Tag Archives: general liability

Keys to Limiting Litigation Liability

Over the last decade, businesses have placed tremendous focus on improving the safety of their products, their establishments and the services they provide to their customers. They have taken advantage of data, technology and enhanced risk management practices driving safety and quality. Yet we continue to see extreme verdicts, social inflation and “hell hole jurisdictions” in the liability arena. The question is, what more can be done?

In this paper, we will analyze the trends in liability and auto losses, both litigated and non-litigated, and provide guidance on tactics to manage those losses.

Key findings:

  • Nuclear verdicts continue to be a concern for the business and insurance community. Just one of these verdicts can have
    a major impact on individual programs. Media coverage and advertisement of these verdicts may motivate increased litigation that, in turn, creates an increased burden on carriers and companies.
  • Litigation costs continue to rise.
  • There are more attorney-represented claims at first notice of loss.
  • The “social inflation” factor is real and is likely driving some of the increasing litigation cost.
  • Litigation avoidance practices will reduce liability claim costs and increase control over the litigation rate.
  • Plaintiffs’ bar has become increasingly coordinated in approach and strategy in tort suits. An awareness of how plaintiffs’ strategies have evolved is a critical part of defending any claim.
  • Advocacy and early intervention are important factors in mitigating the likelihood that claims could evolve into more expensive disputes.
Figure 1

Despite GDP growth, we have seen an average decrease in general liability (GL) claims of 2.7% per year over the last five years (See figure 2). With the increased amount of transportation services (e.g., restaurant and retail delivery and ride-sharing services) and improvement in the economy, auto liability (AU) claims continue to increase in frequency. However, this increase is significantly less than the increase in related exposure growth.

Figure 2

Most liability and auto claims reach an amicable resolution without litigation or attorney involvement. When the parties cannot agree on resolution, the impact is substantial. The majority of the total paid for both GL and AU is attributable to disputed cases. In fact, 0.1% of all GL claims with total incurred losses over $500,000 make up 29% of total paid losses. For AU claims, 1% with values over $100,000 make up 60% of total paid losses. Clearly, even when litigation is a small fraction of the total claim volume, litigation and the largest value claims have a sizeable impact on ultimate values.

Given the impact that litigation and disputed claims have on results and incurred losses, the best outcomes for claims may be a case
of “timing is everything.” As claims mature through their life cycle, litigation rates increase. Several factors drive this result, including lack of communication, lack of understanding and poor resolution strategy. We will delve more into these drivers and the prevention and control tactics for litigation, later in this paper.

Litigation trend:

As a percentage of the whole, the litigation rate on new GL and AU claims is extremely low. (See figure 3).

Figure 3

As expected, however, the litigation rate increases significantly with claims that remain open after the initial year. (See figures 4 and 5). Despite this, the percentage of litigated liability claims has been declining in the last three years. (See figure 4).

Figure 4
Figure 5

As noted in figure 6, incoming litigation rates have remained flat
in the 0-12 month and 36-month development points while the 12-24 month and 24-36-month development points are seeing decreases. The two factors that favorably affected this include: the focus on resolving cases earlier in the life cycle; and the reduction in cases that continue in litigation past year three. Additionally, as already noted, there has been an increase in cases with attorney representation at first notice of loss. Although this has been viewed as a troubling trend, early attorney involvement can move cases to resolution earlier and makes access to information via discovery and negotiations quicker, resulting in faster evaluations and resolutions.

Figure 6

Perspectives on casualty litigation trends

In recent years, controlling the costs and outcomes of litigated cases, especially when left to juries to decide, has become increasingly challenging. At one end of the spectrum, the more egregious outcomes often referred to as “nuclear verdicts,” are commonly viewed as those cases with jury awards greater than $10 million. Another way to evaluate these cases is where the outcomes are “unexpected,” because the results were either not anticipated or considered a worst-case scenario. There are, of course, cases that have a true value of $10 million or more. But those are not the cases that are the focus of this discussion; it is the cases where a verdict is rendered far beyond what has been typical in similar circumstances.

Apart from large outlier cases, there are a growing number of cases that present unprecedented financial and reputational risk. And while these trial outcomes may be viewed as “affordable” to the defendants and insurers in specific cases, they are nonetheless often startling, considering their improbability.

In 2013, the insurance industry noticed a marked increase in auto loss frequency, which was especially concerning given that a 25-year decline in auto collision frequency was reversing. That 25-year trend was largely related to the increasing safety-related improvements in vehicle design. In subsequent industry studies, among 26 variables found to be correlated to the increase, the number of lawyers per million population was a significant variable. Since then and through 2019, plaintiffs’ lawyers continue to appear to be focusing on auto loss claims given the increased frequency. A detailed report by the Casualty Actuarial Society elaborates on this premise.

