CRYPTO COVERAGE CONUNDRUMS - SPECIAL REPORT RISK MANAGEMENT INNOVATION - Business Insurance
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ENVIRONMENTAL: Energy companies face cleanup liability challenge - PAGE 4
APRIL 2022
SPECIAL
REPORT
RISK
MANAGEMENT
INNOVATION
PAGE 24
CRYPTO
COVERAGE
CONUNDRUMS
Insurers offer protection
for some digital currency risks,
but remain wary of asset class
PAGE 21
There’s no loss needed to access our claims service. Our claims
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The information contained herein is for general informational purposes only and does not constitute an offer to sell or a solicitation of an offer to buy any product or service.
Any description set forth herein does not include all policy terms, conditions and exclusions. Please refer to the actual policy for complete details of coverage and exclusions.
BI’s parent Beacon buys Italian media group
B
eacon International Group, publisher of “Today, together with our important media special sector markets in 2022 and 2023.”
Business Insurance, acquired Italian insur- hubs based in Singapore, London, Amman, Paola delle Torre, founder and publisher of
PRESIDENT ance media group Insurance Connect, based Tampa, Greenwich and now Milan, Beacon and the Milan-based group, and Maria Rosa Alaggio,
Steve Acunto
(Greenwich)
in Milan. its 150 professionals serve the world’s leading editor in chief, will continue to lead the media
sa@businessinsurance.com Financial terms of the deal were not disclosed. insurance markets,” said Steve Acunto, chairman hub. Mauro Benedetti has been appointed to serve
The new Beacon subsidiary, Beacon Italia, of Beacon. as Beacon’s executive committee liaison to the
CHIEF OPERATING OFFICER
Stephen Acunto includes these titles: Insurance Trade, Insurance Milan office.
(Princeton) Connect, Societa e Rischio and IC TV. Mr. Acunto added: “From Milan, we will
stephen@businessinsurance.com Greenwich, Connecticut-based Beacon also ‘partner’ with Italian risk-focused professionals
PUBLISHER owns Commercial Risk (U.K.), Asia Insurance “Beacon media enjoy more than 1.2 million to serve the advancement of the business of risk
Keith Kenner Review (Singapore) and Middle East Insurance combined audited readers and visitors each transfer, risk financing and risk management, and
(Chicago) Review (Amman, Jordan), as well as U.S.-based month, and we look ahead to further expansion to serve the best interests of Italian commercial
kkenner@businessinsurance.com
Insurance Advocate and Workers Comp Central. in the U.K., the EU, South America and other and personal insurance buyers.”
EDITOR
Gavin Souter
(Chicago)
gsouter@businessinsurance.com
DEPUTY EDITOR
INSIDE
COVER STORY
Claire Wilkinson
(New York)
cwilkinson@businessinsurance.com
ASSISTANT EDITOR Cryptocurrency is booming globally, but insurers have been slow to offer coverage
Louise Esola for the digital assets. The reasons for their wariness include price volatility, the lack of
(New Orleans)
historical underwriting data, regulatory uncertainty and cryptocurrency’s association
lesola@businessinsurance.com
with cybercrime. PAGE 21
NEWS EDITOR
John Obrecht
(Chicago)
jobrecht@businessinsurance.com SPECIAL REPORT: RISK MANAGEMENT INNOVATION
SENIOR REPORTER Corporations’ heightened awareness of climate risks is driving demand for analytics and
Judy Greenwald
technologies from insurers to reduce property losses. Meanwhile, another area seeing
(San Jose)
jgreenwald@businessinsurance.com increased technology uptake is commercial vehicle fleet management, as telematics
help lower incident frequencies. PAGES 24-29
REPORTER
Matthew Lerner
(New York)
mlerner@businessinsurance.com NEWS ANALYSIS COAL ASH COVERAGE
Companies with coal ash facilities should review their
REPORTER
FOR BREAKING NEWS insurance coverage amid growing EPA scrutiny. PAGE 4
Danielle Ling
(New York) COVERAGE, VISIT
dling@businessinsurance.com businessinsurance.com OPIOIDS IN COMP
COPY EDITOR Opioids continue to trend downward in comp treatment,
Brian Gaynor but new federal guidelines are prompting concerns. PAGE 10
(Portland)
bgaynor@businessinsurance.com
INTERNATIONAL
ART DIRECTOR
Norway’s sophisticated commercial insurance market is
Jeremy Werling
(Cincinnati) relatively large by international standards. PAGE 13
jwerling@businessinsurance.com
DIRECTOR OF RESEARCH,
PLANNING AND INSIGHTS
Andy Toh
PERSPECTIVES
(Chicago)
atoh@businessinsurance.com Under-reporting of values undermines
the property insurance market, write
VIEW FROM
MAJOR ACCOUNTS DIRECTOR -
NORTHEASTERN U.S. & INTERNATIONAL
Alexandra Glickman and Robby Kunz of THE TOP
Ron Kolgraf Arthur J. Gallagher & Co. PAGE 31
(Boston)
rkolgraf@businessinsurance.com GARY
HEAD OF SALES, EVENTS OFF BEAT BROWN
& REPRINT SALES MANAGER Tequila 512 sues
Susan Stilwill
Gary Brown has
(Nashville) LEGAL BRIEFS Kendall Jenner- spent more than 35
sstilwill@businessinsurance.com Recent court opinions PAGE 15 promoted Tequila 818, years at McLarens
claiming trademark and its predecessor
VICE PRESIDENT OF MARKETING
Brian McGann OPINIONS infringement. PAGE 34 companies and has
(Buffalo) Collaboration helps risk management; been CEO of the
bmcgann@businessinsurance.com ESG concerns rise PAGE 30 Atlanta-based loss
DIGITAL AD OPERATIONS MANAGER adjuster since 2016.
Jordan Kilty MARKET PULSE Mr. Brown, who started his career in London and was
(Raleigh)
Products, deals and more PAGE 32 based in several international locations before moving
jkilty@businessinsurance.com
to the United States 25 years ago, discusses changes in
DIGITAL MARKETING MANAGER PEOPLE the claims sector and McLarens’ strategy as risks grow
Jen Jonasson
(Chicago)
Insurance industry moves PAGE 33 increasingly complex. PAGE 16
jjonasson@businessinsurance.com
BUSINESS INSURANCE (ISSN 0007-6864) Vol. 56, No. 5, Copyright © 2022 by Business Insurance Holdings, Inc. is published monthly by Business Insurance Holdings, Inc., 1030 Lake Avenue,
SUBSCRIPTIONS & SINGLE COPY SALES Greenwich, CT 06831. Accounting, business, circulation and editorial offices: PO Box 1010, Greenwich, CT 06836. Email businessinsurance@omeda.com to subscribe or for customer service.
businessinsurance@omeda.com Periodicals postage is paid at Greenwich, CT. Printed in the USA. POSTMASTER: Send address changes to Business Insurance, PO Box 260, Lincolnshire, IL 60669.
