EYES ON THE PRIZE - Business Insurance

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EYES ON THE PRIZE - Business Insurance
COVID COVER: Despite setbacks, attorneys hopeful policyholders will win rulings - PAGE 6

                                                                             DECEMBER 2021

 SPECIAL REPORT
 INDUSTRY TRENDS
 + RISK MANAGEMENT
 EDUCATION
 PAGE 16

                                                              EYES
                                                               ON
                                                               THE
                                                              PRIZE
                                                           Profiles of female leaders
                                                        rising to the top in insurance,
                                                           setting the trend toward
                                                                 more diversity
                                                                   PAGE 20
EYES ON THE PRIZE - Business Insurance
PROMISE
TRUST               WHAT VALUES DRIVE YOUR SUCCESS?

PROTECT
                    We believe that core values drive success – that when ethics
                    and integrity are the foundation, we can weather any storm.
                    At Sompo International, our people are your people. We
                    promise to deliver on high standards and to be transparent
                    every step of the way. You can trust that when you approach
                    Sompo International that your world becomes our world.
                    We will face challenges alongside you and promise to protect
AT THE CENTER OF    what you stand for. The Sompo International ring is more than
                    a logo – it’s a symbol of our promise. That is why promise,
EVERYTHING WE DO.   trust and protect are at the center of everything we do.

                                                              www.sompo-intl.com
EYES ON THE PRIZE - Business Insurance
PRESIDENT
Steve Acunto
(Greenwich)                                                                                                                                                                           2021
                                                                                                                                                                                      WOMEN TO WATCH
sa@businessinsurance.com

CHIEF OPERATING OFFICER
Stephen Acunto
(Princeton)
stephen@businessinsurance.com                                                                                                                                                         Now in its 16th year, the
                                                                                                                                                                                      Business Insurance Women
PUBLISHER
Keith Kenner                                                                                                                                                                          to Watch program honors
(Chicago)                                                                                                                                                                             outstanding female executives
kkenner@businessinsurance.com
                                                                                                                                                                                      working across the globe in the
EDITOR
                                                                                                                                                                                      risk management and insurance
Gavin Souter
(Chicago)                                                                                                                                                                             sector. A common theme
gsouter@businessinsurance.com                                                                                                                                                         among this year’s honorees is
DEPUTY EDITOR                                                                                                                                                                         their dedication to mentoring
Claire Wilkinson
(New York)
                                                                                                                                                                                      and championing diversity
cwilkinson@businessinsurance.com                                                                                                                                                      and inclusion. PAGE 20
ASSISTANT EDITOR
Louise Esola
(New Orleans)
lesola@businessinsurance.com

                                                        INSIDE
SENIOR REPORTER
Judy Greenwald
(San Jose)
jgreenwald@businessinsurance.com

REPORTER

                                                                                                           SPECIAL REPORT: INSURANCE PROFESSIONALS
Matthew Lerner
(New York)
mlerner@businessinsurance.com

REPORTER
Danielle Ling
                                                                                                           Business Insurance’s annual diversity survey found insurance professionals’ average
(New York)                                                                                                 experience in the industry is 23.4 years. Meanwhile, risk management schools training
dling@businessinsurance.com                                                                                the next generation of professionals are increasing their focus on technology. PAGE 16
COPY CHIEF
John Obrecht
(Chicago)
jobrecht@businessinsurance.com
                                                                                                              NEWS ANALYSIS                        RISK MANAGEMENT
                                                                                                                                                   Higher rates in the turbulent aviation sector are attracting
COPY EDITOR
Brian Gaynor                                                                                                FOR BREAKING NEWS                      fresh capacity to the market. PAGE 4
(Portland)                                                                                                    COVERAGE, VISIT
bgaynor@businessinsurance.com
                                                                                                           businessinsurance.com                   WORKERS COMP
ART DIRECTOR
                                                                                                                                                   PTSD claims from private contractors who worked in war
Jeremy Werling
(Cincinnati)                                                                                                                                       zones are overwhelming claims operations. PAGE 10
jwerling@businessinsurance.com

DIRECTOR OF RESEARCH,                                                                                                                              INTERNATIONAL
PLANNING AND INSIGHTS
Andy Toh                                                                                                                                           Vietnam’s nonlife insurance market offers considerable
(Chicago)                                                                                                                                          room for expansion. PAGE 12
atoh@businessinsurance.com

MAJOR ACCOUNTS DIRECTOR -
NORTHEASTERN U.S. & INTERNATIONAL
Ron Kolgraf
                                                                                    PERSPECTIVES
(Boston)
rkolgraf@businessinsurance.com
                                                                                    Renewable energy interests should takes
                                                                                                                                                         VIEW FROM
MAJOR ACCOUNTS MANAGER
Louise Leopold
                                                                                    steps to mitigate natural catastrophe                                  THE TOP
(New York)                                                                          risks, write Melissa Marsh and Kristopher
lleopold@businessinsurance.com                                                      Williams of Axis Insurance. PAGE 53
HEAD OF SALES, EVENTS                                                                                                                              ROBERT L.
& REPRINT SALES MANAGER                                                                                                                            COHEN
Susan Stilwill
(Nashville)                                                                                               OFF BEAT                                 Robert L. Cohen,
sstilwill@businessinsurance.com
                                                                                                          Handshake, elbow                         chairman and CEO of
                                           LEGAL BRIEFS                                                                                            IMA Financial Group
VICE PRESIDENT OF MARKETING                                                                               bump or “greet from
Brian McGann                               Recent court opinions PAGE 13
                                                                                                          six feet”? For one U.K.                  Inc., has overseen
(Buffalo)
                                                                                                          law firm, it’s all in the                several significant
bmcgann@businessinsurance.com
                                           MARKET PULSE
DIGITAL AD OPERATIONS MANAGER                                                                             wrist. PAGE 55                           acquisitions this
                                           Products, deals and more PAGE 51
Jordan Kilty                                                                                                                                       year by the Denver-
(Raleigh)
                                                                                                                                                   based brokerage. The
jkilty@businessinsurance.com               OPINIONS
                                                                                                                                                   privately held company was created through the merger of
DIGITAL MARKETING MANAGER                  Cycling through insurance pricing;
                                                                                                                                                   three brokerages in Kansas in the 1970s with the concept
Jen Jonasson                               imposter syndrome live on. PAGE 52
(Chicago)                                                                                                                                          that it would offer clients claims and loss control services,
jjonasson@businessinsurance.com
                                                                                                                                                   in addition to insurance placements. Mr. Cohen, IMA CEO
MARKETING & EVENTS MANAGER
                                           PEOPLE
                                                                                                                                                   since 1998, discusses the company’s acquisitions strategy
Beth Wojdyla                               Insurance industry moves PAGE 54
(Chicago)                                                                                                                                          and the outlook for the market. PAGE 15
bwojdyla@businessinsurance.com

SUBSCRIPTIONS & SINGLE COPY SALES   BUSINESS INSURANCE (ISSN 0007-6864) Vol. 55, No. 13, Copyright © 2021 by Business Insurance Holdings, Inc. is published monthly by Business Insurance Holdings, Inc., 1030 Lake Avenue,
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954-449-0736                        Printed in the USA. POSTMASTER: Send address changes to Business Insurance at PO Box 1010, Greenwich, CT 06836.

                                                                                                                                                            BUSINESS INSURANCE                        DECEMBER 2021                 3
EYES ON THE PRIZE - Business Insurance
NEWS ANALYSIS

    Aviation renewal rates vary by region, airline
        BY CLAIRE WILKINSON                                                                                                                                  their premium base when airline expo-

                                                                                                                                                   Reuters
    cwilkinson@businessinsurance.com                                                                                                                         sures were down, have come under some
                                                                                                                                                             pressure, brokers say.