Industry-wide GL trends also reflect deteriorating conditions, with most GL costs attributable to litigated claims. It is noteworthy that, among four key drivers in a recent Milliman report on the GL line, two were related to litigation: litigation funding and the increase in jury award frequency and severity. The report noted that the ratio of non-economic to economic damages is increasing. In addition, Advisen maintains a large general and products liability loss dataset that reveals that plaintiffs’ attorneys have increasingly coordinated to create strategies that drive higher verdicts.

So how significant is the nuclear verdict risk? The chart below lays out the number of these verdicts for the past five years.
(See figure 7).

Figure 7

The total number of these verdicts has decreased over the past two years and is well below the five-year average. However, that decrease is countered by the increase in the value of those verdicts. According to one nationwide source of verdicts and settlements, for 2015, the largest verdict, in a wrongful death action in Florida, was over $844 million. By contrast, the largest verdict for 2019 was $8 billion for a Risperdal verdict against Johnson & Johnson in Pennsylvania (later reduced to $6.8 million). The next largest was for over $2 billion in a Roundup case (cancer allegedly caused by weed killer) in California.

So, the challenge with nuclear verdicts is not just about industry impact, but more about the impact an individual verdict can have on a business, insurer or individual. Additionally, the challenge is about the influence (including social inflation) these extreme awards have on other juries, who have become accustomed to hearing large award figures in the media and have had their perceptions changed.

See also: 5 Liability Loss Mega Trends

Many verdicts are reduced after trial by a court or by the parties through settlement negotiations. In addition, some jurisdictions have punitive damage caps or non-economic damage caps that can also come into play in reducing jury awards. Regardless, when the judgments are reported, often by eye-catching media stories, the damage may be done. It is the rare case where a reduction in a jury award will be front-page news.

In the report from the Institute for Legal Reform titled “Costs and Compensation of the U.S. Tort System,” the authors found that total costs and compensation paid in the U.S. tort system were $429 billion, or 2.3% of U.S. gross domestic product (GDP). Of this amount, 57% went to plaintiffs, with the balance being the cost of litigation, insurance and other risk transfer costs

Of the $429 billion:

  • $250 billion (58%) is attributable to commercial and general liability exposures;
  • $160 billion (37%) to auto exposures; and,
  • $19 billion (4%) to medical malpractice litigation exposures.

Florida had the highest costs as a percentage of GDP (3.6%). When measured as the cost per household, the states with the highest costs (California, Florida, New York and New Jersey) were greater than $4,000 per household (versus $2,000 for the lowest-cost states).

The Institute for Legal Reform conducted a survey of over 1,300 general counsel/senior litigators, who ranked these elements as the most significant indicators of the litigation environment in states:

  • Enforcing meaningful venue requirements;
  • Overall treatment of tort and contract litigation;
  • Treatment of class action suits and mass tort claims;
  • Consolidation suits;
  • Damages arguments;
  • Proportional discovery;
  • Effective use of scientific and technical evidence;
  • Trial judges’ impartiality;
  • Trial judges’ competence;
  • Juries’ fairness; and,
  • Quality of appellate review.

Additional Analysis

Not only are the loss cost and expense for litigated claims larger than non-litigated, as anticipated, the incurred amount for both damages and expense for litigated claims has been trending up for several years. This contrasts with the incurred trend for non-litigated claims, which has been on the decline in recent years for AU and GL. So, not only are litigated claims more expensive than non-litigated, they continue to get more expensive relative to incurred costs for non-litigated claims from previous years.

Figures 8 and 9 show increase in cost by % for each of the categories noted.

Figure 8
Figure 9

Influences

Social inflation, nuclear verdicts, trucking accidents, “reptile brain” and litigation funding are among the more common topics frequently discussed as drivers of current litigation trends. Industry trends are notoriously difficult to predict, given the lack of broad, readily available and consistent data across various jurisdictions, industries, lines of business and carriers.

Without a doubt, litigation has a measurable impact on overall claim outcomes. As already noted, litigation rates generally increase the longer claims are open. Not only are litigated claims more expensive than non-litigated, they continue to get more expensive when measured by incurred costs compared with previous years. Additionally, the duration of both AU and GL litigated claims substantially exceeds non-litigated claims, including the likelihood of adverse reserve development over time for litigated claims. As a result, the industry focus on avoiding and mitigating litigation
is appropriate, particularly because the trend of costly litigation
is accelerating across calendar years. The largest verdicts and settlements continue to represent a small percentage of the total claim volume, yet they also continue to have a significant impact on overall results.