BUSINESS INSURANCE APRIL 2022 3
NEWS ANALYSIS MINING
POLICIES FOR
COVERAGE
Coal industry on notice for cleanup P olicyholders can
take various steps to
increase their chances
of securing insurance
coverage for coal ash-related
BY CLAIRE WILKINSON liabilities, experts say.
cwilkinson@businessinsurance.com Dating the pollution, finding
historic insurance policies
C
ompanies with coal ash facilities should and providing timely notice of
review their insurance coverage as they alleged liability are important
face regulatory enforcement to safely considerations, said Robert
clean up and close the sites. D. Chesler, shareholder in
While pollution exclusions may be a barri- the Newark, New Jersey,
er to coverage for related coal ash liabilities, office of Anderson Kill P.C.
historic general liability insurance policies Companies should
and in some instances current environmental immediately look for their
policies may provide recourse, experts say. policies, and if they don’t
The U.S. Environmental Protection Agen- have them on hand talk
cy on Jan. 11 stepped up its actions to protect to their brokers or hire an
groundwater from coal ash contamination. insurance archaeologist who
The renewed regulatory focus followed the is trained to find old insurance
so-called CCR rule, introduced by the EPA policies, Mr. Chesler said.
in April 2015, that set out rules for the dis- “In one of my cases, an
posal of coal combustion residuals. insurance archaeologist just
One of the EPA’s requirements was that found all the policies from
linings be installed in coal-ash ponds. The 1974 to 1986,” he said.
CCR rule also established guidelines on The 1986 exclusion removed the “sudden insurable under a pollution legal liability Historical insurance
groundwater monitoring. and accidental” exception to the standard policy,” she said. information can be found
CCR, or coal ash, is a byproduct of burning pollution exclusion that had been introduced In general, if it’s a completely known con- in a variety of sources,
coal in coal-fired power plants. It contains in 1973. dition, putting a new pollution legal liabil- including internal and
contaminants such as mercury, cadmium and Current environmental liability policies ity policy in place to cover cleanup costs is external records, said Brian
arsenic that, without proper management, are another potential avenue of recourse, challenging, said Daniel Drennen, national Della Torre, vice president at
can pollute waterways, groundwater, drink- experts say. environmental practice leader at Amwins Insurance Archaeology Group
ing water and the air. When it’s a historic liability, typically pol- Group Inc. in Atlanta. in Rutherford, New Jersey.
There are around 500 unlined coal ash icyholders’ minds go directly to their occur- If a company has had an environmental Internal records related to
impoundments in the U.S., according to rence general liability policies issued prior policy in place for several years, depending the purchase of insurance
the EPA. to 1986, said Kimberly Mann, a senior vice on how it’s structured, there could potential- include financial records,
Utilities and other companies that have a president in the U.S. environmental practice ly be some coverage for first-party cleanup accounts payable and canceled
coal ash facility and are obligated under state at Marsh LLC in Philadelphia. costs, Mr. Drennen said. “Historically, I hav- checks, Mr. Della Torre said.
or federal law to close the site or otherwise en’t seen a ton of large energy companies If a company has gone
remediate groundwater should be review- investing in those policies. Many through a merger or
ing their historic insurance policies, said “The general liability policy provides tend to self-insure,” he said. acquisition, policy
Matthew Jeweler, partner in the Washing-
ton, D.C., office of Pillsbury Winthrop
coverage for property damage and Meanwhile, adverse development
covers, loss portfolio transfers or
records may be sub-
sumed into complex
Shaw Pittman LLP.
CCR liabilities related to impoundments
groundwater is property, and in legacy covers can help insurers
manage their long-tail exposures.
systems at a parent
company, he said.
and landfills that were in use decades ago
could be covered under commercial general
every state pollution of groundwater Insurers regularly undertake a
ground-up study so environmental
Outside sources
such as brokers or
liability policies issued prior to 1986, he said. is covered property damage.” reserves at individual companies and court records can lead to
“There’s a good argument for coverage,” across the industry may fluctuate every few outside counsel or law firms
Robert D. Chesler,
Mr. Jeweler said. years, said Brian O’Larte, director at A.M. that have the certificate of
Anderson Kill P.C.
Coal ash sites are considered potential Best Co. Inc. in Oldwick, New Jersey. insurance, Mr. Della Torre
sources of groundwater contamination, and Hartford Financial Services Group Inc., said. When records don’t exist,
many are old facilities that could trigger in its Feb. 4 fourth-quarter 2021 earnings interviews with people who
historic insurance policies, said Robert D. There is a robust environmental insurance call, reported adverse reserve development were involved in purchasing
Chesler, shareholder in the Newark, New market package currently that can provide of $155 million before tax for asbestos and the coverage are important.
Jersey, office of Anderson Kill P.C. “myriad environmental solutions for existing environmental, of which $49 million was for Because multiple policies
“We’re looking principally at property risks,” she said. environmental. could come into play for coal
damage in the form of groundwater contam- Pollution legal liability insurance may “For environmental, the reserve increase ash liabilities, it’s important to
ination. The general liability policy provides cover some of the remediation costs asso- was primarily due to the settlement of a locate and closely review each
coverage for property damage and ground- ciated with environmental property damage large legacy coal ash remediation claim, an specific policy, said Matthew
water is property, and in every state pollution arising from coal ash, for example. increase in legal defense costs and higher site Jeweler, partner in the
of groundwater is covered property damage,” From a remediation perspective, the poli- remediation costs,” Chief Financial Officer Washington office of Pillsbury
Mr. Chesler said. cies can cover currently unknown pre-exist- Beth Costello said during the call. Winthrop Shaw Pittman LLP.