C
    ommercial airlines are experiencing an                                                                                                                     Whereas before insurers were perhaps
    uneven recovery out of the pandemic,                                                                                                                     seeking a minimum premium of 85% of
    and while the overall buying experi-                                                                                                                     the premium they quote, “now it’s going
ence has been more positive at this year’s                                                                                                                   to be some number less than that,” Mr.
insurance renewals, negotiations with                                                                                                                        Saunders said.
insurers have been variable.                                                                                                                                   While some insurers are still looking
  Ongoing challenges such as the lag in                                                                                                                      for minimum premiums, “in some cases
business and international travel com-                                                                                                                       brokers have successfully negotiated
pared with U.S. leisure travel, the risk                                                                                                                     maximums to counterbalance that,” Mr.
of a surge in COVID-19 infections, and                                                                                                                       Trotti said.
recent hail losses to aircraft parked on the                                                                                                                   “There is some room for negotiation
ground, have affected individual airlines                                                                                                                    because each risk is unique,” he said.
differently, experts say.                                                                                                                                      From the liability perspective, there
  The airline industry globally is still                                                                                                                     hasn’t been a catastrophic accident of a
recovering from the huge drop in air trav-                                                                                                                   U.S. air carrier since 2009 and the imme-
el after the pandemic hit last year, said                                                                                                                    diate issues out there are “minor,” said
Garrett Hanrahan, Dallas-based global                                                                                                                        Mark McKinnon, partner at Fox Roth-
head of aviation at Marsh LLC.                    has a good record and growth baked into           Insurers may want rate increases, but                    schild LLP in Washington.
                                                  the renewal,” he said.                          they may struggle to achieve them because                    The potential for large-scale COVID-19
“If the market doesn’t continue                     However, insurers are looking at each
                                                  risk on a case-by-case basis. “No doubt
                                                                                                  the premium base will inflate due to the
                                                                                                  rebound in domestic passenger traffic,
                                                                                                                                                             liabilities for airlines — either from
                                                                                                                                                             passengers claiming they got sick on
to adjust pricing upward, at some                 about it, they are still focused on profit-
                                                  ability,” Mr. Trotti said.
                                                                                                  said Jason Saunders, Atlanta-based presi-
                                                                                                  dent of Willis Towers Watson Aerospace,
                                                                                                                                                             airplanes or suits from employees
                                                                                                                                                             claiming they got COVID on the job —
point underwriters are likely                       Jeff Bruno, Morris Plains, New Jer-           a unit of Willis Towers Watson PLC.                        has been “the dog that didn’t bark,” Mr.
                                                  sey-based president and chief underwrit-          In its Insurance Marketplace Realities                   McKinnon said.
to be playing catch-up again.”                    ing officer at insurer Global Aerospace         report published in November, Willis
Jeff Bruno, Global Aerospace Inc.
                                                  Inc., described this year’s renewals as “a
                                                  mixed bag.”
                                                                                                  predicted that airline rates would be flat
                                                                                                  to plus 10%. That compared with pre-
                                                                                                                                                             “You’re starting to see easing
                                                    “Exposures vary widely from risk to risk,
                                                  as do agreed minimum premiums, depos-
                                                                                                  dicted rate increases of 25% to 40% at the
                                                                                                  same time last year.
                                                                                                                                                             in rates, particularly if you have
  Through October, total airline seat             its, individual loss experience and audit         Another positive factor for buyers is that               (an airline) that has a good record
capacity was down nearly 40% this year            experience from prior periods,” he said.        fresh capacity is entering the market and
compared with 2019 and those rates fluc-            While most airlines in the U.S. seem to       established insurers are releasing more                    and growth baked into the renewal.”
tuate by region, Mr. Hanrahan said. “It’s         be trending rapidly toward 2019 passenger       capacity, potentially increasing competi-
                                                                                                                                                             Joe Trotti, McGill and Partners
all linked to COVID,” he said.                    levels or higher, insurers remain concerned     tion for business.
  Not only are insurers dealing with the          about hull claims inflation, social inflation     “More capacity makes the placement
variability in airline loss experience, but       — higher court awards and settlements —         easier. It also drives competition among
also exposures, said Joe Trotti, part-            and the market’s overall lack of profitabil-    the markets to drive the best price for the                  When there is a lack of demand it’s
ner-head of aviation and aerospace at             ity prior to the pandemic, Mr. Bruno said.      buyer,” Mr. Saunders said.                                 usually the less-efficient planes that get
McGill and Partners in New York.                    “The fear is if we find ourselves at or         Certain markets have expanded their                      put into storage, which serves to further
  Against the backdrop of rates being the         above 2019 exposures because of claims          lines and their ability to participate on air-             improve reliability, Mr. Trotti said.
highest they have been for some time and          inflation we’re likely to exceed 2019 loss      line risks, Mr. Hanrahan said. An insurer                    Potential interference with aircraft
benign loss activity “it’s attracting capac-      activity. If the market doesn’t continue        that only had 2.5% capacity in 2019 and                    electronics arising from the use of 5G
ity,” Mr. Trotti said.                            to adjust pricing upward, at some point         2020 might take 7.5% in 2021, he said.                     telecommunications technology is a lon-
  “You’re starting to see easing in rates,        underwriters are likely to be playing             Minimum premiums, which insurers                         ger-term liability concern on the horizon,
particularly if you have (an airline) that        catch-up again,” Mr. Bruno said.                applied at last year’s renewals to protect                 experts said.

                AIRLINES’ ENVIRONMENTAL EFFORTS YET TO AFFECT INSURANCE: EXPERTS

    I  nsurers are broadly supportive of
       airline sustainability efforts to reduce
       their carbon footprints, but this has
    yet to impact underwriting, experts say.
      Environmental, social and governance
                                                  partner with airlines to encourage
                                                  ESG efforts, Mr. Hanrahan said.
                                                    A bursary provided to airlines by
                                                  insurers could be allocated to some
                                                  sort of ESG opportunity around
                                                                                                  where you have markets exiting coal,
                                                                                                  for example. It’s nothing along those
                                                                                                  lines, but there is encouragement
                                                                                                  from the market to basically support
                                                                                                  that agenda,” Mr. Trotti said.
                                                                                                                                                        have yet to reach the point where
                                                                                                                                                        they would represent a “different
                                                                                                                                                        underwriting proposition,” he said.
                                                                                                                                                          ESG is top of mind for major airlines
                                                                                                                                                        but not yet a factor in underwriting
    considerations are being widely               carbon credits, for example, he said.             Jeff Bruno, Morris Plains, New Jersey-              due to the competitive nature of
    discussed but are not yet affecting             In some cases, insurance markets are          based president and chief underwriting                premiums, coverage terms, limits
    airlines from an insurance standpoint,        looking to support those airlines that          officer at insurer Global Aerospace                   and conditions, said Jason Saunders,
    said Garrett Hanrahan, Dallas-based           have an ESG agenda, said Joe Trotti,            Inc., said the insurer is “highly                     Atlanta-based president of Willis
    global head of aviation at Marsh LLC.         partner-head of aviation and aerospace          supportive of emerging technologies                   Towers Watson Aerospace, a unit
      In the future, ESG ratings will become      at McGill and Partners in New York.             and airlines’ approach to biofuels.”                  of Willis Towers Watson PLC.
    more important, and insurers could              “It’s not quite like the energy market          Initiatives like electric aircraft                                             Claire Wilkinson

4       DECEMBER 2021        BUSINESS INSURANCE
EYES ON THE PRIZE - Business Insurance
Congratulations
Alex Littlejohn!
A 2021 Women to
Watch Honoree
And congratulations to all the
2021 Women to Watch Honorees!