Companies have a number of tools they can use to control litigation and avoid high-liability verdicts. The focus should be on resolving claims at an earlier date, particularly in the first 12 months of a claim. The risk and cost of litigation both increase dramatically thereafter. Use predictive modeling to identify claims likely to become litigated and ensure an aggressive workflow to push for defense and resolution if appropriate. Recognition by claims professionals of the risks and red flags for outlier verdicts is critical to ensure that defense counsel is prepared to manage these risks and to move cases through trial when necessary.

Because nuclear verdicts are so few and can happen anywhere, the ability to predict them remains challenging. Thus, the focus should remain on sound litigation avoidance tactics, proven litigation management tools and strong preparation for trial.

Emerging tactics and best practices for litigation

There are a variety of factors, strategies and tactics that can affect the exposure to outsized or unexpected results in civil litigation, as well as improve the outcomes of more routine litigation.

  1. Attorney selection — To have an effective settlement strategy, it is critical that counsel be willing and able to try cases. Use of data-based attorney scorecards and evaluations helps identify the best attorneys for various types of cases. Anecdotal opinions about counsel are not adequate for this challenging litigation environment—the data is critical to identifying the best counsel for each claim.
  2. Leveraging artificial intelligence (AI) and predictive analytics — The best way to avoid the risk of nuclear verdicts is to avoid unnecessary litigation. Using data to identify claims likely to end up in litigation and to focus early on those claims for settlement is a key to reducing litigation costs and risk.
  3. Attitudes toward corporations — One of the growing challenges with litigation is an increasingly negative perception of corporate defendants among some jurors. Millennials in particular are often identified as holding unfavorable views of these defendants. This must be accounted for not just in jury selection but throughout the life of the claim. Also, it is important at trial to ensure that corporate defendants have a “human face” either through witnesses or presence of a corporate representative throughout trial.
  4. Mitigating the “reptile brain” tactic — There is debate among defense counsel about whether this is in fact a new or exceptional concern. It is not a new theory — but does seem to have the focus of at least some plaintiff attorneys. The tactic is really about fear and using it to create a reaction in the jury. Identifying those plaintiffs’ attorneys that are planning on using this approach (this will often be apparent from discovery) and planning accordingly is critical.
  5. Mitigating anchoring tactics — “Anchoring” occurs when an individual depends on an initial piece of information to make subsequent judgments. This tactic can result in large awards based on a large damage number presented by plaintiff. It is worth considering whether it is appropriate for the defense to talk about the actual amount of damages at trial rather than try to defend against plaintiff’s number. This strategy is controversial, however, and it should be approached cautiously given the risk of a “split-the- difference” outcome.
  6. Mitigating “third party funding” tactics — This is an increasing trend in litigation in the U.S. and seems to be exacerbating the trend of larger verdicts. Some jurisdictions and courts have begun to allow discovery into these funding relationships, and defense counsel should be exploring that thoroughly when allowed.
  7. Case evaluation — One thing that seems to have clearly changed since the advent of the “social inflation” phenomenon is that the likelihood of a better outcome later in the life of a claim in terms of total cost has decreased. The days of a favorable settlement at the 11th hour seem to be the exception now. As a result, it is critical to have an early and thorough understanding of the case and its value.
  8. Settlement approach — The obvious and effective way to manage litigation costs is to avoid them. As noted above, it is critical to be prepared to try cases. However, it is just as critical to identify and resolve the cases that should not or need not be tried. The key is not to change how you handle cases, but how you think about them and to create a cost/benefit analysis of trial. This requires not only an appropriate case evaluation but an honest evaluation of the related issues. Key questions should include:
    • How long does it take to get a trial date in the jurisdiction?
    • How long do trials typically last?
    • How much will trial itself cost?
    • What pre- or post-judgment interest might attach to a verdict that might be appealed?
    • What are the other costs to the defendant, including business interruption, reputation, etc.?
    • Win or lose, what is the likely cost of appeals or additional negotiations if needed?
    • Is it likely a party will continue to litigate after a verdict?
    • Will there likely be attempts to impose a cap on damages or have it removed?

See also: COVID-19 Highlights Gaps, Opportunities

Summary

The bottom line is that some cases are appropriate for trial, and some are not. With the risk of nuclear verdicts, some that seem to shock even seasoned litigators, until there’s a clear understanding of what verdicts are likely to go “nuclear” it is prudent to have a plan in place to limit litigation only to those claims that should be litigated to verdict.

