not enough to know about the crisis, you must know the trends. Be part of the solution and get as much education as possible.

“Most states have ASHRM chapters that are helping their members to stay current on both passed and pending legislation. Health care facilities and providers want to do the right thing and get educated. And at the same time, there will likely be an uptick in frivolous claims, so it’s important to defend the claims that are defensible.”

Social Service Risk

In addition to supply chain concerns, insurers and insureds are concerned that even those whose mission it is to help could be at risk.

Hailed as a lifesaver, and approved by the Food and Drug Administration (FDA), the drug Naloxone, can be administered to someone who is overdosing on opioids.  Naloxone prevents overdose by blocking opioid receptor sites and reversing the effects of the overdose.

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Some industry experts are concerned that police and emergency responders could incur liability after administering Naloxone.

But according to the U.S. Department of Justice, “From a legal standpoint, it would be extremely difficult to win a lawsuit against an officer who administers Naloxone in good faith and in the course of employment. … Such immunity applies to … other professional responders.”

Especially hard hit are foster care agencies, both by increased child placements and stretched budgets. More details in our related coverage.

While the number of suits is growing and their aim broadening, experts think that some good will come of the litigation. Settlements will fund services for the addicted and opioid risk awareness is higher than ever. &

Mercedes Ott is managing editor of Risk & Insurance. She can be reached at [email protected]