However, pollution exclusion clauses are ing conditions, Ms. Mann said. In the case The $155 million reserve increase was cov- “Sometimes there are strict
a key consideration. In 1986, the insurance of a coal ash landfill, “if the contamination ered under a $1.5 billion aggregate excess of requirements on the timing
industry introduced an absolute pollution has migrated beyond the cells, whether in a loss reinsurance cover provided by National of things, when the pollution
exclusion into commercial general liability sudden storm incident or over many years, Indemnity Co., a subsidiary of Berkshire happened and how far it goes
policies, “so there’s no coverage under poli- and you had to remediate beyond the con- Hathaway Inc. that Hartford put in place back in time,” Mr. Jeweler said.
cies in effect after that date,” he said. tained landfill cells, that’s covered and very in 2016. Claire Wilkinson
4 APRIL 2022 BUSINESS INSURANCE
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NEWS ANALYSIS
Supreme court expected to favor business
in bias case, but likely effect of ruling unclear
BY JUDY GREENWALD ed,” said Christopher Jackson, a partner
jgreenwald@businessinsurance.com with Holland & Hart LLP in Denver.
Paul E. Starkman, a member of law
T
he U.S. Supreme Court is expected to firm Clark Hill PLC in Chicago, said,
rule in favor of a website designer who “My guess is they want to carve out a
wants to refuse to provide wedding- business rule exception” to LGBTQ anti-
related services to same-sex couples, say discrimination rules based on religious
many experts. persons’ right of free speech.
But the likely pro-business ruling in A ruling in Ms. Smith’s favor would have
303 Creative LLC; Lorie Smith v. Aubrey the most immediate impact in Colorado
Elenis could take several different forms, but would be a persuasive precedent in
and it remains unclear whether it will have other states that have similar laws, he said.
a significant practical effect on employers’ Such a ruling would create an issue
anti-discrimination policies. with respect to federal protection as
Littleton, Colorado-based Ms. Smith, well as with regard to states that have
who has not begun to offer wedding- anti-discrimination laws based on sexual
related services, had filed a “pre-enforce- orientation, Mr. Starkman said.
ment challenge” to Colorado’s Anti- Ruling in the plaintiff ’s favor would
Discrimination Act, enacted in 2008, which mean that business owners with religious
restricts the ability of businesses in the state ments, which have not yet been scheduled, One of the questions the case raises is views could “run their businesses in a way
to refuse to provide services based on a cus- are expected to be held later this year. whether Ms. Smith’s free speech rights that allows them not to service entire,
tomer’s sexual orientation. She is seeking The case is considered a follow-up to would be violated by compelling her to large categories of people based on their
permission to deny the services to same-sex the U.S. Supreme Court’s 2018 ruling in create a website for same-sex weddings, religious views,” said Ashley I. Kissinger,
couples because of her religious beliefs. Masterpiece Cakeshop Ltd. et al. v. Colorado said David S. Flugman, a partner with of counsel with Ballard Spahr LLP in
Civil Rights Commission et al., in which Selendy Gay Elsberg PLLC in New York. Boulder, Colorado.
“It’s hard to imagine this case it ruled in favor of a bakery owner who
refused to prepare a wedding cake for a
There are three likely ways the court
might rule, said Lisa A. McGlynn, a part-
However, “it’s hard to imagine this case
would require (employers) to change any-
would require (employers) same-sex couple.
The narrowly written and case-specific
ner with Fisher & Phillips LLP in Tampa,
Florida: Hold that the Colorado law is
thing, no matter what the outcome would
be,” said Nicholas J. Nelson, counsel with
to change anything, no matter Masterpiece ruling was based on com- constitutionally problematic, uphold the Faegre Drinker Biddle & Reath LLP in
ments made at the Colorado Civil Rights law or take more of a Masterpiece-like Minneapolis. Businesses are already com-
what the outcome would be.” Commission hearing, including one in procedural approach and rule there has pliant with nondiscrimination statutes,
which a commissioner reportedly dispar- been no harm yet because the business is he said.
Nicholas J. Nelson,
aged the bakery owner’s religious beliefs. not operational. With so many state and local laws
Faegre Drinker Biddle & Reath LLP
The Masterpiece ruling “avoided the Many believe the ruling will be in the already protecting the LGBTQ com-
direct question of whether or not business plaintiff ’s favor, given the six conservatives munity, “the impact of this, in reality, in
owners can deny goods and services under on the court. Since the 2018 ruling, Trump the workplace would be very, very small,”
In its July 2021 ruling in the case, the 10th anti-discrimination laws,” said Vincent appointee Brett Kavanaugh replaced cen- said Eric B. Meyer, a partner with Fish-
U.S. Circuit Court of Appeals in Denver M. Rizzo, a partner with Hinshaw & trist Anthony Kennedy and Amy Coney erBroyles LLP in Philadelphia.
affirmed a lower court ruling against Ms. Culbertson LLP in Chicago. Barrett, also a Trump appointee, replaced Reactions may be “state-specific,” Ms.
Smith. It ruled that the First Amendment’s Mr. Rizzo said that in its 303 Creative liberal Ruth Bader Ginsburg as associate McGlynn said. While some states may
guarantee of free speech “does not protect ruling the court will focus on “the more justices of the Supreme Court. react by seeking more LGBTQ protec-
Appellant’s proposed denial of services.” tailored question of how to address non- “The bigger question is, how will they tions, in others there may be legislation
The U.S. Supreme Court accepted the discrimination laws and the interaction get there, and how broad are the rights that that supports Ms. Smith’s position, and
case for review in February, and oral argu- with religious expression.” the court is likely to say need to be protect- the issue may be decided by federal law.
WEB DESIGNER SUES FOR APPROVAL TO BAR SAME-SEX WEDDING CUSTOMERS
W ebsite designer Lorie Smith is
seeking the U.S. Supreme Court’s
legal approval to run a wedding
services business she hasn’t yet started.
Her lawsuit is a “pre-enforcement
services to same-sex marriage couples.
303 Creative is a for-profit, graphic
and website design company, of
which Ms. Smith is the founder and
sole member owner, according to
as well as to create graphics or
websites for lesbian, gay, bisexual, or
transgender customers, the ruling said.
“Ms. Smith sincerely believes,
however, that same-sex marriage
publish a statement on her website
explaining her religious objections.