To free time to focus litigation efforts on cases that will go to trial, claims teams must improve their ability to identify cases for resolution and resolve them at the appropriate time. A case that gets to the eve of trial and settles then with no change in evidence or information is an outcome that should be avoided. That is a case that could have settled earlier.

Identifying cases to resolve requires focus by claims professionals as well as the effective use of data, predictive modeling, attorney scorecards and other tools. Timing is critical; once a claim has gone into litigation, even if the ultimate settlement amount is the same, the overall cost will increase due to litigation and defense costs.

In those cases that do go into litigation, a litigation plan must be developed and provided. Claim teams must take a direct hand. The “litigation plan” obviously must incorporate counsel’s evaluation of the claim, steps to take in the litigation process and, just as critically, a “resolution plan” to make sure that the discussion gets redirected back to conclusion—whether the case ultimately is tried or settled.

Throughout the litigation, the discussion of the claim should always include the resolution plan for those cases that should or could resolve. The resolution plan must have concrete steps, and not just follow an automatic path without a clear plan tailored to each case.

Risks associated with GL and AU claims can be managed to allow for predictable outcomes, even in an environment with “social inflation,” “nuclear verdicts” and tough jurisdictions. Numerous resources, tools and best practices are available to ensure that a very small percentage of claims do not drive oversized verdicts while ensuring an appropriate approach to dispute resolution.

The Need to Educate on General Liability

In a perfect world, insurance buyers would understand their products just as well their insurance agents. This would save a few headaches for everyone involved, and it would probably streamline the process on all ends. However, the reality is that most business owners don’t understand the extent of the insurance products they purchase. Then again, no one should expect them to.

Insurance products are highly complex vehicles. Few business owners have the time to invest in becoming experts in the field or in the products they purchase. Even the best insurance agents spend years learning about the products they sell, many of which change frequently as the economy changes.

That being said, no business owner should simply buy a product without understanding the most important aspects regarding what it does and does not cover. In truth, a highly skilled insurance agent should never let them, either. Here’s where there can be a gap between how much insurance a business purchases and how much it actually needs, showing why educating business owners on the extent of their insurance really matters.

False Perceptions of General Liability Are Common

Many customers tend to believe their insurance covers more than it actually does. This situation could probably be applied to any insurance product, but general liability policies are often the most frequently misunderstood by buyers.

See also: What to Expect on Management Liability  

To put it simply, far too many businesses are purchasing less insurance coverage than they should. In a sense, many are taking a huge gamble, believing their risk exposure is less than what it actually is or that their preventative measures, such as employee training, can shield them from those risks. While risk prevention definitely helps, it’s ultimately far from the bulletproof shield many companies think it is. Most companies do it to help themselves get a better rate on their insurance, while maintaining the false perception that their general liability coverage protects them against a multitude of risks not actually defined in the policy.

As a company scales in size, so, too, does its likelihood of experiencing losses related to cyber liability, employee fraud, fiduciary liability, directors and officers (D&O) or workplace violence. Yet many companies seem not to realize their exposure.

This would, of course, be less troubling if companies were purchasing policies that actually covered those kind of risks. Overwhelmingly, they’re choosing to avoid those insurance products altogether. According to Chubb’s survey on private company risk, non-purchasers believed their general liability policy covered:

  • Directors and Officers Liability (65%)
  • Employment Practices Liability (60%)
  • Errors & Omissions Liability (52%)
  • Fiduciary Liability (51%)
  • Cyber Liability (39%)

Businesses aren’t failing to purchase enough liability coverage because they’re unnecessary risk takers. Most, it seems, simply have false perceptions about what their general liability will and won’t do.

A small business may think its general liability policy covers a server hack. Yet, lo and behold, when a server gets hacked and the ensuing liability claims start pouring in, that small business may quickly find itself underwater. In fact, the U.S National Cyber Security Alliance found that the 60% of small companies went out of business within six months of a cyber attack. This seems extreme, but the average cost for a small business to clean up after a hack is $690,000, according to the Ponemon Institute. How many small- or medium-sized businesses can easily absorb that kind of cost without insurance coverage? Not many.

Similarly, mid-sized companies may believe their general liability policy covers directors and officers, leaving the company with unnecessary risk exposures should an incident occur. If, for example, a company begins operating internationally and fails to effectively meet one of the federal regulations governing its industry, a general liability policy won’t help protect the company from impending lawsuits. Any directors held personally responsible may find their own personal assets at risk. Given what we learned from the Chubb survey, it’s quite likely that most directors may think they’re fine with the minimal coverage they receive from a general liability policy. A costly mistake, to be sure.

