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Cover Story

SANDY: One Year Later

The number of potential triggers and coverages affecting commercial claims is as massive as Sandy was.
By: | October 1, 2013 • 11 min read

A year after a storm bigger than the country of Mongolia hammered the northeastern United States, many commercial clients are still slogging through the claims adjustment and review process.

But for all of the complexities and intricate calculations required, the outlook is mostly sunny. That’s a good thing because Superstorm Sandy “is not a freak event by any means,” said Claire Souch, vice president of Model Solutions, Risk Management Solutions (RMS).

In fact, in the future, she said, “there could be more severe storms than Sandy hitting the northeastern U.S.”

As risk managers continue to crunch numbers, agonize over policy terms and negotiate their way through the claims adjustment process, they should also make sure to acknowledge shortcomings in disaster planning and risk transfer strategies.

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As always, too many organizations did not protect themselves from flooding, thinking their properties were immune. That came back to haunt many of them.

“Business entities should not look at insurance as their only way to plan for what happens if there is a natural disaster,” said Marty Frappolli, senior director of knowledge resources at The Institutes, a nonprofit educational organization that provides professional development and research for the insurance industry. “They should have an enterprise risk management approach, or an agent or broker should serve in the risk management role.”

Superstorm Sandy, which remained at hurricane strength until just before making landfall near Brigantine, N.J., about 7:30 p.m. on Oct. 29, was close to 1,000 miles in diameter, according to the National Oceanic and Atmospheric Administration (NOAA). While the effects were felt as far west as Wisconsin — and resulted in blizzards in some areas — the states most affected were New York and New Jersey.

Total economic losses have been estimated at up to $70 billion or higher, with insured losses between $25 billion and $35 billion. Souch said about 65 percent of the insured losses were due to surge-related flood damage, with the remainder caused by wind-related damage.

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But nothing is simple when adjusting property, business interruption or contingent business interruption claims, particularly in this situation, when the affected geographic area was so large.

A business could have multiple locations and each location could have been affected in one or different ways — flood, water, power outage, evacuation orders, ingress/egress — and that’s before determining whether coverage was triggered and what sublimits, deductibles and waiting periods applied.

“You have all of these different factors applying on a massive scale, all at the same time,” said John Shugrue, an attorney and partner with Reed Smith. “And the larger the claim, the more likely it is to be resisted by insurers. It’s sort of the law of large numbers.”

For all of the immensity of the damage, it’s important to remember that it was insurance professionals who were the “second responders,” Frappolli said.

“First responders get a lot of praise and attention for putting their lives on the line during a disaster,” he said. “But the very next day, insurance people with water, meals, supplies and checkbooks start to provide the grease to the economic engine.”

Insurers sent in tens of thousands of adjusters and experts to “get a jump start on claims,” he said. Liberty Mutual, alone, assigned 18,000 employees to respond to Sandy.

Claims Surge to 1.52 Million

The catastrophic commercial losses from Sandy were not all that different than the losses sustained in hurricanes Katrina or Ike. What was different was that New Yorkers just don’t expect hurricanes to hit their businesses or homes the way residents in Florida or North Carolina do.

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“The Northeast region is not accustomed to handling property claims [resulting from named windstorms], even though they did get somewhat of a wake-up call with Hurricane Irene,” said Clark Schweers, principal and lead, Insurance Claims Service Practice in the United States for BDO Consulting.

“Sandy was a different scale,” he said. Plus, the Northeast is denser, with both people and buildings, than further south. That ratcheted up the difficulty in preparing for the storm and in responding to it.

More than 1.52 million total claims were filed for losses resulting from Sandy, according to the Insurance Information Institute (III) and Property Claim Services (PCS). About 13 percent were from commercial clients, which accounted for 48 percent of the insured dollar losses.

III reported that 93 percent of all claims had been settled by the six month anniversary of the storm.

“By and large, the vast majority of these claims, they were filed, they were settled and they were closed,” said Robert Hartwig, an economist and president of the III.

In just New York and New Jersey alone, nearly 880,000 insurance claims were filed. About 36 percent of commercial claims filed in New Jersey were closed without payment. New York does not keep separate numbers for business or personal claims. In all, 19 percent of New York’s total claims were closed without payment.

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Bill Krekstein, an attorney and partner at Nelson Levine de Luca & Hamilton, said the interactions between insureds and insurers have been mostly positive.

“It appears most people would tell you the majority of insurance claims are going pretty smoothly,” he said. “I think carriers are stepping up. They are being very proactive in the adjustment process.”

Obviously, the first step was establishing the cause of loss. It may sound simple, but it’s not.

“The term that really bubbled up was ‘storm surge,’ ” said Frappolli. Surge is defined as rising ocean water driven by wind, so is it a flood event or a wind event?

“The insurance carriers,” said Al Tobin, national property practice leader at Aon Risk Solutions, “very much tried to push ‘surge’ into the definition of flood. … They were not as successful as they would have liked to have been, so ‘surge’ still remains in windstorm for key customers.”

Concurrent Damage

Then, there is the question of whether coverage is triggered when damage is caused by a combination of wind and flood. That’s when a policy’s “anti-concurrent causation” (ACC) exclusion plays a big role in determining whether a payout will be forthcoming.

Say an insured has coverage for wind damage but not for flood damage — and it suffered both wind and flood damage. The ACC clause will exclude the loss, in whole or in part, because the act occurred concurrently with the excluded act of flooding.

For example, when New York companies lost power after a lower Manhattan substation of the city’s utility ConEd exploded on Oct. 29, their coverage may have depended on the cause of that explosion, said Reed Smith’s Shugrue.

