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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
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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, membership@businessinsurance.com Greenwich, CT 06831. Accounting, business, circulation and editorial offices: PO Box 1010, Greenwich, CT 06836. Call 954-449-0736 to subscribe. Periodicals postage is paid at Greenwich, CT. 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
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
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
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
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.
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
“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. Columbia University Master’s in Insurance Management Sports Management Learn how to Manage an Insurance Business “ “ Barriers are erased and you get a bird’s eye view of the industry at large. - Jay C., Current Columbia Master’s in Insurance Management Student Fall 2022 Priority Deadline: March 1 sps.columbia.edu/BusinessInsurance BUSINESS INSURANCE DECEMBER 2021 9
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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