Who’s to Blame?

We’ll leave the finger pointing aside for now and settle on this: The customer is always right, but he’s not always well-informed. As every insurance agent knows, the amount of time it takes to fully understand an insurance product can be extensive. Business owners, in general, lack the time to invest in fully understanding the products they purchase. It should come as no surprise, then, that misunderstandings arise over what general liability policies actually cover and what risks they simply won’t mitigate.

See also: ISO Form Changes Commercial General Liability  

Insurance agents have a responsibility to use their knowledge to help business owners better understand and sift through those misconceptions. More needs to be done to help decision-makers understand what they are and are not getting from their insurance.

Helping businesses better understand the ins and outs of their general liability policy is a win-win all around.

Has an International Cyber War Begun?

Cyber attacks were once on the periphery of American business consciousness. That mindset changed over the past two years. A series of devastating events, including the 2014 cyber attack against Sony, catapulted cyber liability concerns from an IT department issue to a major priority for boardrooms across America. As U.S. government officials concluded that North Korea was behind the attack, many C-suite executives suddenly found themselves asking questions. Is this the start of a cyber war? Could we be the next victim? If we are, how will it affect our operations and our bottom line? Do our insurance policies cover any of these costs?

g1

Today, many insurance buyers look to their cyber insurance policies to fill coverage gaps that often exist in other policies. For example, a property policy may respond to physical damage from a named peril, but it will likely exclude loss for non-tangible assets as a result of a cyber attack. Similarly, a commercial general liability policy will likely provide liability coverage for causing bodily injury because of negligence but exclude coverage for liability because of a failure to secure sensitive data from hackers.

Many policyholders may be unaware that some, though not all, of these cyber policies contain specific terrorism and war exclusions. As a result, gaps in cyber insurance coverage can exist in cases like the Sony breach, where government agencies, like the FBI, conclude that a foreign government or terrorist organization is responsible for the attack.

Is a Cyber Attack “Terrorism” or “War”?

Immediately following the Sony attack, President Obama referred to it by saying, “I don’t think it was an act of war . . . but cyber vandalism.” Then, on April 1, 2015, President Obama signed the Executive Order on Cybersecurity with the goal of protecting the private sector against hackers and thereby bolstering national security. The order seeks to identify and punish individuals behind attacks, but it could also lead some to categorize an apparent hacking event or act of cyber terrorism as an “act of war.”

Changes in government definitions trickle down into coverage disputes because many policies that exclude or include “war,” “terrorism” or “cyber terrorism” either fail to define those terms or define them by referring to standard government definitions.

Government Definitions of Terrorism, Cyber Terrorism and War

THE TERRORISM RISK INSURANCE ACT (TRIA)

“Act of terrorism” is defined as any act certified by the secretary of the Treasury in concurrence with the secretary of State and the attorney general of the U.S. to be:

» an act of terrorism

» a violent act or an act that is dangerous to human life, property or infrastructure

» an act resulting in damage within the United States or Outside (on a U.S.-flagged vessel, aircraft or U.S. mission)

» an act committed by an individual or individuals acting on behalf of any foreign person or foreign interest, as part of an effort to coerce the civilian population, U.S. policy or the U.S. government.

The secretary of the Treasury may not delegate his certification authority, and his decision to certify an act or not is not subject to judicial review.

DEPARTMENT OF DEFENSE (DOD)

The DOD defines “terrorism” as “the unlawful use of violence or threat of violence, often motivated by religious, political or other ideological beliefs, to instill fear and coerce governments or societies in pursuit of goals that are usually political.” The term “act of war” is understood to mean “a use of force [that may] invoke a state’s inherent right to lawful self-defense.”

DEPARTMENT OF JUSTICE (DOJ)/FEDERAL BUREAU OF INVESTIGATION (FBI)

The FBI defines “cyber terrorism” as “the premeditated, politically motivated attack against information, computer systems, computer programs and data [that] results in violence against non-combatant targets by subnational groups or clandestine agents.”

DEPARTMENT OF HOMELAND SECURITY (DHS)

The National Infrastructure Protection Center (NIPC), (formally a branch of DHS), defines “cyber terrorism” as “a criminal act perpetrated through computers resulting in violence, death and/or destruction and creating terror for the purpose of coercing a government to change its policies.”

