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COVID-19: Moral Imperative for the Insurance Industry

When I saw this article in the Wall Street Journal this week, on how states are pressuring insurers to pay business interruption claims related to COVID-19 even though policies specifically exclude pandemics, I was reminded of my first encounter with the “deep pockets” theory that is driving the pressure.

A college friend who was a new associate at one of Chicago’s biggest law firms had managed to get me invited onto its softball team, and a bad hop on a wicked single had shattered the nose of our rightfielder. Once we bundled the poor fellow into a car, so someone could drive him to an emergency room, the young associates started talking about who was liable. Natch. But whom?

Someone suggested that the rightfielder bore liability because he played rarely and perhaps should have known better than to take the risk. But you don’t sue your teammate. So, an eager associate joked that the batter bore the liability for blistering the ball. “What about the pitcher, who served up such a juicy ball?” another asked. Then came the definitive ruling, from still another: “Who has the deepest pockets? The municipality. We sue the municipality for not maintaining the field properly and allowing for that bad bounce.”

We all had a laugh, and nobody sued anybody, but I’ve seen over the past few decades just how appealing the “deep pockets” approach is, and now the insurance industry is a target of those looking to finance relief from the pandemic.

Do we have a responsibility to provide business interruption insurance even though it’s not covered in the contracts? More broadly, what is the industry’s responsibility to help with this crisis?

No, I don’t think the industry should have to cover business interruption due to the pandemic. I think small businesses and individuals, who did nothing wrong, should be bailed out by government as part of a collective effort by us taxpayers and citizens. But I don’t see why the insurance industry bears any special responsibility. Two years ago, Marsh actually offered a policy that would cover pandemics, and no one bought it, so why should insurers have to cover them, essentially for free? A contract is a contract.

But….

But, but, but….

I think there is a moral imperative for the industry to do everything it can, even if means bending some rules and forgoing some revenue in the short term. There should even be long-term payoffs for generosity now—though that needs to be a secondary consideration.

When I was a kid, and one of my seven siblings or I (yes, Irish Catholic) would head out the door, my Dad would typically call one of two things after us, “Remember your name is Carroll,” or, “Do the right thing.” While the first admonition applied just to us Carroll kids, I’ve found the second to be a remarkably good guide to behavior, whether individual or corporate, ever since.

In the current moment, doing the right thing looks to me like finding ways to defer premium payments when possible. After all, the insurance industry is in strong financial position, while many clients, especially individuals and small businesses, are not. Why not let them rest on the broad shoulders of the insurance industry and borrow our balance sheet for a while? It’s not like the cost to insurers would be material, in a period when interest rates are nearly zero.

Is there some way to quickly diminish workers’ comp payments at small businesses where, after all, so many people aren’t working? Maybe recalculate slip-and-fall liability as long as there aren’t customers or workers who will slip and fall? Reduce premiums for commercial auto fleets if they’ve been idled? For buildings that aren’t being used? Temporarily lower premiums for individuals whose cars are just sitting in their driveways or on the street?

I realize that regulators will need to weigh in on premium adjustments and that some bad debts will arise if people get into the habit of not paying their premiums, but I think my broad point stands. There are probably lots more ways to support clients in their time of need, too. Perhaps a blanket deferral of premiums for businesses with dire cash flow?

If a claim is the proverbial moment of truth, then this pandemic is the moment of truth among moments of truth. This is the moment to shine.

There are loads of people out there who are convinced that insurers are unfeeling and nothing more than greedy. Look at this article in the Daily Beast. The haters can control the narrative, or we can.

Look at the great publicity that Cigna and Humana have received for waiving copays on coronavirus treatment. Or, look at the coverage of the humanitarian gesture by Zion Williamson, a rookie with the New Orleans Pelicans, who said he’d cover 30 days of expenses for the team’s stadium staff after the NBA put its season on hold. This is a 19-year-old kid (albeit, one earning some $20 million a year). Surely, with all the resources in the insurance industry, we can make many such grand gestures.

Whatever we do or don’t do, it’ll be remembered for months and years to come. So, let’s do the right thing. Let’s help in every way we can, even if it means going outside the normal rules and procedures. It shouldn’t cost much, if anything, in the short run and will return long-term dividends both for the industry and for grateful clients.  

Stay safe.