Ms. Smith is represented by the
Scottsdale, Arizona-based Alliance
Defending Freedom, which also
challenge” to Colorado’s Anti- the July 2021 ruling by the 10th conflicts with God’s will,” and represented baker Jack Phillips in
Discrimination Act, which prohibits U.S. Circuit Court of Appeals in while she intends to offer wedding Masterpiece Cakeshop Ltd. et al. v.
business discrimination based on sexual Denver in 303 Creative LLC; Lorie websites that celebrate opposite-sex Colorado Civil Rights Commission
orientation, and can lead to fines of $50 Smith v. Aubrey Elenis, et al. marriages, she does not plan to do et al., the earlier case based on
to $500 for each violation. Ms. Smith She is “willing to work with all people the same for same-sex marriages, Colorado’s Anti-Discrimination Act.
said she does not want to offer her regardless of sexual orientation,” the ruling said. She also plans to Judy Greenwald
6 APRIL 2022 BUSINESS INSURANCE
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NEWS ANALYSIS
States step up vocational comp coverage
BY DANIELLE LING for youth apprentices under the age of 18,
dling@businessinsurance.com said such coverage creates a pathway to
employment while minimizing employer
M
ore states are aiming to require work- liability risk.
ers compensation coverage for those “As we have had discussions with a lot
enrolled in career apprenticeships and of employers, there is concern about the
technical schools. fact that those kids — because they are
Most recently, Indiana, Oklahoma and kids, they’re juniors — potentially have
Wyoming sought to join states where this a negative impact on employers, comp,
coverage is required; California, Georgia, group insurance and/or liability,” Mr.
Kentucky, Maryland, Tennessee and Texas Behning said.
have passed legislation that calls on local Others say such training programs are
education agencies to provide workers at the heart of increasing workforce par-
compensation coverage for students ticipation.
participating in work-based learning,
according to the Atlanta-based Southern
Regional Education Board.
“One of the barriers to work-based
Safety educators and others familiar
with the legislative trend say such regu-
learning for secondary students is
lations help bridge a gap. Opposition to
legislation expanding workers compen-
employers’ concerns about workers
sation coverage generally comes down to compensation and liability in the
cost, as insuring inexperienced workers in
risky professions such as construction and event of an injury to a student.”
manufacturing is typically expensive. A insurance coverage proved to be a contin- “They also fall under our strict safety Mary Taylor,
good safety program can help quell fears ued barrier in putting students on the job guidelines,” she added. “We want to make Kentucky Department of Education
and potential claim activity, experts say. site,” Ms. Taylor said. sure that anybody that participates in the
To overcome the persistent placement program is able to do so safely — we want
“Workers comp will cover anyone issues and to better provide students with
career pathways into registered apprentice-
them to learn but we want them to return
home at the end of each day safely with “We don’t have enough trained indi-
that works for us, regardless ship programs, Ms. Taylor created a pro-
gram in partnership with staffing agency
no injuries.”
Adecco involves its human resources,
viduals to be employed in these profes-
sions,” said Georgi Popov, a professor
of what age they are.” The Adecco Group. Through the program, risk and legal departments to ensure it is in the safety sciences program at the
students are on Adecco’s payroll and are in compliance with child labor laws, Ms. University of Central Missouri in War-
Susan Shemanski,
covered by the company’s workers com- Shemanski said. “We basically want to rensburg and an advisor to the Amer-
The Adecco Group
pensation insurance. have a support system but also a system ican Society of Safety Professionals
“It’s a standard workers comp policy,” that holds the student accountable for and National Institute of Occupational
said Susan Shemanski, Lawrenceville, learning through this process,” she said. Safety and Health.
“One of the barriers to work-based Georgia-based vice president of risk man- Since partnering with Adecco, Ms. “If businesses don’t have trained person-
learning for secondary students is employ- agement at Adecco. “Workers comp will Shemanski said, the program has record- nel, more likely they will go to another state,
ers’ concerns about workers compensation cover anyone that works for us, regardless ed two minor injuries. or companies will lose bids on big jobs.”
and liability in the event of an injury to of what age they are.” Safety educators and risk advisers say Enforcing stronger safety practices has
a student,” said Mary Taylor, industry For students under the age of 18, hiring such emerging programs will help with helped manage worries over comp pre-
training and development specialist with and placement proved to be particularly the labor shortage and bridge the tal- mium costs, said Sathy Rajendran, an
the Kentucky Department of Education difficult, as insurers don’t let policyholders ent gap by educating and protecting the associate professor and program director
based in Frankfort. hire underage workers. Yet with Adecco as younger workforce in training. of the safety and health management pro-
When Kentucky was starting its pro- the employer of record, the Kentucky pro- In Indiana, Rep. Bob Behning, gram at Central Washington University
gram for tech-ready apprenticeships for gram was able to insure underage workers, co-sponsor of H.B. 1094, which would in Ellensburg.
careers “lack of workers compensation Ms. Taylor said. provide workers compensation insurance “The business and the students do well,
and premium goes down,” he said. “It’s a
win-win situation.”
Results mixed for work-based learner comp bills
“ We definitely want to make the
entrance into youth apprenticeships and
work study to be as risk-free as possible
L egislation providing workers
compensation coverage for work-
based learners made its way
through three state legislatures early
this year, with poor results for most.
insurance coverage for students
enrolled in a work-based learning
course by no later than Dec. 31, 2022.
Oklahoma’s H.B. 2384, introduced
in 2021, would provide the same
legislative session, yet its sponsor,
Rep. Kyle Hilbert, expects the issue
to be taken up again next year.
In Wyoming, H.B. 0239 sought to
broaden employment and apprenticeship
for employers so that they see this as a
potential pipeline for them as well as an
opportunity,” Mr. Behning said.
“The intent of it is so that the employer
can actually get a return on investment
In Indiana, H.B. 1094 passed in both the workers compensation coverage to opportunities, creating a workers from this youth,” he said. “They may lose
state House and Senate and was signed work-based learning employees and compensation policy program in which money in year one of the program, but by
into law on March 15. The law calls on apprentices, both paid and unpaid, student learners would be covered by year two, the productivity of this student
the state Department of Education to and included provisions on premium employers. The bill died in the Senate will exceed the cost, and it’s at lower cost
enter into an agreement with employers reductions of up to 5%. The bill died in March. than what they would have for an adult
to pay for workers compensation in committee hearings in this year’s Danielle Ling who is full-time employed.”
8 APRIL 2022 BUSINESS INSURANCE
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NEWS ANALYSIS PROLONGED
PAINKILLER
DEPENDENCY
Opioid use falls, but issues remain
STILL HARD
TO OVERCOME
BY LOUISE ESOLA
lesola@businessinsurance.com
L ong-term opioid use
in older workers
compensation claims
continue to be a problem.