Cyber Terrorism and the ‘Act of War’ Exclusion

Cyber policies are relatively new and manuscript products; as such, the wording varies significantly. Many policies contain a standard exclusion for “war, invasion, acts of foreign enemies, hostilities (whether war is declared or not), civil war, rebellion, revolution, insurrection, military or usurped power, confiscation, nationalization, requisition, or destruction of, or damage to, property by or under the order of any government, public or local authority…” An attack by the Taliban, for example, would probably fit within the exclusion as an act sponsored by a “public or local authority.”

Traditionally, war exclusions were relatively narrow; they required an actual war or, at the very least, “warlike operations”; “for there to be a ‘war,’ a sovereign or quasi-sovereign must engage in hostilities.” Pan Am. World Airways, Inc. v. Aetna Cas. & Sur. Co., 505 F.2d 989, 1005 (2d Cir. 1974) (finding that a Jordanian terrorist group that hijacked a plane was not a de facto government for the purposes of applying the war exception).

However, the events of Sept. 11, 2001, changed the way certain events and groups were perceived and classified, ultimately leading many to label the 2014 cyber attack on Sony an “act of war.”

Screen Shot 2015-12-22 at 1.53.07 PM

Litigation surrounding the Sept. 11 attacks led directly to an expanded view of the war exclusion. For one thing, the Second Circuit Court of Appeals ruled that the attacks were an “act of war.” In re Sept. 11 Litig., 931 F. Supp. 2d 496, 512 (S.D.N.Y. 2013), an owner of a building near the site of the World Trade Center attacks sought to recover cleanup and abatement expenses for removing pulverized dust that infiltrated into the owner’s building after the collapse of the Twin Towers. He sued under the Comprehensive Environmental Response, Compensation, and Liability Act [CERCLA], which allows strict liability claims in pollution cases, but the court applied CERCLA’s “act of war” exception to strict liability.

In concluding that the attacks were an act of war, the court commented that “Al Qaeda’s leadership declared war on the United States, and organized a sophisticated, coordinated, and well-financed set of attacks intended to bring down the leading commercial and political institutions of the United States,” id. at 509, and that “as we learned in the twentieth century, and as has been true throughout history, war can take on a formal structure of armies in contrasting uniforms confronting each other on battlefields, and war can persist for years, fought by irregular, insurgent forces and capable of causing extraordinary damage,” id. at 511.

This expansion of the legal definition of “act of war” to include acts by “irregular, insurgent forces and capable of causing extraordinary damage” could lead to attacks by hacktivist groups or foreign intelligence services being considered acts of war and therefore excluded from cyber policies.

Cyber Insurance and TRIA

The Terrorism Risk Insurance Act (TRIA) is a government program designed to provide a backstop for reinsurers in the event of large terrorism-related losses (more than $100 million). There is debate over whether TRIA applies to cyber policies at all. TRIA applies to commercial property and casualty insurance coverage, but some cyber policies are written as another line of coverage, such as professional liability, which is not included in TRIA.

Even assuming that TRIA would apply to cyber insurance, for TRIA coverage to be in effect, (1) there must be losses, resulting from property damage, exceeding $100 million; and (2) they must be caused by a certified terrorism event:

(1) Property Damage: For TRIA to apply, physical property damage must occur, and what constitutes “physical damage” in the context of a cyber attack remains an open question. What we do know is that TRIA will probably not cover business interruption or reductions in business income absent some physical loss or property damage. Many cyber attacks do not involve any physical damage, which would exclude TRIA coverage.

(2) A Certified Terrorism Event: For TRIA to apply to any event, the event would need to be certified as an act of terrorism. This onerous and political certification process requires the secretary of the Treasury, secretary of State and attorney general to agree that an incident was an “act of terrorism.” Many political and economic issues factor into certifying a terrorism event, which can lead to counterintuitive results. For instance, as of the date of this publication, the April 2013 Boston Marathon bombing has not been certified as a terrorist act.

Conclusion

To ensure coverage for cyber terrorism and cyber warfare, buyers of cyber insurance will need to seek out a cyber risk insurance policy that explicitly includes this coverage in the broadest terms possible. As more insurance carriers enter the cyber insurance market, one must be wary that policy terms will vary from one policy form to the next, and some will have coverage terms superior to others.

The Dangers Lurking for Health Insurers

Heathcare is changing, creating opportunities but also dangers. Here is where healthcare is changing and why you should care in the insurance industry.

Providers. The physician you once saw and had a relationship with is now maybe a physician assistant or a nurse practitioner. Healthcare has turned care over to “mid-levels” and concentrated physician time on revenue-intense practice like surgeries or high relative-value-unit (RVU) patients such as elderly, as a reaction to the pressure on revenue and proliferation of data, The coding needs to be high for a patient to get physican attention, and the low coders, the healthy, are attended by mid-levels.