Paul Carroll

Editor-in-Chief

100 Ideas That Changed Insurance

Recently, I bought a copy of Time magazine’s publication, TIME 100 Ideas That Changed the World: History’s Greatest Breakthroughs, Inventions and Theories, in an airport book store while on a business trip.

It was certainly a compact and interesting read, highlighting amazing innovations that we now accept as the norm of human existence on Planet Earth, from the discovery of germs to the foundation of a seven-day week to the building of the World Wide Web. I was amazed as I read through it and was reminded of how human existence since the beginning of recorded history has been truly shaped through ideas turned into game changing innovation results.

The purpose of this blog is not to get philosophical about our evolution as humans but, rather, to relate it to the world we live in every day: insurance. So of course, after I paged through the Time book, my wheels started spinning around the 100 ideas that have changed insurance – and I started to reflect on how we as an industry got to where we are today.

The history of innovation in insurance has largely been shaped by advances made in technology external to the industry. As markets, businesses and consumers start to access better ways of doing business, insurance companies adjust to meet those demands. The same can be said for many other industries. But insurance is unique because its very core concept is to protect our customers’ assets from loss and mitigate risks. So, inherently, the insurance industry will always adapt in some form to technology changes to assist the customer. That is what we do every day – we adapt – though some days we don’t necessarily remind ourselves of the core mission.

I started to ask myself, if we had to make a list, what would be the 100 ideas that changed insurance? I think it would be too hard to classify, in terms of the entire evolution of our ecosystem, because the last 100 years have changed so much. So let’s just focus on the last 40 years from a technology perspective: mainframes … client servers … personal computers … development of core systems and automated business processes … data processing to information systems … typewriters to the fax machine, copiers, printers, scanners and even email … our world on the World Wide Web … mobile phones … web applications … smart phones … big data … telematics and even some of the emerging technologies like Internet of Things, wearable devices, artificial intelligence, semantic technologies and even drones and aerial imagery. The list of maturing and emerging technologies does just go on and on. It might be hard to pare it down to just 100 ideas, even by looking at just technology.

The point is, when we talk of ideation and innovation, sometimes we forget to reflect on where we have been. Forty years ago, if someone described writing a blog for you that you could read on your mobile device, you may have seriously questioned their sanity. Today, it is commonplace.

As we move rapidly through 2015 – look at plans; take the time to reflect on successes; take the time to reflect on where we truly have been. Sometimes these reflections are the seeds of new ideas, new ways of doing business and new ways to gain an edge. Just think, for every great solution out there, there is a better one possible. Innovation should be inspiring our work, and I am excited to see where it leads us.

5 Musts for Being a Thought Leader

Your clients and prospects are inundated with information online to help them solve their problems. Some of the information is genuinely educational; most of it, though, is self-promotional or generic. How do you stand out and get noticed as the one they should turn to for help? One way to break through the clutter is to focus on thought leadership.

What is a thought leader, and why do you want to be one? There are lots of definitions, but I like this one from Forbes:

“A thought leader is an individual or firm that prospects, clients, referral sources, intermediaries and even competitors recognize as one of the foremost authorities in selected areas of specialization, resulting in its being the go-to individual or organization for said expertise … [and thereby] significantly profit[ing] from being recognized as such. “

As the go-to expert, you’re likely to profit in many ways. Regardless of whether it directly brings in new business, thought leadership helps to differentiate you from competitors, expand your reach and build relationships and trust with your audience. You’re also educating people and promoting deeper and more informative discussions, which is a public service.

That all sounds great, but how can you be a thought leader?

1. Understand your sweet spot. In his book, Epic Content Marketing, Joe Pulizzi defines the sweet spot as “the intersection between your customers’ pain points and where you have the most authority with your stories.” Take the time to really research your audience’s needs and concerns. Then consider what expertise and insights you can offer to help them. Don’t spend time talking about areas where you are not well-informed and don’t have much value to add. Focus on what you know best that can assist your clients.

2. Differentiate your message. Your strongest competitors will be trying to do the same thing you are doing – providing valuable content. Know what they are saying and doing and look for ways to be even better or different. For example, focus on a narrow niche, survey the industry and share research, have an opinion, identify trends and provide insights. Give specific and actionable strategies taking into account whatever new developments are occurring. The point is to go beyond sending out a typical client alert that sounds just like the ones from every other firm. The Forbes article provides a great example, but we’ve all seen examples of thought leadership. We know who is going above and beyond.