Alliant Insurance Services is the nation’s leading specialty broker. In the face of increasing
complexity, our approach is simple: hire the best people and invest extensively in the industries
and clients we serve. We operate through national platforms to all specialties. We draw upon
our resources from across the country, regardless of where the resource is located.

www.alliant.com | © 2021 Alliant Insurance Services, Inc. All rights reserved
EYES ON THE PRIZE - Business Insurance
NEWS ANALYSIS
                                                                                                                                                                                 DIRECT
                                                                                                                                                                                PHYSICAL

Policyholders fight on for COVID cover
          BY JUDY GREENWALD
                                                                                                                                                                              S
                                                                                                                                                                                LOSS KEY
                                                                                                                                                                                    ome observers believe
                                                                                                                                                                                    there is a roadmap
                                                                                                                                                                                    to policyholders’
                                                                                                                                                                              achieving greater success
    jgreenwald@businessinsurance.com                                                                                                                                          in COVID-19 business
                                                                                                                                                                              interruption litigation,

P
    olicyholder attorneys predict a more bal-                                                                                                                                 despite their relative
    anced picture of victories will eventually                                                                                                                                lack of success so far, if
    emerge in COVID-19-related business                                                                                                                                       plaintiffs focus on the
interruption litigation.                                                                                                                                                      issue of whether the virus
  To date, a large percentage of cases filed by                                                                                                                               causes direct physical
businesses seeking coverage for pandemic-                                                                                                                                     loss or damage from a
related closures have been dismissed, with                                                                                                                                    scientific perspective.
many of these rulings citing a lack of evidence                                                                                                                                  Scott Greenspan, senior
establishing that the virus caused “direct                                                                                                                                    counsel with Pillsbury
physical damage.”                                                                                                                                                             Winthrop Shaw Pittman
  Policyholder attorneys say many of the rul-                                                                                                                                 LLP in New York, pointed
ings issued so far reflect early cases that were                                                                                                                              to a statement in the
often filed by unsophisticated attorneys who                                                                                                                                  July 2 ruling by the 8th
mistakenly focused on the issue of govern-                                                                                                                                    U.S. Circuit Court of
ment-ordered shutdowns as the reason why                                                                                                                                      Appeals in St. Louis in
coverage should be granted, an argument courts                                                                                                                                Oral Surgeons P.C. v. the
generally considered unpersuasive.                                                                                                                                            Cincinnati Insurance
  They say better success is likely with more       policyholders’ winning percentages are better                     were sufficient to trigger coverage” and did not        Co., which said there
recent lawsuits that focus on scientific evidence   in state courts.                                                  allege the parties had the virus out of fear of trig-   must be direct physical
to persuade the courts that COVID-19 causes           There is general agreement that the litiga-                     gering virus exclusions, Mr. Walker-Bright said.        loss for coverage, but
physical damage.                                    tion’s ultimate outcome is likely to be a patch-                    Policyholder attorneys say indications in             “Oral Surgeons did not
  They also hold out hope of more success with      work of different rulings, although less lopsid-                  rulings already issued provide some confir-             allege any physical
upcoming rulings by state appellate courts,         edly in insurers’ favor than currently.                           mation that focusing on the physical damage             alteration of property.”
which they say tend to be more favorably              “Each case is dependent upon the facts of that                  COVID-19 allegedly causes may be a more                    The Oct. 1 ruling by
inclined toward policyholders.                      case, and I don’t know we’ve seen the best of                     effective approach. (See related story).                the 9th U.S. Circuit
                                                    those cases yet,” said Marshall Gilinsky, a share-                  Complaints that assert the virus’ presence on         Court of Appeals in San
“Each case is dependent upon the facts              holder with Anderson Kill P.C. in New York.
                                                      “You’re going to see some of the more sophis-
                                                                                                                      the premises and contend that it caused the
                                                                                                                      loss of functional use of the property will be
                                                                                                                                                                              Francisco in Mudpie Inc.
                                                                                                                                                                              v. Travelers Casualty
of that case, and I don’t know we’ve                ticated, fact-specific cases possibly gain some
                                                    traction in the coming months and even years,”
                                                                                                                      successful because “they fit squarely within a
                                                                                                                      60-year line of cases in the country that existed
                                                                                                                                                                              Insurance Co. of America
                                                                                                                                                                              repeated that sentence.
seen the best of those cases yet.”                  said K. James Sullivan, a policyholder attor-                     way before COVID” that says toxic, hazard-                 The 9th Circuit’s
                                                    ney with Calfee, Halter & Griswold LLP in                         ous or noxious substances in the air or on the          ruling the same day in
Marshall Gilinsky, Anderson Kill P.C.
                                                    Cleveland.                                                        premises create property damage, said Scott             Selane Products Inc. v.
                                                      In early pro-insurer rulings, the policyholders                 D. Greenspan, senior counsel with Pillsbury             Continental Casualty Co.
                                                    did not allege the virus’ existence on their                      Winthrop Shaw Pittman LLP in New York.                  cites the Mudpie ruling,
  The Ohio Supreme Court is expected to             premises, nor “that there was any kind of                           Policyholder attorneys are also optimistic a          stating the company
be the first state supreme court to rule on         physical impact or that the virus physically                      greater percentage of cases before state supreme        must allege “some
the issue, in Neuro-Communication Services          altered the premises,” said Paul Walker-Bright,                   courts will go policyholders’ way. They are the         direct physical loss of or
Inc., etc. v. The Cincinnati Insurance Co. An       counsel with Neal, Gerber & Eisenberg LLP                         courts “that set the law of their state, and            damage to” its property.
intermediate California appeals court ruled         in Chicago.                                                       federal courts are bound to follow it,” Mr.                The complaints that cite
against the policyholder in November.                 Instead, those cases “were based on the theory                  Gilinsky said.                                          scientific evidence as to
  Insurer attorney Lee Siegel, a member of          the government orders alone and by themselves                       Mr. Walker-Bright said, “We have yet to see           the virus’ presence on
Hurwitz & Fine PC in Melville, New York,                                                                              any state appellate court decisions on the issues,      the property “will be just
said, “The carrier side is, we believe that the                                                                       and we have yet to see any decisions by courts          fine,” Mr. Greenspan said.
decisions that have come down to date are                                                                             that have been squarely confronted with alle-              K. James Sullivan, a
correctly decided, and we are confident and                     STATE                            FEDERAL
                                                                                                                      gations of coronavirus on the premises, so that         policyholder attorney with
hopeful that the state supreme courts, as they                  COURT                             COURT               may be something to watch out for as these              Calfee, Halter & Griswold
look at it, will continue to determine there’s no                                                                     cases go forward.”                                      LLP in Cleveland, said,
coverage where there’s no physical loss.”                                                                               Cary B. Lerman, a policyholder attorney with          “It remains to be seen if
  As of late November, all eight federal appel-                                                                       Munger, Tolles & Olson LLP in Los Angeles,              those kinds of science-
late court rulings on the issue have been in                                                                          said he remains optimistic about the 9th Cir-           based, sophisticated
insurers’ favor: three by the 6th U.S. Circuit
                                                    MERITS RULINGS                                                    cuit, despite its rulings against policyholders in      cases, with policyholder
Court of Appeals in Cincinnati; three by the
                                                    ON MOTIONS                                        State Federal   three cases so far.                                     lawyers really dedicated”
9th Circuit in San Francisco; one by the 8th
                                                    TO DISMISS IN …
                                                    		                                                court court
                                                                                                                        “I wouldn’t be surprised if we got a panel on         to this area of law “are
Circuit in St. Louis; and one by the 11th              Motion denied                                      33    25    the 9th Circuit that went the other way,” which         starting to see traction.”
Circuit in Atlanta, with the remaining federal        	Full dismissal without prejudice                  10    52    would lead to an en banc consideration of the              It may be “too little
appeals courts yet to rule.                           	Full dismissal with prejudice                     99   435    issue by the entire court, he said.                     or too late because
  An additional 291 cases are pending, accord-                                                                          Mr. Walker-Bright said many past initial              snowballs roll downhill,
                                                      	Partial dismissal without prejudice 1                    2
ing to statistics gathered by the University of                                                                       lower court rulings on the issue of coverage for        as some argue … but
Pennsylvania Carey Law School.                        	Partial dismissal with prejudice                   5     7    sudden and accidental pollution initially were          it’s not impossible,”
  Both federal and state courts have ruled          Totals as of Nov. 22, 2021                                        also unfavorable to policyholders, but the trend        Mr. Sullivan said.
overwhelmingly in insurers’ favor, although         Source: University of Pennsylvania Carey Law School               changed over time.                                                  Judy Greenwald

6    DECEMBER 2021         BUSINESS INSURANCE
EYES ON THE PRIZE - Business Insurance
Celebrating Outstanding
Women Leaders
Congratulations to the winners of the 2021 Business Insurance Women to Watch
award, including Paradigm Senior Vice President & General Manager, Clinical
Solutions, Kathy Galia.