If the power failure was caused by flooding that resulted in arcing, then a company’s business interruption coverage, as well as the sublimits or deductibles that would apply, may depend on its flood coverage, he said. If it was caused by an explosion or mechanical failure, the coverage situation may be quite different.

The ACC exclusion, said Finley Harckham, an attorney and partner with Anderson Kill, has generally been upheld in New York courts.

“In New Jersey, it’s still an open issue,” he said. “That’s one component issue that will have to be resolved by the New Jersey Supreme Court so people will know if they have coverage when flood may have played a role, but was not the sole cause of their loss.

“We are seeing a lot of disputes, and some litigation, over policies which provide separate coverages, limits and deductibles for named storm and flood.

“The policyholders expect to be entitled to the most coverage available under both of those perils for Sandy losses, while the insurers try to limit coverage to the greatest extent possible under those clauses,” he said.

Harckham said he has seen fewer contested claims resulting from Sandy than from previous catastrophic events such as Katrina, but “I wouldn’t say the process is necessarily going smoothly.”

Many insureds whose claims were denied had electrical systems, HVAC machinery, computer hardware and other critical infrastructure in building basements.

“A lot of buyers who had buildings in flood zones were very upset about that,” said Tobin, noting that many organizations since then have made plans to move their equipment to higher levels. New York building codes may actually make that a requirement in the future.

It wasn’t just mechanical equipment that was damaged in basements. One insurer filed suit on behalf of a client against Christie’s Inc., claiming the well-known auction house left more than $1.5 million in artwork exposed to flooding on the ground floor of a warehouse in Brooklyn.

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Organizations also suffered unrecompensed losses because their employees or customers just couldn’t get to the area because roads or tunnels were closed, access was denied or gasoline was nearly impossible to get.

Physical damage is generally needed to trigger business interruption coverage, said Sheri Wilson, National Property Claim director at Lockton.

“I think there was a lot of exposure to companies that was just not insured,” she said. “It was not insured and it wasn’t insurable.”

One of the peculiarities of the storm hitting the Northeast, said BDO Consulting’s Schweers, is that the commercial organizations affected were predominantly retail or service establishments, which are “not as attuned to having these types of losses,” as manufacturing or tourism operations in the Southeast.

Plus, trying to determine the coverage and losses for as many as several thousand different locations is a huge undertaking. Just some of the questions that need to be answered for each individual location are whether the losses were due to flood, wind, power outages, evacuation orders, or inability to get supplies or even get to the business location, he said.

“To try to tell the story of each individual location, when you have so many properties impacted, can be very, very difficult and it takes time to gather that information,” Schweers said.

Establishing the period of restoration to bring the property to its pre-loss condition is also a potential dispute between insureds and carriers, Krekstein said.

“In a lot of these cases, you need a forensic accountant [to determine the loss],” he said. “Generally, only a small percentage of cases ever go to trial.”

In some states hit by Sandy, policyholders are usually required to institute legal proceedings within 12 to 24 months, so it’s not unusual that the courts have not seen a surge of lawsuits thus far. That’s not to say litigation is nonexistent, however.

In the Courts

As always, when insurance disputes hit the courts, decisions often turn on the choice of words used in policies, the definitions of those words and the relationship of various concepts found throughout the policy forms.

In one case, Fisker Automotive Inc. settled its $32 million lawsuit with XL Insurance America over the loss of 338 hybrid electric vehicles that were damaged at a Port Newark, N.J., facility. Before the settlement, Fisker argued the claim involved a loss in transit, as many of the cars were to be delivered to dealerships.

The insurer argued Fisker had no transit coverage, and the claim was limited to $5 million, at most, because Fisker’s commercial property policy had a transit sublimit. Fisker argued that a $100 million named storm sublimit applied. The amount of the settlement was not disclosed.

In another case, New Jersey’s utility, PSEG, filed suit against 11 insurers, claiming the carriers capped coverage at $50 million because of flood sublimits, instead of the $426 million in damage that it suffered from Sandy.

Some brokers, also, are finding their professional services questioned in legal complaints because of the wide-ranging impact of the storm. Companies, whose claims were denied, have filed suit against their brokers, claiming inadequate advice or a failure to purchase requested insurance.

“A lot of those claims,” Krekstein said, “fall back on ‘he said, she said’ types of situations, so it’s a little more fact-intensive” instead of interpreting policy language, as is common with many insurance disputes.
When it comes to contingent business interruption issues, it’s even more complex because that is a “relatively new type of coverage,” he said, that is triggered when a supplier has a loss that directly impacts the insured.

“The issue with that coverage is that there is not a lot of law on it,” Krekstein said.

Aon’s Tobin said the storm should bring “a greater awareness and greater attention to how clients buy insurance and it’s also driving significant attention for insurers on how to price the product and how much capacity they will offer, specifically for wind.”

The event has resulted in an “explosion of Cat bonds,” he said, since that’s a solution for some clients that have significant wind and earthquake limits. RMS has also been involved in a Cat bond deal for the MTA, New York’s transportation authority, which saw eight tunnels flooded and suffered about $5 billion in damage.

“It is important to remember,” Tobin said, “these Cat bond deals only work for modeled perils.”

III’s Hartwig said he believes “more businesses will start to get the message that they need to have complete and full protection against these types of events,” he said, “including flood, business interruption and, possibly, contingent business interruption coverage.”

“These are lessons very, very hard learned,” Hartwig said. “When you look at the experience of the past decade now, it’s very difficult to understand how businesses would not fully and completely insure themselves. Is coverage expensive in some areas? Yes, it is, but it is available.”

“It’s just the same lesson,” Frappolli said, “we keep learning over and over again.”

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

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]