3. Have a strategy and goals and align the two. Being a thought leader is a lot of work, and you want to be clear about what you’re doing, why you’re doing it and what you hope to get out of it. Seems pretty obvious, but the reality is that too many firms start down a path without thinking it through. For example, you have an attorney who happens to be a prolific writer and speaker in a specific area of the law. The problem is that area is not very profitable or high-priority for the law firm. How much effort do you want to put behind promoting expertise that isn’t a good fit for the firm? Or maybe the thought leadership is great and would be good for the firm, but it’s not being seen by the right niche audiences. Sometimes, firms focus on getting the content piece right but spend less time making sure the promotion and distribution is getting to their target market. You need to bring both parts together in a strategic way; otherwise, how are you going to profit from being a thought leader?

4. Write, speak and share information consistently. You can’t be a thought leader if you don’t put your thoughts out there. Write articles, blog posts, whitepapers and books. Curate and comment on other people’s content. Speak at online and live events. Create video. Use social media. You don’t have to do them all, but put out content in different formats to maximize your reach and appeal to different audiences. And do this regularly. Thought leadership is a long-term strategy. People have to hear from you on a consistent basis. An occasional article or speech isn’t enough, even if it’s really great. Of course, there are lots of ways to repackage that great content to get more life out of it, but make sure you’re doing that. You must be visible on a regular basis.

5. Cultivate relationships with other experts, influencers, industry professionals and media. As you develop your thought leadership, reach out to other authorities. Gather and share their insights with your audience, make introductions and give referrals and offer to help them with their content. By assisting others, you’re getting your name out to key contacts in your field and developing deeper relationships, and it’s likely at least some people will reciprocate by helping you. It will also make your thought leadership better-informed because you’re incorporating insights from others.

Becoming a thought leader is a long-term commitment and a lot of work. However, successful firms know the investment is worth it, to not only survive but thrive against the competition.

Can Employers Ever Monitor Employees' Personal Social Media?

Yes, but be careful! There is no denying that the use of social media sites such as Facebook, Twitter and LinkedIn has exploded. The explosion includes both personal and business use of social media. It also includes use that is beneficial to employers and use that can be very damaging. Unfortunately, the influx of employment lawsuits that have followed the explosion have had limited practical value in guiding employees and employers on the permissible use and oversight of social media in the workplace. While many questions remain, the California State Legislature's recent enactment regulating employer use of social media does provide some guidance.

California Labor Code section 980 was enacted to prevent employers from (1) requesting an employee disclose usernames or passwords for personal social media accounts; (2) requiring an employee to access his or her personal social media in the presence of the employer; or (3) requiring an employee to divulge any personal social media to the employer. Applicants are protected in the same way as employees. The new statute, coupled with existing privacy laws, limits what employers may monitor when it comes to the personal social media of employees and applicants.

Definition Of Social Media
In what appears to be an effort to account for the ever increasing development of new social media, the new statute broadly defines social media as an “electronic service or account, or electronic content, including, but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, e-mail, online services or accounts, or internet web site profiles or locations.”

Prohibitions On Employers Monitoring Social Media
Employers may not require, or even request, that an employee or applicant:

  • Disclose a username or password for the purpose of gaining access to the employee or applicant's personal social media;
  • Access their personal social media in the employer's presence; or
  • Divulge any personal social media.

Employers are also prohibited from retaliating or threatening to retaliate against an employee or applicant who refuses to comply with a request or demand that violates the statute.

Despite the statute's broad definition of social media and its restrictive prohibitions on employers, it does provide some exceptions under which employers may request and gain access to employees' personal social media. For each exception, however, pitfalls exist. Employers need to know them in order to avoid costly mistakes.

Accessing Social Media As Part Of An Investigation
The statute does not affect an employer's existing rights to obtain personal social media “reasonably believed to be relevant” to an investigation of employee misconduct. Under this exception, the employer may only access the employee's personal social media under the condition that it is used strictly for purposes of the investigation or a related proceeding. While the statute does not define what “reasonably believed to be relevant” means, California Courts evaluate employee privacy concerns utilizing a balancing test, weighing the employee's reasonable expectation of privacy against the employer's legitimate business needs for accessing the information. It is wise for employers to evaluate each instance carefully before requesting an employee to divulge his or her personal social media under this exception.