Passionate and inclusive leaders like Kathy are helping Paradigm build a
culture of diversity and innovation, while furthering our mission to achieve
better outcomes for injured individuals.

Thank you to all the 2021 honorees—your extraordinary work
moves our industry forward and improves more lives.

Learn more about Kathy’s impact on
Paradigm and the industry:
paradigmcorp.com/womentowatch21

© 2021 Paradigm. All rights reserved.
EYES ON THE PRIZE - Business Insurance
NEWS ANALYSIS

      Firms face tough call on vaccine exemptions
        BY JUDY GREENWALD
    jgreenwald@businessinsurance.com

C
    ontending that it poses an undue
    hardship to comply with a religious
    accommodation request to not have a
COVID-19 vaccination may be the most
effective way for companies to deal with
the deluge of such employee requests,
experts say.
  Such a move would be preferable to get-
ting into the quicksand of closely exploring
whether workers have “sincerely held” reli-
gious beliefs that would permit them to be
exempted from vaccinations, as required by
Title VII of the Civil Rights Act of 1964,
they say.
  In October, the U.S. Equal Employment
Opportunity Commission, which oversees
Title VII’s regulation, updated its guid-
ance on the issue of religious accommo-
dation with respect to COVID-19 vac-
cine mandates, which many employers are
introducing. The agency advised that while
employers should assume a request is valid,
they can make “a limited factual inquiry”
and seek additional supporting informa-
tion before granting it.                            violates their religious belief.                  issues related to religious garb or groom-       and safety and their sincerely held religious
  Some employees contend the vaccine                  Employers, however, are not obligated           ing, said Richard B. Cohen, a partner with       beliefs, said Michelle E. Phillips, a prin-
conflicts with the tenets of their orga-            under Title VII to comply with accom-             FisherBroyles LLP in New York.                   cipal with Jackson Lewis P.C. in White
nized faith or with their own individual            modation requests if they can establish it          The difference now is “people are scur-        Plains, New York.
beliefs. In some cases, for instance, employ-       would cause them undue hardship.                  rying around … looking for any way to              Experts say religious accommodation
ees assert the development of the vaccine             Possible accommodations include work-           not get” the vaccine if they oppose it, he       requests vary based on industry and region.
involved the use of fetal cell lines, which         ing from home, wearing a mask, social dis-        said. Experts note that documentation for        “We have some clients who have just been
                                                    tancing and frequent testing.                     employees to submit with their accommo-          deluged with the request for religious
                                                      A factor expected to influence accom-           dation requests is available on the web.         accommodation, and then we have others
“We have some clients who have                      modation requests is the ultimate fate of           Abuse of the accommodation “does an            who might get one or two,” said Robin E.
 just been deluged with the request                 the emergency temporary standard issued
                                                    by the Occupational Safety and Health
                                                                                                      injustice to those who truly have sincere-
                                                                                                      ly held beliefs,” said Barry A. Hartstein, a
                                                                                                                                                       Shea, a partner with Constangy, Brooks,
                                                                                                                                                       Smith & Prophete LLP in Winston-Sa-
 for religious accommodation,                       Administration in early November, which           shareholder with Littler Mendelson P.C.          lem, North Carolina.
                                                    requires employers with 100 or more               in Chicago.                                        Ms. Shea said such requests are probably
 and then we have others who                        employees to either mandate vaccinations            Mr. Hartstein said, “What we have seen         more likely to be made in North Carolina,
                                                    for their workforce or enforce weekly test-       is, literally, employees who are essentially     for example, where there is more anti-vax
 might get one or two.”                             ing. The standard faces numerous court            buying letters off the internet” that assert     sentiment generally and religion is more
Robin E. Shea,                                      challenges.                                       they have religious objections to vaccine        widely practiced, than in California.
Constangy, Brooks, Smith & Prophete LLP               Before the pandemic, people typically           mandates.                                          Paul E. Starkman, a member of law firm
                                                    sought religious exemption for matters              The situation has left employers grap-         Clark Hill PLC in Chicago, said in one case
                                                    such as not working on their sabbath or           pling with balancing employees’ health           an employer with 360 employees got more

                     HEALTH CARE WORKERS FILE SUIT OVER RELIGIOUS ACCOMMODATION

    L    itigation over the issue of religious
         accommodation with respect to
         COVID-19 vaccines includes the Nov.
    8 lawsuit filed by a group of current
    and former health care workers against
                                                    letter, according to the lawsuit filed in
                                                    U.S. District Court in Minneapolis in John
                                                    Collingham, M.D. et. al. v. City of Northfield,
                                                    d/b/a Northfield Hospital and Clinic, et. al.
                                                      The hospital “took the effective
                                                                                                      and failure to accommodate under the
                                                                                                      Americans with Disabilities Act and
                                                                                                      violations of state law. It seeks damages
                                                                                                      and to enjoin the defendants from further
                                                                                                      legal action.
                                                                                                                                                     employees who were put on unpaid leave
                                                                                                                                                     when they asked for either a religious or
                                                                                                                                                     medical exemption from receiving the
                                                                                                                                                     COVID-19 vaccine.
                                                                                                                                                       In its ruling, which is being appealed,
    Northfield Hospital and Clinic in Northfield,   position that any accommodation would               A hospital spokeswoman did not respond       the court said United had granted
    Minnesota, who had sought both religious        automatically constitute an undue burden,”        to a request for comment.                      about 80% of the requests for religious
    and medical exemptions.                         the lawsuit said.                                   Separately, in David Samrano et al.          exemptions and that plaintiffs had
      The plaintiffs contend that, with one           The suit charges the defendants with            v. United Airlines Inc., on Nov. 8 a U.S.      not established the airline’s actions
    exception, everyone who applied for a           discrimination under Title VII of the             District Court judge in Fort Worth, Texas,     constituted irreparable harm.
    religious exemption was denied in a form        Civil Rights Act of 1964, discrimination          denied the preliminary injunction sought by                                 Judy Greenwald