“The opioids issue is going
W
hen the pandemic hit two years ago to be around for another
a years-long strategy in the workers decade and just because
compensation industry was controlling fewer are getting opioids
opioid prescriptions — a goal that has con- and fewer doses … that’s
tinued despite interruptions stemming from not consequential. What’s
COVID-19 claims and disruptions. consequential are the
Experts say opioids in new injured worker existing, older claims,” said
claims are continuing to trend downward, as Joe Paduda, Skaneateles,
state-mandated formularies, monitoring pro- New York-based principal
grams and other protocols appear to be work- for the comp consulting firm
ing to curb the long-term use of addictive pain Health Strategy Associates
medications. Yet emerging, adjusted federal LLC. “The legacy claims issue
guidelines, along with opioids in older claims, is a really difficult one.”
will be challenging. (See related story). after implementation, according to WCRI. a claim wasn’t hampered by the pandemic, “Are we getting all those
“Pain isn’t going away,” said Silvia Sacalis, For opioids alone, there was a 38% reduction in part because of telehealth. Other workers long-term users off opioids?
vice president of clinical services for pharmacy in prescriptions for injured workers between comp insurers and third-party administrators The answer is no,” said Dr.
benefit management company Healthesystems the fourth quarter of 2017 and the second have similar programs in place. Dwight Robertson, Pasadena,
LLC in Tampa, Florida. “We are headed in the quarter of 2018. The program at Employers calls for inter- California-based vice president
right direction in terms of continuing to focus Another study by WCRI, released last year, ventions after 30 days, involving both provider of managed care services and
on it … and ongoing vigilance is going to be found that other state policies had a hand in and patient, to reduce opioid prescriptions. national medical director for
important.” reducing opioids for injured workers. Prescrip- “That discussion resulted in us having 98% Employers Holdings Inc.
Workers comp opioid spending has declined tion drug monitoring programs — put in place of our claimants — new opioid users — off “When they have been on
more than 62% since 2016, according to data in the past five years — reduced the amount of opioids within 12 months, and 100% within them for 10 years it is very
collected in 2021 by Maggie Valley, North opioids prescribed by 12% in the first year of the second year,” Dr. Robertson said. “When hard” to eliminate opioids, he
Carolina-based consulting company Comp- implementation, and regulations limiting the COVID hit, we continued that.” said. “But we can reduce the
Pharma LLC, which also found that total duration of initial opioid prescriptions resulted Yet, the industry is now grappling with (morphine equivalent dose)
workers comp pharmacy costs have decreased in a 19% decrease in the amount of opioids in proposed U.S. Centers for Disease Control and bring it down to a better
by 38% over the past decade. workers compensation claims. and Prevention guidelines on opioid prescrib- level. That has happened.”
“All the policies that have gone into effect Yet “opioids remain the No. 1 as far as the ing, introduced in February, that some say Reema Hammoud,
over the past few years have contributed to most utilized therapeutic class for injured represent a step away from 2016 guidelines Southfield, Michigan-based
reducing opioids in our industry,” said Reema workers,” said Nikki Wilson, Omaha, Nebras- that drastically limited opioid prescribing by assistant vice president
Hammoud, Southfield, Michigan-based assis- ka-based director of clinical products for doctors who were fearful of ramifications. Pro- of clinical pharmacy for
tant vice president of clinical pharmacy for Mitchell Pharmacy Solutions, adding that ponents say the voluntary guidelines will put Sedgwick Claims Management
Sedgwick Claims Management Services Inc. “proactive intervention is still there” despite pain management back in the hands of phy- Services Inc., said stronger
“In general, everybody is doing what they are issues brought on by the pandemic. sicians, while critics say the recommendations prescriptions in long-term
supposed to do.” One such issue was regular access to pro- have the potential to create dependency issues claims are down thanks to
Preliminary data released by the Cambridge, viders, which Ms. Wilson and others said was among patients, which prompted the creation constant contact and state
Massachusetts-based Workers Compensation bridged with the emergence of telehealth. of the original 2016 guidelines. guidelines that call for
Research Institute at its annual conference “We learned things from the pandemic on “There’s still a concern on the part of provid- providers to document usage.
in March showed that formularies — lists of how to reach people beyond the traditional ers that we have gone too far with restricting “It’s not that the
prescription drugs approved for use by work- pathway of walking into a physician’s office,” opioids,” said Brian Allen, Salt Lake City-based medications are not allowed
ers with injuries, which are now in place in 17 she said. vice president of government affairs, pharmacy anymore, we just need proper
states — have been particularly effective, as Dr. Dwight Robertson, Pasadena, California- solutions, for Mitchell International Inc. documentation” she said. “If
most require multi-step utilization reviews for based vice president of managed care services Ms. Hammoud said the proposed guidelines there is proper documentation
most opioid prescriptions. and national medical director for comp insur- are problematic in that they are unclear on the and it is helping the patient,
In California, where a workers comp formu- er Employers Holdings Inc., said a program upper limits of opioid dosing. “In the 2016 they can get the medication.”
lary went into effect in 2018, per-claim drug started in 2017 that zeroes in on opioid guidelines, it was clear what the thresholds are Providers “have to do
utilization and payments fell “immediately” prescriptions at the 30-day mark following for opioid overdose. They are very blurry in their due diligence and
the new guidelines, almost like we are going show that they are re-
RX UTILIZATION IN CALIFORNIA POST-FORMULARY backwards.” assessing the injured worker,”
The new guidelines are the pendulum Ms. Hammoud said.
1.2
California Non-formulary states swinging back, Ms. Sacalis said, adding that Nikki Wilson, Omaha,
PER MEDICAL CLAIM
1.0 the shift is not a bad move and that a more Nebraska-based director of
NUMBER OF RX
0.8 patient-centered approach is better. clinical products at Mitchell
“We literally have gone too far the other way. Pharmacy Solutions, said
0.6
There are patients with pain that is not ade- being proactive on the legacy
0.4 quately managed,” she said. claims has been successful.
Formulary implemented Jan. 1, 2018 -33%
0.2 “You can use guidelines, analytics, but at the “There’s a lot of high touch
end, you have to figure out what is or is not on those older claims in
0.0
Q1 Q2 Q3 Q4 Q1 Q2 Q3 Q4 Q1 Q2 Q3 Q4 Q1 Q2 Q3 Q4 Q1 working for the patient,” she said. “You cannot terms of coming up with
2016 2017 2018 2019 2020 completely eradicate opioids, and it doesn’t resolutions,” she said.
Source: Workers Compensation Research Institute make sense to eradicate opioids.” Louise Esola
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NEWS ANALYSIS
Captives can play key role in ESG initiatives
BY GAVIN SOUTER In addition, captives can be used to fund
gsouter@businessinsurance.com
“The insurers want to make environmental remediation efforts, he said.