A mid-level is paid only a fraction of a physician. Makes sense? Expect care to reflect the nuance of matching. The result will be variation in diagnoses in health benefit insurance and workers’ compensation.

Isn’t there better data now? Yes, but who has time as a caregiver to be giving it thought? The ACA has driven more people to buy insurance, but that means less time per office interaction. Hospitals have bought physician practices, which now face new effectiveness expectations such as referral level and relative value unit per caregiver.

Caregivers are under enormous pressure to produce at your expense. Who can question “do no harm”?

Insurance industry. If you are a medical malpractice insurer, how does higher-deductible health insurance affect you? How does higher premium for health insurance mean you are at higher risk in offering medical malpractice? Can data be working against you?

The onus of care is now on the patient, and the patient is relying on engagement and education from anywhere it can be found. Google and the Mayo Clinic have teamed up to help by presenting search results verified by suitable medical communities, but the patient is on her own under the direction of a healthcare practice that is inundated with new patients and lots of data she can’t get to. And don’t forget that the attention is now being guided away from your physician. The standard of care has not changed, but the frequency of visits has lowered, and the time for every visit has decreased. Less care, too much data, too much patient expense and the same expectations of medical care. Not a picture of profit in medical malpractice. Maybe time to raise the price?

Workers’ compensation will get hit with increase in frequency and severity as care is slid to less dependable providers. You get what you pay for. One miss is worth a thousand hits in health. Providers are seeing patients too briefly to be always trusted, and the data…the providers are not even looking at the data. They are too busy plugging in data to appropriately spend effort on what it means.

General liability is a scarier risk as more patients mean more chaos and more visitors to the facilities. Who is watching security when the waiting room is packed up? Who is shoveling the lot? By the way, a patient fall is either medical malp-practice or general liability. Forget the $1,200 annual GL premium. Think $2,000.

Cyber liability is a huge concern as hackers get more sophisticated and the stakes in stolen health profile skyrocket.

Insurers can be venture capital. VC has figured out that there is a ton of money in health, but do they know much about health and what it does for insurers? Aetna’s CarePass was a great idea that needs to go on. Insurers should get on board with funding innovation. The VC money is slow. Technology is a VC specialty, yet health desperately needs people in play who know health. Physicians generally are not greatly interested in innovation. A tremendous opportunity is here for insurance companies to innovate with technology. Silicon Valley and insurance could team up and solve lots of issues. Now that it Google is out there, it is a great innovator in insurance. The opportunity is to bridge technology and insurance acumen. But VCs like to invest in people they know, like technology folks, so a gap indeed exists. Just saying.

Patients. High deductibles and high premiums for health insurance, combined with busy caregiving and new technology to grasp, mean the patient has a place at the healthcare table, finally, but no one to help much. It is up to the patient to take care of the patient. And your caregiver is very busy now that everyone has some kind of insurance. What a time to be finally given a place at the table.

How long of a visit does a patient get with his provider? Is it enough to rightly ascertain what is going on with a patient? Is surgery really the solution? Does chiropractic seem all that bad, Mr. Insurer? Does the caregiver get managed by how many referrals it proffers? Does the patient need to call the caregiver every time there is a stuffy head? Waiting rooms are filled, and time with the caregiver is down. Having a place at the table should mean more.

Innovators. Lots of techies are going after health care. Do they know healthcare? Not as much as you would hope. The right approach is to find innovators who get insurance and health and then parse technology. Not the other way around. Innovators look for faster capital and more knowledgeable partnership.

Make the data personalized and simple, as even caregivers cannot find time to analyze data. Health has a consumer face today, and lots of people looking for care guidance. The consumers want it simple and mobile. Anybody think insurance could be an available partnership candidate?

Healthcare vertical recombination is a major opportunity in insurance. Are you ready to lead?

New AMA Classification Of Obesity: How It Affects Workers’ Compensation And Mandatory Reporting

On June 16, 2013, the American Medical Association voted to declare obesity a disease rather than a comorbidity factor. This change in classification will affect 78 million American Adults and 12 million children. The new status for obesity means that this is now considered a medical condition that requires treatment. In fact, a recent Duke University / RTI International / Centers for Disease Control and Prevention study estimates 42 percent of U.S. adults will become obese by 2030.