8     DECEMBER 2021         BUSINESS INSURANCE
EYES ON THE PRIZE - Business Insurance
“Even if, yesterday, someone                          The issue of religious beliefs is “a very dif-
                                                    ficult area for an employer to wade into,” said
                                                                                                              RELIGIOUS OBJECTIONS GUIDANCE
 doesn’t claim they have religious                  Gerald Maatman, a partner with Seyfarth
                                                    Shaw LLP in Chicago, and is harder than                 Guidance issued by the U.S. Equal Employment Opportunity Commission
 objections to being vaccinated, they               making a decision on the basis of whether the           regarding religious objections to COVID-19 vaccine mandates states:
                                                    accommodation would place an undue hard-
 can, overnight, have a conversion                  ship on its business.
                                                                                                              Employees
                                                                                                            n	             do not need to use any “magic words” in seeking a
                                                                                                                religious accommodation but only to notify the employer there is a
                                                      If there is a substantial number of workers
 and make such a claim.”                            seeking accommodation, “the employer may
                                                                                                                conflict between the vaccine requirement and their “sincerely held”
                                                                                                                religious beliefs.
Paul E. Starkman,                                   well have a basis for assuring a religious accom-
                                                    modation may be an undue hardship,” Mr.                   Employers
                                                                                                            n	             do not have to accept an employee’s assertion of a religious
Clark Hill PLC
                                                    Starkman said.                                              objection at face value and can make a “limited factual inquiry” as to
                                                      Ms. Thompson said, “Ultimately, the employer              the religious belief’s nature or sincerity.
                                                    needs to be able to document that they have               Employers
                                                                                                            n	            do not need to accommodate a religious objection if
than 60 requests for religious accommodations.      looked at the employee’s request, and considered            they can demonstrate it would pose an “undue hardship” on their
  Allyson K. Thompson, a partner with               factors that affect the business,” including the            operations by showing how much cost or disruption the employee’s
Kaufman Dolowich Voluck LLP in Los Ange-            cost and resources available for accommodation.             proposed accommodation would involve.
les said, “There has been a deluge of religious       Company procedures should be consistent and             Employers
                                                                                                            n	            that grant some requests do not have to grant all of
accommodation requests because this is the          tailored to the business. “Don’t just grab some-            them. It depends on the factual context. An employer can take into
easier request to make,” as medical or disability   thing from the internet,” she said. “Make sure it           consideration, for instance, the type of workplace, the nature of the
accommodations require documentation.               makes sense for the organization.”                          employee’s duties, the number of employees who are vaccinated,
  “It’s a problem because of the looseness” of        Litigation over the issue will depend on how              how many employees and nonemployees enter the workplace and the
what qualifies for religion under courts’ and the   employers respond, said Sara H. Jodka, a mem-               number of employees who need an accommodation.
EEOC’s interpretations, Mr. Starkman said.          ber of Dickinson Wright LLP in Columbus,
  “Even if, yesterday, someone doesn’t claim they                                                             Employers
                                                                                                            n	             are not obligated to provide the employee’s preferred
                                                    Ohio. She pointed to a lawsuit filed by United
have religious objections to being vaccinated,                                                                  religious accommodation if other accommodations are also effective in
                                                    Airlines Inc. employees who objected to being
they can, overnight, have a conversion and make                                                                 eliminating the religious conflict and do not cause an undue hardship.
                                                    placed on unpaid leave after they requested reli-
such a claim,” he said.                             gious or medical accommodations.                          Employers
                                                                                                            n	            can later reconsider their religious accommodations.
  “It might be an employee’s own, made-up,            The U.S. District Court in Fort Worth, Texas,             Employees’ religious beliefs can change as well as what constitutes an
completely nonsensical religion, but if the         last month denied their motion for a prelimi-               undue hardship for employers. But employers should discuss with the
employee’s genuine in their stated belief, then     nary injunction against the airline.                        employee any concerns they have about continuing accommodations
the employer has to engage in an accommo-             Companies that are sued can call on their                 before revoking them.
dation dialogue,” said Randi Winter, a partner      employment practice liability insurance to pro-         Source: U.S. Equal Employment Opportunity Commission
with Spencer Fane LLP in Minneapolis.               vide a defense, Mr. Maatman said.

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                                                                                                                                           BUSINESS INSURANCE       DECEMBER 2021          9
EYES ON THE PRIZE - Business Insurance
NEWS ANALYSIS

Coming home: Civilian contractor claims spike
         BY DANIELLE LING
     dling@businessinsurance.com
                                                                                                                                                  “There’s nothing in any of these
                                                                                                                                                  government contracts that mandates
A
     fter 20 years of conflict, many U.S.
     soldiers and civilian contractors have
     returned home from Afghanistan and
                                                                                                                                                  an employer properly train their
Iraq much different than when they first                                                                                                          contractors before exposing them
deployed. Psychological injuries are com-
mon in war zones, but a 2013 Rand Corp.                                                                                                           to the hazards of wartime risk.”
study found that civilian contractors suffer                                                                                                      David Barnett,
at a much greater rate.                                                                                                                           Barnett, Lerner, Karsen, Frankel & Castro PA
  At the time of the study, 25% of private
contractors showed post-traumatic stress
disorder symptoms, compared with only
11% of service members, and experts say                                                                                                           ment under the War Hazards Compensa-
these numbers are understated.                                                                                                                    tion Act, Mr. Richardson said.
  “They’re sent to a war zone and then                                                                                                              The COVID-19 pandemic has added
they’re subjected to these same expe-                                                                                                             to the delays. As doctors went virtual and
riences as trained soldiers, without the                                                                                                          court hearings were suspended, interfer-
background, without the exposures and                                                                                                             ence with medical treatment plans and the
training that the soldiers have, and the         managing partner of the firm.                    because others are pursuing.”                   hearing process halted claims processing.
consequences could be rather severe,”              From September 2020 to September                 Eric Richardson, senior client services         Mr. Richardson expects another spike
said Samuel Frankel, partner at Barnett,         2021, the number of workers comp claims          manager at Gallagher Bassett Services           in claims to come in the next year, advis-
Lerner, Karsen, Frankel & Castro PA in           filed by contractors topped 6,000 — equat-       Inc., based in Carlsbad, California, said       ing insurers to develop a contingency plan
Fort Lauderdale, Florida.                        ing to the total number of claims filed in the   many of the claims are submitted without        to handle the current backlog of claims as
                                                 previous three years combined, according to      medical evidence.                               more roll in.
“This process involves a significant             Mr. Frankel.
                                                   The influx of claims has overwhelmed
                                                                                                    “As the medical evidence does come in, it
                                                                                                  then has to be evaluated for the veracity of
                                                                                                                                                    “There are significant challenges for
                                                                                                                                                  managing these claims across the globe,”
amount of investigative work,                    claims operations, creating issues with
                                                 them being processed and paid by insurers.
                                                                                                  the conditions listed, and the credentials of
                                                                                                  the provider must also be verified,” he said.
                                                                                                                                                  he said, “including language barriers, cur-
                                                                                                                                                  rency exchange, medical treatment, injured
especially when the workers                        “A lot of it involves validity — making        Often, a second opinion is required, which      claimant transport and obtaining medical
                                                 sure the claims are valid — and just the         prolongs the claim and adds to costs.           records.”
are in foreign countries.”                       sheer numbers,” Mr. Frankel said. “We’re           “This process involves a significant            In addition to training their own staff or
                                                 talking about 20 years of wars … thou-           amount of investigative work, especially        working with a partner who specializes in
Eric Richardson,
                                                 sands and thousands of contractors from          when the workers are in foreign countries,”     Defense Base Act claims, insurers must be
Gallagher Bassett Services Inc.
                                                 all over the world now have to be processed      Mr. Richardson said.                            ready from a business continuity perspec-
                                                 and funneled through the U.S. Depart-              Claims handlers at Gallagher Bassett use      tive by planning for spikes in volume and
                                                 ment of Labor through the Defense Base           a network of investigative firms and field      adjusting their processes.
  The firm represents injured workers and        Act, which at the end of the day only has        nurses who collect evidence, he said.             “Keeping track of the volume of people
specializes in Defense Base Act claims —         about 40 judges.”                                  Tending to the needs of contractor            they have employed overseas; having risk
the workers compensation benefits for              Validating the claims is a necessary first     claimants, particularly for PTSD and            consultants around to give the insureds
civilians working outside the United States      step because there are profound “consis-         other mental injury claims, the third-party     advice on how to mitigate the risks,
on U.S. military bases.                          tencies” among them, causing suspicion           administrator will also try to find care to     wherever they happen to be; having ros-
  “There’s nothing in any of these govern-       among insurers and attorneys, Mr. Fran-          assist workers with recovery and a return       ters of personnel that you can cross train
ment contracts that mandates an employ-          kel said.                                        to a high quality of life.                      on short notice — anything it takes to
er properly train their contractors before         “Because of the commonality within a             Verifying the claims has a financial          rapidly ramp up and deal with a spike is
exposing them to the hazards of wartime          region, we have to make sure that it’s legit-    incentive also because legitimate claims are    what you should be prepared to do,” Mr.
risk,” said David Barnett, founding and          imate, and that it’s not being pursued just      typically reimbursable by the U.S. govern-      Richardson said.