Sandvik AB used its captive to finance
TUCSON, Arizona — Captives can be used to
help formulate an organization’s environ-
sure that we play fair as a climate change risk assessment, said
Fredrik Finnman, head of group risk man-
mental, social and governance strategy and a company and that we do agement for the Stockholm-based engi-
provide funding for ESG efforts, a panel neering company.
of experts said. the right things, and that In addition, Sandvik has changed its asset
Attention to ESG issues can also help management policy for its captive to allow
captives secure reinsurance capacity, partic- we monitor who we do investments in green bonds, which are
ularly with European reinsurers, they said. financial instruments that support projects
“The biggest risk about ESG is ignor- business with. Also, do we that have a positive effect on the environ-
ing it,” said Michael Douglas, Newtown
Grant, Pennsylvania-based director of
follow trade sanctions.” ment, he said.
In addition, commercial directors and
business development for Aon PLC’s Fredrik Finnman, Sandvik officers liability and general liability insur-
captive management operations. ers in Europe are seeking significant-
Under pressure from regulators, investors, ly more information from policyholders
activists and others, corporations, partic- ance Association last year published a such as climate change risks; investments, about ESG risks, Mr. Finnman said.
ularly in Europe but also in the United framework for captives and insurers to including the ESG footprint of the invest- “The insurers want to make sure that we
States, must be seen to be working to address ESG risks, said James Stewart, ments; and reporting, to ensure that the play fair as a company and that we do the
identify and report what they are doing on Guernsey-based client services director captive board is comfortable that it has right things, and that we monitor who we
ESG initiatives, he said during a session at at Artex Risk Solutions, a unit of Arthur fulfilled its ESG reporting requirements. do business with,” he said. “Also, do we fol-
the Captive Insurance Companies Associ- J. Gallagher & Co. Captive boards and risk managers can low trade sanctions.”
ation international conference in Tucson The framework “acts as a handrail for use the framework to engage on ESG While U.S. insurers are less concerned
last month. licensed insurers to consider their opera- matters with the senior leadership of about ESG issues than European insurers
Captives, which are designed to solve tions, their own activities against the U.N. their organization and discuss whether a and reinsurers, captive surpluses can also
problems for their parent companies, are sustainable development goals,” he said. captive should cover any of the risks, Mr. be used for various environmental infra-
well-positioned to act as a focal point It addresses four aspects of captive oper- Stewart said. structure projects, such as installing solar
to identify ESG issues and implement ations: governance, making ESG consid- Reinsurers, who must meet their own panels on buildings, said Karen Hsi, pro-
and document a company’s strategy for erations part of routine strategic planning ESG requirements, will likely look favor- gram manager-captive insurance programs
addressing them, he said. for a captive; risks underwritten, including ably on captives that are addressing ESG for the University of California, office of
The Guernsey International Insur- understanding the impact of ESG risks, issues, Mr. Douglas said. the president, in Oakland, California.
Captive reviews help overcome creeping claims problems: Panel
TUCSON, Arizona — Businesses should general liability risks. By 1999, it was the system’s claims were handled by out- resources and a third-party administrator,
periodically review their captives to ensure expanded to cover enterprise risks for the side counsel. Mr. Blasio said.
they keep pace with changing exposures health care system and university and was “Emory was effectively using outside Other measures that captive owners
and claims trends, a panel of experts said. moved to the Cayman Islands, she said. counsel as a component of its claims man- should take include regularly reviewing
Failure to adapt can lead to significant The captive was profitable during agement process … at outside counsel rates,” policy forms, said Maryann McGivney,
losses, even for captives with long records the expansion, Ms. Klein said. In 2017, he said. Atlanta-based health care industry leader
of profitability, they said. however, claims began to escalate as jury In addition, Emory’s risk management at Willis Towers Watson PLC.
“It’s really important not to become awards increased and medical inflation information system was little more than “Make sure you are getting a good,
siloed and fall in love with your opera- accelerated. In 2018, the captive reported an incident management system, Mr. deep, honest policy review on a regular
tion. The world is changing out there,” an underwriting loss of $10 million, and Blasio said. basis,” she said. The review should include
said Robert Blasio, a Houston-based in 2019 the underwriting loss was $27 Emory also reserved early for potentially discussions on policy wordings during
managing director at Gallagher Specialty, million, she said. compensable events, which included any captive board meetings.
a unit of Gallagher Bassett Services Inc. “Our board requested that we solicit an incidents the organization thought might In particular, boards should review
He was speaking during a session at the external site review of our claims and risk lead to a claim, said Chad Wischmeyer, exclusions in the policies, Ms. McGivney
Captive Insurance Companies Associa- management functions,” Ms. Klein said. Atlanta-based managing partner for the said. Board members often raise concerns
tion’s international conference in Tucson Gallagher analyzed the operations, actuarial practice of Oliver Wyman, a unit about how exclusions affect new facili-
last month. including a review of the captive’s purpose. of Marsh & McLennan Cos. Inc. ties or operations that an organization’s
Emory Health, the health care system In addition, the TPA reviewed Emory’s Substantial reserves were put on the risk management department may not be
of Emory University in Atlanta, has seen litigation philosophy, Mr. Blasio said. potential claims, but only about 10% of aware of, she said.
substantial growth in its captive Clifton “That’s a question that anybody who is the events resulted in claims, he said. “It’s a good opportunity to get senior
Casualty Insurance Co. since it was a captive owner should be asking every By analyzing the reserving practices leaders to eyeball this stuff and let you
formed, said Shulamith Klein, chief risk year as you have your annual captive board and bringing in outside expertise, the know if there’s something you are miss-
officer for the university. meeting,” he said. risk management department was able to ing,” Ms. McGivney said.
The system has 11 hospitals, 2,800 Over the prior five years, Emory had show the finance department that there Going through the list of named
physicians, 34,000 employees and 6,000 begun to place a bigger emphasis on was another way to approach the process, insureds and additional insureds at a
medical students, she said. patient safety, which drew on resources Ms. Klein said. board meeting is also an effective way to
The captive was set up in Colorado in of the risk management department, Mr. After the review, Emory moved to a ensure that all risks are covered, she said.