Employer-Issued Electronic Devices
The statute does not preclude an employer from requiring an employee to disclose a username and password for the purpose of accessing an employer-issued electronic device such as a computer, smartphone or e-mail account. Employers should exercise caution, however, before digging through an employee's use of personal social media on the employer-issued device.

It is a violation of the federal Stored Communications Act to access a restricted or password protected site without the owner's consent. So, while it is permissible for an employer to require an employee to provide his or her password for access to the employer-issued device, an employer may be violating the law by accessing social media information on the device. For instance, having the IT department look up the employee's Facebook password stored on the employer-issued device in order to gain access the employee's personal Facebook page.

Adverse Action Against Employees
The statute does not prohibit an employer from terminating or taking adverse action against an employee or applicant if otherwise permitted by law. For instance, an employer may discipline an employee for violating company policy and using personal social media during work time. Nor does the statute specifically prohibit employers from accessing publicly available social media. This means that employers may view the personal social media of its employees that is available to the general public on the internet, such as blogs and other websites that do not restrict user access.

But, before taking any adverse action against an employee based upon the content of his or her personal social media, employers must keep in mind that California law prohibits employers from discriminating against an employee based upon the employee's lawful conduct occurring away from the employer's premises during non-work hours. Moreover, the National Labor Relations Board has held that employees may use social media to voice concerns over working conditions. While an employee complaining about working conditions or an issue with a manager on his or her Facebook page may reflect negatively upon the organization, the employee's use of social media to criticize working conditions may qualify as protected speech for which an employee cannot be lawfully disciplined.

What Is An Employer To Do?
First, be patient. The law develops at a snail's pace compared to the development of new technology and cultural trends. More guidance will come. In the meantime, employers should approach social media issues with careful consideration and planning. This should start with the development of a written social media policy, and not a sample or template policy. The policy needs to be specifically tailored to the employer and should discusses the importance of social media, the impact that social media has on the workplace, and how employee's use of social media reflects upon the organization. The policy should also define the permitted use of technology owned by the organization and employee's expectations of privacy or lack thereof.

If an employer elects to have a policy restricting personal social media use during work hours, it should ensure that the policy is applied even-handedly to avoid claims of discrimination. Employers should also consider the pros, cons and legal issues that relate to restrictions on supervisors' social media interaction with subordinates. For most organizations, it would be advisable to inform employees that they are not required to interact with supervisors on personal social media and will not be retaliated against for refusing to interact with supervisors.

A carefully planned and well written social media policy that outlines the organization's goals and expectations of employees' use of personal social media can help ensure compliance with the new rules and prevent costly disputes with employees.

Flo Won't Handle Your File: Claims in the Social Media Age

Viral phenomena on the Internet more frequently concern “Cats that Look like Hitler” or racy photos of Prince Harry cavorting in Las Vegas.

Insurance claims rarely go viral on social media, but that changed recently with a controversial underinsured motorist claim involving Progressive Insurance Company. You can find background on the case here.

The sad facts here are straightforward. Progressive Insurance Company policyholder Katie Fisher died in a 2010 automobile crash in Maryland. Allegedly, the other driver ran a red light, though there was a dispute as to who had the green light and the right-of-way. The driver that struck Katie’s vehicle was under-insured. The good news: Katie had bought underinsured motorist coverage (UIM).

The bad news: to collect, Katie’s family had to sue the other driver for negligence to force Progressive to pay. However, when the family sued the other driver, Progressive’s attorneys associated with the other driver’s attorneys to defend the liability claim. As a result, the deceased’s brother went viral in social media rounds, complaining that Progressive used premium dollars to defend his sister’s killer in court. That makes for an arresting headline.

This claim illustrates the importance of an insurance company being attuned to social media and having a social media policy. Of course, here Progressive did not stick its head in the sand. It did not ignore the social media buzz surrounding its handling of the case. Apparently, it responded but responded in a way perceived as tone-deaf.

Progressive In A Lose-Lose Situation?
Maybe Progressive Insurance Company was in a no-win situation. If it ignored the social media banter about its stance, consumers would accuse it of insensitivity. It entered the dialogue to justify its actions. In so doing, people accused it of being tone-deaf to consumer sensitivities. I don’t know what response Progressive could have launched on social media that would have satisfied its critics.