     TIME LIMITS CAN COMPLICATE MENTAL INJURY CLAIMS

C   ivilian contractors returning
    home from war zones can find
    themselves in a similar battle with
mental injuries as soldiers. Verified
mental injuries are compensable but
                                               it could take “months or years” for
                                               full-blown post-traumatic stress
                                               disorder to manifest.
                                                 Researchers have also found that
                                               stigmas and misconceptions about
                                                                                             faced delays in treatment, there are still
                                                                                             ways to receive compensation after the
                                                                                             two-year compensability window has
                                                                                             expired, said Jon Robinson, attorney
                                                                                             at Strongpoint Law Firm in New York.
only for an allotted time.                     PTSD have compromised treatment.                “When that time delay occurs, mental
  Claimants have two years from                According to a Rand Corp. study, 70%          health professionals may assign the
the time they become aware of the              of symptomatic contractors did not            ‘delayed expression’ qualifier to the
connection between their illness and           seek treatment because they felt that         PTSD diagnosis,” he said, which can
their working conditions to file a             such a move would harm their careers.         help Defense Base Act claimants receive
compensable claim. But according to              For injured workers whose mental            workers compensation benefits.
the American Psychiatric Association,          injuries manifest later or for those who                                  Danielle Ling

10    DECEMBER 2021        BUSINESS INSURANCE
Ryan Specialty Congratulates Our Very Own

              Sarah Lin, RT Specialty
               Hui Yu, EmergIn Risk
                            &
all of the incredible women whose remarkable achievements and
             leadership have helped shape our industry.

                        ryansg.com
INTERNATIONAL

     PROFILE: VIETNAM
                                                                                                                                                                              MARKET
                                                                                                                                                                              DEVELOPMENTS
                                                                                                                                                                              Updated November 2021
                                                                                                                                                                              n	Vietnam ranked among the world’s
                                                                                                                                                                                most resilient economies in the
                                                                                                                                                                                face of the COVID-19 pandemic
                                          The nonlife insurance market in Vietnam is

       53
                                                                                                                                                                                in 2020, reporting real GDP
                                          characterized by extensive regulations prescribing
                                                                                                                                                                                growth of 2.9% — above both
                                          compulsory insurance. In most cases of mandatory
                                                                                                                                                                                external projections and the
                                          professional indemnity cover, no specific limits are
                                                                                                                                                                                performance of regional peers.
                                          imposed. Nevertheless, the compulsory insurance
                                                                                                                                                                                The country reported fewer
                                          feature has had the effect of boosting overall nonlife
                                                                                                                                                                                than 1,500 confirmed COVID-19
                                          market premium volume across a wide range of
                                                                                                                                                                                cases and only 35 deaths from
                                          lines of business. The principal drivers of nonlife
                                                                                                                                                                                the virus during the year.
                                          premium growth in recent years include increases
                                          in gross domestic product and associated industrial                                                                                 n	Generally the growth of
                                          and commercial activity, and the introduction of new                                                                                  construction, liability and marine
                                          forms of compulsory insurance and the expansion                                                                                       cargo business was sluggish
                                          of existing forms. There is still considerable room                                                                                   by historic standards last year
         GLOBAL                           for expansion of the nonlife market in Vietnam,                                                                                       due to the negative economic
       P/C MARKET                         and the country is seen as a destination of interest                                                                                  effects of the pandemic, which
        RANKING                           for foreign investment, due mainly to its history                            AREA                                                     particularly affected the tourism,

                                                                                                                       127,881
                                          of consistently high rates of GDP growth.                                                                                             transportation, construction,
                                                                                                                                                                                education and hospitality sectors.
                                                                                                                                                                              n	Some classes of business, such
          MARKET SHARE                                                       PROPERTY                                                                                           as directors and officers liability
                                                                               23.4%
                                                                                                                       square miles                                             and marine cargo, saw a clear
              SURETY, BONDS
                                                                                                                                                                                upward trend in premium rates
                & CREDITS
                                                                                                                                                                                in 2020 due to the harder
                   1.3%
                                                                                                                                                                                global reinsurance market.
           LIABILITY                                                                                                                                                          n	Work on a new insurance law
              2.2%                                                                                                                                                              is proceeding, with a number
                                                                                                                       POPULATION                                               of draft versions having been

                                                                                                                       102.8
            MARINE,                                                                                AUTO                                                                         presented to interested parties.
           AVIATION &                                                                              31.3%                                                                        It’s expected the new law will
            TRANSIT                                                                                                                                                             be implemented in 2022 or 2023
              11.6%                                                                                                                                                             and is likely to augment the use
                                                                                                                       million                                                  of actuarial services in all sectors
            PA & HEALTH CARE                                                                                                                                                    of the nonlife insurance market
           WRITTEN BY NONLIFE                                                                                                                                                   to support the transition to a
               COMPANIES                                                                                                                                                        risk-based supervision model.
                  30.2%
                                                                                                                                                                              n	The EU-Vietnam Free Trade
                                                                                                                                                                                Agreement went into effect
                                                                                                                       MARKET CONCENTRATION                                     on Aug. 1, 2020. Under this

                                                                                                                       57.23%
          MARKET GROWTH                                                                                                                                                         pact, Vietnam committed to
          In millions, U.S. dollars                                                                                                                                             substantially improving access to
                                                               Life          Nonlife      PA & Health
                                                                                                                                                                                EU companies in a broad range
            4,500
                                                                                                                                                                                of services, including insurance
            4,000                                                                                                      market share of top five insurers                        and reinsurance. The agreement
                                                                                                                                                                                permits EU companies to provide
            3,500
                                                                                                                                                                                retrocession services with
            3,000                                                                                                                                                               unrestricted market access.
            2,500                                                                                                                                                             n	On Jan. 1, 2021, Vietnam and
                                                                                                                                                                                the United Kingdom signed a
            2,000                                                                                                      2021 GDP CHANGE                                          trade pact that largely replicates
            1,500                                                                                                      (PROJECTED)                                              the terms of the EU-Vietnam

                                                                                                                       3.8%
                                                                                                                                                                                Free Trade Agreement.
            1,000
              500
                 0
                         2014              2015              2016             2017          2018
             Source: Axco Global Statistics/Industry Associations and Regulatory Bodies

                 COMPULSORY INSURANCE                                                                      NONADMITTED                     INTERMEDIARIES                     MARKET PRACTICE
                 n	Auto third-party liability.                n	Professional indemnity for               Nonadmitted insurance is        Foreign insurance brokers          There is nothing in the law requiring
                                                                  lawyers, architects and                  not permitted in Vietnam,       must be licensed to provide        special regulatory permission for
                 n	Workers compensation
                                                                  engineers, independent                   because the law provides        insurance services in their        a buyer or intermediary to place
                     (state scheme).
                                                                  auditors, and doctors and                that insurance must be          home country and have              insurance directly in a foreign
                 n	Professional indemnity                        medical practitioners.                   purchased from locally          written permission from the        market when such coverage
                     for insurance brokers                                                                 authorized insurers,            home regulator to provide          is not available in the local
                     and providers of auxiliary
                                                               n	Contractors third-party
                                                                                                           with some exceptions.           cross-border insurance             insurance market or there is no
                                                                  liability insurance.
                     insurance services, including                                                                                         services in Vietnam. They must     capacity to accommodate it.
                     consultancy, risk assessment,             n	Aviation third-party passenger                                           only transact such business
                     actuarial, loss assessment                   liability insurance and                                                  with insurers licensed to
                     and indemnity settlement.                    internationally recognized                                               operate in Vietnam.              Information provided by Axco.
                                                                  additional coverages for
                                                                  scheduled airlines.                                                                                           For free trial access to
                                                                                                                                                                            global insurance intelligence,
                                                                                                                                                                                 visit axcoinfo.com.