1981 to insure medical professional and Blasio said. As a consequence, many of collaborative model that used internal Gavin Souter
12 APRIL 2022 BUSINESS INSURANCEINTERNATIONAL
PROFILE: NORWAY
MARKET
DEVELOPMENTS
Updated March 2022
■ The impact of the COVID-19
pandemic on the Norwegian
Despite its comparatively small population, Norway’s insurance market in 2020 was
26
insurance market is relatively large by international relatively mild, with insurers
standards; the nonlife market is sophisticated and reporting positive technical results
well-developed, with its domestic insurers offering a for the full year. Overall, the
broad range of products. The nonlife market is divided insurance industry experienced
into two main elements: domestic business, which is fewer claims than usual, with
essentially non-marine, and international business, premium income generally holding
including marine hull, energy, and protection and up well. As in other markets,
indemnity. Net earned premium income for nonlife business interruption coverage was
insurance in 2020 was NOK $75.11 billion ($8.79 not triggered, as there had been
billion), up 0.72% over 2019. The non-marine market no associated property damage.
is concentrated into four main companies: Gjensidige ■ In 2018, insurers decided that
Forsikring, Tryg Forsikring, If Skadeforsikring and remedial pricing action was
GLOBAL Fremtind Forsikring. Over the years, new companies required because of underlying
have tried to establish themselves in private lines and
P/C MARKET profitability issues, and they have
RANKING
niche areas to try to take market share from the larger AREA pushed through rate increases
125,021
insurers, but most have either closed relatively quickly across all market segments each
or been acquired by the main companies. year since. The market remained
hard in 2021, particularly for
MARKET SHARE PROPERTY
29.1%
financial lines such as cyber and
directors and officers liability.
square miles High costs for spare parts and
PA & HEALTH CARE
WRITTEN BY NONLIFE building materials mean auto
COMPANIES and property classes may see
12.6% increased rates this year.
■ Claims experience for natural perils
MARINE, POPULATION has been generally good over the
5.51
AVIATION & past five years. An exception was
TRANSIT a major landslide in Gjerdrum
AUTO
11.2% 31.4% on Dec. 30, 2020, that caused
about NOK 800 million ($93.62
million) in property damage.
MISC. million
■ Under a change in regulations
9.0% WORKERS that went into effect March 1,
COMPENSATION & 2020, COVID-19 with serious
LIABILITY EMPLOYERS LIABILITY complications is regarded
3.7% 2.8% as the basis for a workers
MARKET CONCENTRATION compensation claim. As a result,
78.7%
one insurer has withdrawn
MARKET GROWTH from writing this business.
In millions, U.S. dollars
Life Nonlife PA & Health ■ The acquisition of Royal & Sun
14,000 Alliance by Tryg and Intact
market share of top five insurers Financial Corp. on June 1, 2021,
12,000 prompted some significant changes
in the Nordic insurance market.
10,000 As a result, Tryg was to assume
ownership of RSA operations
8,000
Codan Forsikring in Norway and
6,000
2022 GDP CHANGE Trygg-Hansa in Sweden, with a
(PROJECTED) target date of April 1, 2022, for the
4.1%
4,000 full merger of both operations.
2,000
0
2013 2014 2015 2016 2017
Source: Axco Global Statistics/Industry Associations and Regulatory Bodies
COMPULSORY INSURANCE NONADMITTED INTERMEDIARIES MARKET PRACTICE
■ Auto third-party liability By law, insurers must be locally Local intermediaries are required There is nothing to prevent
licensed to carry on insurance to be locally licensed and are an insurance buyer from
■ Workers compensation
business in Norway. At the same allowed to place business with obtaining cover outside
(part private market, part state coverage)
time, there is nothing in the nonadmitted insurers. Brokers Norway on a nonadmitted
■ Professional liability for insurance brokers law to indicate that insurance involved in nonadmitted basis, but in practice most
■ Natural perils in property covers must be purchased from locally placements are not required to industrial/commercial risks
licensed insurers. Insurers from warn buyers that their insurer is are placed with local insurers.
■ Liability insurance against injury or damage European Economic Area states not subject to local supervision.
caused by aircraft operators (all EU member states, Iceland,
■ Shipowners liability against marine oil pollution Liechtenstein and Norway)
(financial guarantee or insurance) may provide insurance under Information provided by Axco.
freedom to provide services.
■ Railway operators liability (financial guarantee or insurance) For free trial access to
global insurance intelligence,
visit axcoinfo.com.
BUSINESS INSURANCE APRIL 2022 132022
event schedule
WORLD CAPTIVE FORUM
FEBRUARY 9-11 | MIAMI
CYBER SECURITY WEBINAR
MAY 25 | VIRTUAL
BREAK OUT AWARDS
JUNE 9 | CHICAGO
JUNE 23 | NEW YORK CITY
JUNE 30 | LOS ANGELES
LONG-TERM CARE CONFERENCE
JULY 21 | CHICAGO
DIVERSITY & INCLUSION CONFERENCE
TBA
INNOVATION AWARDS
SEPTEMBER 13 | NEW YORK CITY
NOMINATIONS MAR. 22 - MAY 13
U.S. INSURANCE AWARDS
SEPTEMBER 13 | NEW YORK CITY
NOMINATIONS MAY 3 - JUNE 27
CANNABIS & HEMP CONFERENCE
OCTOBER 20-21 | CHICAGO
WOMEN TO WATCH AWARDS & CONFERENCE (EMEA)
NOVEMBER 17 | LONDON
NOMINATIONS JUNE 7 - AUG. 1
WOMEN TO WATCH AWARDS & CONFERENCE (US)
DECEMBER 7-8 | NEW YORK CITY
NOMINATIONS JUNE 7 - AUG. 1
Event dates and formats are subject to change.
CONTACT US SUSAN STILWILL BI EVENTS TEAM #BI_Events
HEAD OF SALES - EVENTS events@businessinsurance.com *Event details subject to change
(312) 833-4099
sstilwill@businessinsurance.com
Ad Template.indd 6 2/24/22 4:58 PMLEGAL BRIEFS
ing in-person education instruction activ-
ities and services in exchange for tuition
and fees, according to the appellate ruling
coverage under their claims-made policies.