This vignette underscores how little people understand what they buy when purchasing underinsured motorist coverage. Buying underinsured motorist coverage essentially risks putting you at odds with your own insurance company. In such a claim, your own insurance company is incentivized to show that you in fact were at fault for the accident and/or that your injuries were not the result of the negligence of an underinsured driver. People assume that the insurance company to whom they paid their premiums will always be on their side. Typically, this is the case. Typically, this is the alignment of interests.

In underinsured motorist coverage and claims, however, “typical” doesn’t necessarily apply. Here, interests are aligned differently. Just because you pay your insurance company for the coverage doesn’t mean that — in a claim involving an underinsured adverse driver — your insurance company is going to act all soft and fuzzy.

Of course, insurance companies would not effectively market and sell underinsured motorist coverage if they made this reality explicit and spotlighted it in the sales process. People don’t think it through. Nobody really believes deep down they will be hurt due to the fault of an underinsured driver. If they pay for the coverage, perhaps they pay for it begrudgingly at best.

Policyholder Ignorance About Underinsured Motorist Coverage
So, those who say “Shame on Progressive” for its stance adverse to its own policyholder could add, “Shame on the policyholder” for not realizing the dynamics in underinsured motorist claims. Of course, it sounds callous to be lecturing a family on the dynamics of claims-handling when they have lost their daughter in a fatal car accident.

Further, there was a reasonable question of fact as to who had the right-of-way. Should Progressive and its adjusters have ignored evidence that the deceased may have been at fault in order to pay the claim? It’s difficult to fault Progressive’s adjusters here, as tempting as it may be to do so. There was a legitimate dispute as to who had the right-of-way and who ran the red light. Was Progressive wrong for exercising its legal right to seek a judicial determination of liability?

Personally, I don’t think so.

Nevertheless, insurance companies now face not just bad faith risks over how their claim department handles or mishandles an automobile loss. They also face reputational risks if disgruntled consumers take to Twitter, Facebook, blogs, Tumblr, etc. to air their gripes.

Internet Megaphones
The Internet and social media provides a bully pulpit and cyberspace megaphone for anyone who has a beef, whether that complaint is justified or specious. On the other hand, since everyone now has an electronic megaphone via the Internet, World Wide Web and social media, the cacophony of complaints can create a “white noise” effect that makes any one complaint difficult to stand out. This complaint did stand out, though, and got widespread media play.

While it is tempting to say “No comment” or “We won’t try our case in the media,” insurance companies — like other businesses — cannot take an ostrich approach and stick their heads in the proverbial sand.

The takeaways and lessons from this go beyond Progressive Insurance Company. Katie Fisher’s case illustrates that in the 21st century:

  • insurance companies must have social media policies,
  • they must monitor social media, and
  • they must be able to articulate a concise yet compelling message to an often skeptical audience.

It’s not enough to handle the claim conscientiously.

It’s not enough to handle it in accord with the policy conditions.

It’s not enough to comply with state insurance department regulations.

It’s not enough to believe that you acted in good faith.

If you have an under-insured motorist claim, you must realize that your adjuster will not be perky Flo from the TV commercials.

Insurers Need Social Media Strategy
This case study also spotlights the need for insurance companies to have a refined social media strategy. That goes beyond grappling with questions like, “Should we be on Facebook or Twitter?” or, “Should we have a blog?”

Sorry — those questions are so 2010. That no longer cuts it as a coherent social media strategy.

It’s no longer enough to have a digital footprint in the social media world. The content of what companies put out on social media is vital, scrutinized, and should promote their brand. Content is king.

Moreover, insurance companies must have institutionalized disciplines to monitor what is being said about them on social media so they can respond quickly and persuasively. The consumer conversation about your service and policies is going on — with you or without you. It is best that it goes on with you. It’s best that you have an opportunity to be aware of customer service firestorms brewing so that you have the opportunity to squelch them, address them and nip them in the bud.

You may have to justify your steps in the court of public opinion through social media or suffer the consequences of a public relations black eye if you hunker down and go incommunicado.

As this case study shows, adjusters are sometimes damned if they do and damned if they don’t.

Pay the claim in the face of conflicting evidence, and be second-guessed for poor decision-making by higher-ups. Contest the claim and align yourself with the other driver’s insurance company, and you get criticized in the court of public opinion for callousness.

No one promised adjusters a rose garden and they certainly don’t get to operate in one in the age of viral posts and social media!