12   DECEMBER 2021          BUSINESS INSURANCE
LEGAL BRIEFS
                                                case involving a building that was sinking
                                                into the ground, based on a design exclu-
                                                sion in the insurer’s coverage.
                                                                                                  AIG unit National Union filed suit
                                                                                                in U.S. District Court in Denver seek-
                                                                                                ing a declaration it was not obligated to
                                                                                                                                                         DOCKET
                                                  Jowite Limited Partnership discovered         defend or indemnify Dish in the litigation
                                                a building it owns in Easton, Maryland,         under commercial umbrella policies it had
                                                which was constructed in the late 1980s,        issued to the network in 2003 and 2004.
                                                was sinking, according to the ruling by           The U.S. District Court ruled in AIG’s
                                                the 4th U.S. Circuit Court of Appeals in        favor, citing a 2018 ruling by the 10th Cir-
                                                Richmond, Virginia, in Jowite Limited           cuit in which it had ruled in favor of Dish’s
                                                Partnership v. Federal Insurance Co.            primary insurer, ACE American Insurance         JURY RULES FOR INSURER
                                                  After a construction company recom-           Co., in the same TCPA litigation.               IN COVID COVER CASE
                                                mended the building be demolished, Jow-           The district court’s ruling was upheld        In the first jury trial on the issue,
                                                ite filed a claim with Chubb unit Federal       by a three-judge appeals court panel,           a Kansas City, Missouri, jury
                                                Insurance seeking coverage for the dam-         which said the appellate court’s ruling in      issued a verdict in favor of an
                                                age caused to the building “due to ground       the ACE case “controls here.”                   insurer in a COVID-19 business
                                                settling,” the ruling said.                       “Under ACE, TCPA statutory damages            interruption lawsuit filed by a
                                                  After Federal denied the claim, citing        are uninsurable under Colorado law, and         restaurant chain. The U.S. District

Rare COVID BI win                               several policy exclusions, including defec-
                                                tive design and settling exclusions, Jowite
                                                                                                the National Union Policies do not cover
                                                                                                injunctive relief,” the ruling said. “Because
                                                                                                                                                Court jury issued 10 separate
                                                                                                                                                verdicts, for each of the units
gets rescinded                                  filed suit in the U.S. District Court in Bal-
                                                timore, which ruled in the insurer’s favor.
                                                                                                the Policies do not cover the relief sought
                                                                                                in the Telemarketing Complaint, Nation-
                                                                                                                                                of Overland Park, Kansas-based
                                                                                                                                                K.C. Hopps Ltd., in favor of the
n A relatively rare victory in policyhold-        The ruling was affirmed by a unan-            al Union had no duty to defend Dish in          Cincinnati Insurance Co. on
ers’ efforts to obtain COVID-19 business        imous three-judge appeals court panel.          the underlying suit,” it said.                  the chain’s breach of contract
interruption coverage was rescinded when        “While we conclude that the district court        “Alternatively, National Union had no         charges. This was only the
a federal district court withdrew its previ-    committed no reversible error in holding        duty to defend Dish in the underlying suit      second trial on the issue to be
ous favorable ruling in light of an appel-      that the design exclusion bars coverage         because the Telemarketing Complaint             held. Following a bench trial, a
late court decision.                            of Jowite’s claim, we also observe, with-       did not allege a covered injury,” the ruling    Louisiana state judge in February
  In January, the U.S. District Court           out deciding, that the result of this case      said, in affirming the lower court’s ruling.    ruled in favor of Lloyd’s of London
in Cleveland had refused to dismiss a           would be unchanged were we to review                                                            underwriters in a case filed by
COVID-19 business interruption law-
suit filed by Twinsburg, Ohio-based
                                                the district court’s application of the set-
                                                tling exclusion,” the ruling said.              Delayed payments                                a New Orleans restaurant.

Henderson Road Restaurant Systems
Inc. against Zurich American Insurance
                                                                                                case can proceed                                KEMPER SETTLEMENT
                                                                                                                                                GETS PRELIMINARY OK
Co. The court held in its ruling that the                                                       n A federal district court refused to dis-      A federal district judge in Chicago
insurer’s policy language was ambiguous                                                         miss contract breach charges filed by a         gave preliminary approval to a
and that a “microorganism” exclusion was                                                        credit reporting agency against Lloyd’s         class-action settlement valued at
applicable.                                                                                     underwriters and CFC Underwriting Ltd.          $17.6 million against Kemper Corp.
  However, on Sept. 22, a unanimous                                                             because of their alleged long delay in pay-     in connection with data breaches
three-judge appeals court panel affirmed                                                        ing its attorneys fees under its manage-        that occurred in late 2020 and
a lower court ruling by the U.S. District                                                       ment liability coverage.                        March 2021. According to court
Court in Cleveland in Santo’s Italian Café                                                        Princeton, New Jersey-based MicroBilt         papers, Kemper unit Infinity
LLC v. Acuity Insurance Co. and ruled that                                                      Corp. obtained a management liability           Insurance Co., an auto insurer,
Santosuossos, a Medina, Ohio, restau-                                                           policy from Lloyd’s and CFC Underwrit-          was the target of two separate
rant, had not established there was a                                                           ing in 2017 that provided for the payment       security incidents that accessed
direct physical loss or damage under the                                                        of legal fees, according to the ruling by       personal identifying information
terms of the policy issued by Sheboygan,                                                        the U.S. District Court in Trenton,             about 6.2 million of its employees
Wisconsin-based Acuity.                                                                         New Jersey, in MicroBilt Corp. v. Certain       and customers.
  On Sept. 29, the 6th Circuit vacated the                                                      Underwriters at Lloyd’s, London and CFC
court’s order granting summary judgment                                                         Underwriting Ltd.                               COMP CASE DISMISSAL
to Henderson and remanded the case —
Henderson Road Restaurant Systems Inc. v.       AIG not obligated                                 The lawsuit charged that the defen-
                                                                                                dants took at least 16 months to fully pay
                                                                                                                                                REVERSED ON APPEAL
                                                                                                                                                A tanning salon worker who
Zurich American Insurance Co. — back to
the district court for further proceedings
                                                to defend Dish                                  MicroBilt’s 2018 attorneys fees, which led
                                                                                                to counsel refusing to continue to repre-
                                                                                                                                                alleges she suffered a seizure
                                                                                                                                                after she was “verbally assaulted”
consistent with the Santo’s ruling.             n Citing its own ruling in a related case, a    sent the company, and created addition-         by her manager can continue
  Although plaintiffs in the case submitted     federal appeals court affirmed a lower court    al expenses associated with finding new         with her suit contending that her
a brief contending the Santo’s decision was     ruling and said an American Internation-        counsel. The insurer also allegedly took        employment was not covered
distinguishable from its case, the district     al Group Inc. unit had no obligation to         more than eight months to pay Micro-            by the exclusivity provisions of
court disagreed.                                defend or indemnify Dish Network LLC            Bilt’s 2019 attorneys fees. The lawsuit did     Texas workers compensation
  The 6th Circuit “has made clear that          in litigation filed against it by the United    not reveal how much in fees was involved.       law, a state appeals court
mere loss of use is insufficient to trigger     States and four states under the Telephone        The judge said in her ruling that she         ruled. In partially reversing
insurance coverage for ‘direct physical loss’   Consumer Protection Act.                        would not dismiss the case even though          a lower court ruling granting
of ‘property’ under the ordinary meaning          In 2009, the U.S. and California, Illi-       the policy did not include an express tim-      summary judgment to the salon
of these words,” it said in granting Zurich     nois, North Carolina and Ohio sued              ing requirement for reimbursement.              operators in Michelle Kaplowitz
summary judgment.                               Englewood, Colorado-based Dish alleg-             “Put simply, regardless of whether            v. Lone Star Tan GP LLC; LST
                                                ing its telemarketing practices violated        Defendants’ reimbursement for Plaintiff’s       Austin I Ltd et al., the Court

Chubb unit prevails                             the TCPA, according to the ruling by the
                                                10th U.S. Circuit Court of Appeals in
                                                                                                legal expense was required within a rea-
                                                                                                sonable amount of time or immediately
                                                                                                                                                of Appeals of Texas in Houston
                                                                                                                                                ruled that the employer had
in property dispute                             Denver in National Union Fire Insurance
                                                Co. of Pittsburgh v. Dish Network, LLC.
                                                                                                upon notice of the claims and attorney
                                                                                                invoices, these allegations are sufficient
                                                                                                                                                not proved that Ms. Kaplowitz
                                                                                                                                                was covered by a workers comp
n A federal appeals court affirmed a dis-         A $210 million settlement was reached         to at least sustain a claim for breach of       policy, among other things.
missal in favor of a Chubb Ltd. unit in a       in the litigation in December 2020.             contract,” the ruling said.