First Solar filed suit against the insur-
ers in October 2020, charging breach of
DOCKET
in Mark Shaffer et al. v. George Washington contract. Both insurers filed motions to
University et al; and Maaz Qureshi, et al. v. dismiss the case, and the Delaware Supe-
American University. rior Court ruled in the insurers’ favor in
However, it said, “we hold that Plain- June 2021.
tiffs’ complaints plausibly allege that the The en banc Delaware Supreme Court
Universities breached implied-in-fact also ruled in the insurers’ favor, albeit on
contracts for in-person education,” the different grounds. “The Superior Court APPELLATE COURT ISSUES
ruling said. found that the follow-on action was ‘fun- FIRST COVID BI RULING
These, “combined with the reasonable damentally identical’ to the first-filed The 4th U.S. Circuit Court of
inferences drawn from them suffice to action and therefore excluded them for Appeals, in its first decision on
Insurer must cover support their claims that the Universities
promised to provide in-person instruction
coverage under the later-issued polices,”
its ruling said.
the issue, joined its sister circuits
in ruling against a policyholder in
BIPA suit defense in exchange for Plaintiffs’ tuition pay-
ments,” it said in reversing the dismissal
The ruling said neither the Delaware
Supreme Court nor any other jurisdiction
a COVID-19 business interruption
case. The Richmond, Virginia-
n A federal district court ruled that a com- of the plaintiffs’ implied-in-fact-contract had adopted the “fundamentally identical” based court ruled against Uncork
mercial general liability policy’s employ- claims. standard, and that a “relatedness standard” and Create LLC, which operates
ment-related practices exclusion is not The ruling added that the universities should have been used in judging the case. art studios in Barboursville
applicable to a lawsuit filed against a grocer “will likely have compelling arguments to However, in affirming the lower court, and Charleston, West Virginia,
under the Illinois Biometric Information offer that the pandemic and resulting gov- the Supreme Court said that under either in a lawsuit filed against
Privacy Act and that an insurer is therefore ernment shutdown order discharged their standard, “the later-issued insurance pol- Cincinnati Insurance Co. seeking
obligated to cover defense costs. duties to perform these alleged promises. icies did not cover the follow-on action.” compensation for its COVID-19
Charlene Figueroa, a former employ- “However, because the Universities have business interruption losses.
ee of Itasca, Illinois-based Tony’s Finer
Foods Enterprises Inc., a 16-store grocery
not raised any such defense before this
court, we leave the issue to the District ADA suit reinstated DEPARTMENT OF LABOR
chain, sued the company in state court in
2018, charging that it used fingerprints for
Courts to resolve in the first instance.” in postpartum case SUES OPHTHALMOLOGIST
The U.S. Department of Labor filed
employees to clock in and out of work, in n A federal appeals court, in a divided suit against an ophthalmologist
violation of BIPA, according to the ruling opinion, reinstated an Americans with and his practice in Amsterdam,
by the U.S. District Court in Chicago in Disabilities Act lawsuit filed by a woman New York, for allegedly firing an
State Automobile Mutual Insurance Co. v. who was terminated after she sought employee who raised concerns
Tony’s Finer Foods Enterprises Inc. extended leave because of her postpartum about the practice’s response
Columbus, Ohio-based State Automo- depression. to state-mandated protocols to
bile filed suit in federal court seeking a Kelly Blanchet, who had been hired as protect employees from COVID-19
declaration it had no obligation to defend a direct sales representative for Stamford, and later filed complaints
Tony’s in the litigation because of an Connecticut-based Charter Communica- with state health officials. The
employment-related practices exclusion in tions LLC, took standard maternity leave, complaint alleges that between
its policy, and because it had received the short-term disability benefits and Family March and December 2020 the
claims notice 20 months after Tony’s had and Medical Leave Act benefits after giv- employee expressed concerns
been served with the lawsuit.
The ruling said the employment-relat- Delaware high court ing birth in July 2016, according to the
ruling by the 6th U.S. Circuit Court of
to a supervisor at Kwiat Eye
and Laser Surgery PLLC about
ed practices exclusion includes a “laundry
list” of targeted actions against an employ-
rules for AIG, Axa Appeals in Cincinnati in Kelly Blanchet v.
Charter Communications LLC.
the alleged lack of COVID-19
safety protocols, including mask-
ee and that it applies to practices “such as n The Delaware Supreme Court unani- She developed postpartum depression wearing and social distancing,
coercion, demotion, evaluation, reassign- mously affirmed a lower court ruling and and sought and was approved for extended according to a DOL statement.
ment, discipline, defamation, harassment, held that American International Group FMLA leave, short-term disability leave
humiliation, or discrimination directed at Inc. and Axa SA units were not obligat- and long-term disability leave that extend- TOKIO MARINE PREVAILS
that person.” ed to indemnify a solar energy company ed through Feb. 1, 2017, according to the IN D&O LITIGATION
“Using one’s finger to clock in and clock in directors and officers liability litigation ruling. She then sought additional leave. A federal appeals court ruled that
out is an awkward fit in that string, at under their claims-made coverage. Her doctor sent a letter stating she a Tokio Marine HCC unit does not
best,” the ruling said, noting that scanning Shareholders of Tempe, Arizona-based should be expected to return to work in have to compensate an opioid
one’s finger is not a disciplinary action. First Solar Inc. filed a class-action lawsuit April 2017. Ms. Blanchet was notified manufacturer for costs incurred in
in Arizona in 2012, charging the company in March 2017 that she was terminated association with subpoenas under
Court reinstates had misrepresented the reduction of its
manufacturing costs, among other alle-
effective to January 2017.
She sued the company in U.S. District
its directors and officers liability
coverage. Sola Beach, California-
COVID tuition cases gations, according to court papers in First
Solar Inc. v. National Union Fire Insurance
Court in Covington, Kentucky, charging
violation of the ADA, and the court
based Sentynl Therapeutics Inc.,
which markets two prescription
n The U.S. Court of Appeals for the Co. of Pittsburgh, PA and XL Specialty granted Charter summary judgment dis- opioid pain relievers, received
District of Columbia overturned lower Insurance Co. missing the case. subpoenas from the U.S. Attorney’s
court rulings and reinstated litigation In March 2014, a number of share- In reversing and remanding the case, Office for the District of New
filed by George Washington University holders opted out of that litigation and the majority of the three-judge appeals Jersey in 2018 and 2019 in
and American University students seek- filed a second suit alleging various defects court panel said, “At the time Blanchet conjunction with an investigation
ing tuition and fee refunds because of the and concealments by the company. Solar requested her accommodation, Charter of potential violations of federal
institutions’ COVID-19-related moves to agreed to pay $19 million to settle the case. had no reason to conclude that Blanchet’s law related to opioids, according
online classes. AIG unit National Union and Axa unit performance would deteriorate when she to the ruling by the 9th U.S. Circuit
The appeals court affirmed the dismissal XL Specialty denied coverage on the basis came back on her proposed return date.” Court of Appeals in San Francisco
of the claims made in separate lawsuits that the second suit was essentially identi- The judge who dissented said Ms. in Sentynl Therapeutics Inc. v.
that the Washington D.C. universities cal to the suit filed in 2012, and because the Blanchet failed to meet the definition of U.S. Specialty Insurance Co.
had breached “express” contracts promis- litigation was filed in 2013 there was no a “qualified individual” under the ADA.
BUSINESS INSURANCE APRIL 2022 15You can also read