According to the Medical Dictionary, obesity has been defined as a weight at least 20% above the weight corresponding to the lowest death rate for individuals of a specific height, gender, and age (ideal weight). Twenty to forty percent over ideal weight is considered mildly obese; 40-100% over ideal weight is considered moderately obese; and 100% over ideal weight is considered severely, or morbidly, obese. More recent guidelines for obesity use a measurement called BMI (body mass index) which is the individual's weight divided by their height squared times 703. BMI over 30 is considered obese.

The World Health Organization further classifies BMIs of 30.00 or higher into one of three classes of obesity:

  • Obese class I = 30.00 to 34.99
  • Obese class II = 35.00 to 39.99
  • Obese class III = 40.00 or higher

People in obese class III are considered morbidly obese. According to a 2012 Gallup Poll, 3.6% of Americans were morbidly obese in 2012.

The decision to reclassify obesity gives doctors a greater obligation to discuss with patients their weight problem and how it's affecting their health while enabling them to get reimbursed to do so.

According to the Duke University study, obesity increases the healing times of fractures, strains and sprains, and complicates surgery. According to another Duke University study that looked at the records for work-related injuries:

  • Obese workers filed twice as many comp claims.
  • Obese workers had seven times higher medical costs.
  • Obese workers lost 13 times more days of work.
  • Body parts most prone to injury for obese individuals included lower extremities, wrists or hands, and the back. Most common injuries were slips and falls, and lifting.

The U.S. Department of Health and Human Services said the costs to U.S. businesses related to obesity exceed $13 billion each year.

Furthermore, a 2011 Gallup survey found that obese employees account for a disproportionately high number of missed workdays. Also earlier National Council on Compensation Insurance (NCCI) research of workers' compensation claims found that claimants with a comorbidity code indicating obesity experience medical costs that are a multiple of what is observed for comparable non-obese claimants. The NCCI study demonstrated that claimants with a comorbidity factor indicating obesity had five times longer indemnity duration than claimants that were not identified as obese.

Prior to June 16, 2013, the ICD code for comorbidity factors for obesity in workers' was ICD-9 code 278. This is related to obesity-related medical complications, as opposed to the condition of obesity. Now the new ICD codes will indicate a disease, or condition of obesity which needs to be medically addressed. How will this affect work-related injuries?

Instead of obesity being a comorbitity issue, it can now become a secondary claim. If injured workers gain weight due to medications they are placed on as a result of their work-related injury or if an injured worker gains weight since they cannot exercise or keep fit because of their work-related injury and their BMI exceeds 30, they are considered obese and are eligible for medical industrially related treatment. In fact, the American Disability Act Amendment of 2008 allows for a broader scope of protection and the classification of obesity as a disease means that an employer needs to be cognizant that if someone has been treated for this disease for over 6 months then they would be considered protected under the American Disability Act Amendment.

Consider yet another factor: with the advent of Mandatory Reporting (January 1, 2011) by CMS that is triggered by the diagnosis (diagnosis code), the new medical condition of obesity will further make the responsible party liable for this condition and all related conditions for work-related injuries and General Liability claims with no statute of limitations. It is vital to understand that, as of January 1, 2011, Medicare has mandated all work-related and general liability injuries be reported to CMS in an electronic format. This means that CMS has the mechanism to look back and identify work comp related medical care payments made by Medicare. This is a retroactive statute and ultimately, it will be the employer and/or insurance carrier that will be held accountable.

The carrier or employer could pay the future medical cost twice — once to the claimant at settlement and later when Medicare seeks reimbursement of the medical care they paid on behalf of the claimant. This is outside the MSA criteria. The cost of this plus the impact of the workers' compensation costs as well as ADAA issues for reclassification of obesity for an employer and carrier are incalculable.

The solution is baseline testing so that only claims that arise out of the course and scope of employment (AOECOE) are accepted. If a work-related claim is not AOECOE and can be proved by objective medical evidence such as a pre- and post-assessment and there is no change from the baseline, then not only is there no workers' compensation claim, there is no OSHA-recordable claim, and no mandatory reporting issue.

A proven example of a baseline test for musculoskeletal disorders (MSD) cases is the EFA-STM program. EFA-STM Program begins by providing baseline injury testing for existing employees and new hires. The data is only interpreted when and if there is a soft tissue claim. After a claim, the injured worker is required to undergo the post-loss testing. The subsequent comparison objectively demonstrates whether or not an acute injury exists. If there is a change from the baseline site specific treatment, recommendations are made for the AOECOE condition ensuring that the injured worker receives the best care possible.

Baseline programs such as the EFA-STM ensure that the employee and employer are protected and take the sting out of the new classification by the AMA for obesity.