                                                                                                                                      BUSINESS INSURANCE        DECEMBER 2021           13
What can go
right when we
recognize
our strengths?                        Dawn Hiestand
                                      Chief Operations Officer
                                      for Direct Markets
                                      Zurich North America
Our people are our power.
Zurich congratulates Dawn Hiestand,
Hayley Robinson and all of the
2021 Women to Watch honorees,
whose leadership and mentorship
are shaping a brighter future for
our industry.

Hayley Robinson
Group Chief
Underwriting Officer
Zurich Insurance Group

                                                         © 2021 Zurich American
                                                            Insurance Company
VIEW FROM THE TOP
                                                                         Robert L. Cohen
                                                                                    IMA FINANCIAL GROUP

                                     Q   The most prominent acquisitions
                                         you’ve completed recently were
                                                                                    facilities and social services. Together it
                                                                                    really changes our health care practice.
                                                                                                                                   customer experience and what we’re
                                                                                                                                   providing to the customer and less
                                     Bolton and Parker, Smith & Feek.                                                              worried about things like names and
                                     What do they bring to IMA?
                                                                                    Q   You seem to be very acquisitive
                                                                                        this past year — so why now?
                                                                                                                                   integration and merging and all those
                                                                                                                                   things. Those will come with time, but for

                                     A    The premise was really around our
                                          strategic plan of looking at the
                                     marketplace and saying it needs a privately    A    In the middle of the pandemic we did
                                                                                         our recapitalization and when these
                                                                                                                                   now we believe that there is great brand
                                                                                                                                   equity in them keeping their names.

                                     held, independent, employee-owned
                                     firm that allows us to attract and retain
                                                                                    other firms started to hear about that —
                                                                                    they are all firms that we have known          Q    Do you have an objective of
                                                                                                                                        where you want to be in terms
                                     very top talent. One that’s very client-       for 20, 25, 30 years — they picked up the      of the size of a brokerage?
                                     focused and provides unique services           phone and started asking about it. When

                                                                                                                                   A
Robert L. Cohen, chairman and        around deep-seated specializations.            we started talking about the vision, it was,        Our goal is to be the best that we
CEO of Denver-based brokerage          It’s built around organic growth. We         “Hey, you know, let’s have a conversation.”         can be and to build this broker of the
                                     believe the bigger you get, if you’re            It started with our recap and then that      future and it’s less around a dollar amount.
IMA Financial Group Inc., has        really based in value-added services,          just accelerated the conversation, and         The growth will come. We originally had
recently seen it through some        you ought to be able to not only sustain       obviously once you do one deal people          a five-year plan that was going to have
significant acquisitions. The        your organic growth, but you ought to          hear about it and the phone rings a little     us at $500 million by the year 2025.
                                     be able to increase it. And then it’s a        more, and then you do the second deal;         We’re going to be almost close to that
privately held company, which        firm that’s investing in technology.           it brings a little bit more. And we’ve been    number by the end of 2021. It’s pretty
is majority employee-owned,            Then what we’re looking for are like-        an alternative to the other firms that are     reasonable to say we could easily become
                                     minded partners. What we saw in Bolton         out there.                                     a billion-dollar broker in three to five
resulted from a merger of three
                                     and Parker, Smith & Feek, as well as                                                          years at the rate we’re at, but, again, it’s
brokerages in Kansas in the          Diversified Insurance and k.p.d. Insurance,                                                   less about size and more about quality.
1970s with the concept that it       were firms that were deeply committed
would offer clients claims and
                                     to being independent, employee-owned
                                     and private. They were very committed to                                                      Q   The insurance market has
                                                                                                                                       changed a lot over the past
loss control services, in addition   changing the client experience. They were                                                     couple of years. How do you see it
to insurance placements, which       committed to organic growth and really                                                        evolving going into next year?
                                     had built world-class sales and marketing,
was unusual at the time. CEO
since 1998, Mr. Cohen recently
                                     and they were investing in technology.
                                     So, the concept was let’s do it together
                                     as opposed to doing it separately.
                                                                                                                                   A    The market is maturing in many ways
                                                                                                                                        — not that it wasn’t a mature market
                                                                                                                                   before — but I think insurance carriers are
spoke with Business Insurance
                                                                                                                                   figuring out how to use data in a completely
Editor Gavin Souter about the
company’s acquisitions and           Q   What about the specializations that
                                         they bring? Do they diversify or build
                                                                                                                                   different way, which is obviously changing
                                                                                                                                   the pricing that we’re seeing in the
                                     on specializations that you already have?                                                     marketplace. These external catastrophe
the outlook for the market.
                                                                                                                                   events that we’re seeing — certainly

                                     A
Edited excerpts follow.                   The beauty of each one of the                                                            the number and the size of them have
                                          transactions is there was some                                                           significantly increased — change the profit
                                     overlap where we had specialties that
                                     got stronger. In Bolton’s case, they were      Q   Are you having more conversations?
                                                                                        Is the phone still ringing?
                                                                                                                                   and loss statements for carriers, which is
                                                                                                                                   having an impact on the market overall.
                                     very strong in education, but they did                                                          We think that is an opportunity for
                                     primarily K-12. We did primarily higher
                                     ed. So, when we come together, we have
                                     a specialization that’s K through higher
                                                                                    A   The phone is still ringing. Whether
                                                                                        they’re kicking tires or whether
                                                                                    they’re just interested in what
                                                                                                                                   brokers that are creating value-added
                                                                                                                                   services in response. Clients need us
                                                                                                                                   to help them manage this process and
                                     ed. In k.p.d.’s case, they have logging and    we’re doing or whether they’re truly           move through it. And I think brokers are
                                     forestry, and that really helps strengthen     interested in partnering, who knows?           getting more sophisticated, too. Their
                                     what we were doing in the agricultural                                                        capital structures are more sophisticated.
                                     side. In Diversified’s case, they did growth
                                     entities and a lot of technology, so that      Q   Do the companies you take
                                                                                        in retain their identities?
                                                                                                                                   They’re thinking more in terms of how
                                                                                                                                   they use technology and data. Obviously,
                                     really brought some capabilities to us.                                                       the acquisition or M&A marketplace is
                                       Parker, Smith & Feek is very big
                                     in construction, as are we, and so
                                     combined we’ve become a real force
                                                                                    A    They’ve built these deep-seated
                                                                                         specialties, they’re strong in organic
                                                                                    growth, they’re well-known in their
                                                                                                                                   quite robust in our industry, and capital is
                                                                                                                                   pouring in because they see the consistency
                                                                                                                                   of the returns. All those things are creating
                                     in construction. In health care, they          communities, so we believe that they           a marketplace that is full of opportunities
                                     brought us hospitals and doctors’ groups       bring brand equity. We’re more interested      for people if they’re willing to lean into
                                     and we were doing more assisted living         in creating the synergies around the           them as opposed to resisting them.

                                                     It’s pretty reasonable to say we could easily become a billion-dollar broker in three to five years
                                                                  at the rate we’re at, but, again, it’s less about size and more about quality.
                                                                                                                             BUSINESS INSURANCE        DECEMBER 2021         15
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