THE PLANET PROTECTING - SPECIAL REPORT - Business Insurance
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COST CONTROL: More states tap social workers to treat comp claimants - PAGE 4 MARCH 2023 SPECIAL REPORT CAPTIVE INSURANCE PAGE 18 PROTECTING THE PLANET Firms expand ESG focus to include biodiversity risks amid regulatory changes PAGE 14
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PRESIDENT Steve Acunto (Greenwich) sa@businessinsurance.com COVER STORY CHIEF OPERATING OFFICER Stephen Acunto (Princeton) stephen@businessinsurance.com PUBLISHER As biodiversity risks emerge as Keith Kenner a new area of environmental, (Chicago) kkenner@businessinsurance.com social and governance concern for organizations, EDITOR Gavin Souter insurers are responding with (Chicago) coverages that can help gsouter@businessinsurance.com restore natural ecosystems DEPUTY EDITOR and protect the businesses Claire Wilkinson (New York) and communities that cwilkinson@businessinsurance.com depend on them. PAGE 14 ASSISTANT EDITOR Louise Esola (New Orleans) lesola@businessinsurance.com INSIDE NEWS EDITOR John Obrecht (Chicago) jobrecht@businessinsurance.com SENIOR REPORTER SPECIAL REPORT: CAPTIVE INSURANCE Judy Greenwald (San Jose) jgreenwald@businessinsurance.com REPORTER As commercial insurance rates for lines such as property and cyber liability have Jon Campisi (Philadelphia) soared over the past two years, captive owners are increasingly using the vehicles to jcampisi@businessinsurance.com fill in gaps in higher layers of programs. PAGE 18 REPORTER Matthew Lerner (New York) mlerner@businessinsurance.com NEWS ANALYSIS SOCIAL WORKERS IN COMP States are taking steps to make it simpler for licensed COPY EDITOR Brian Gaynor FOR BREAKING NEWS clinical social workers to treat injured workers. PAGE 4 (Portland) COVERAGE, VISIT bgaynor@businessinsurance.com businessinsurance.com COMMERCIAL AUTO OUTLOOK ART DIRECTOR Higher damage claims and soaring verdicts continue to Jeremy Werling (Cincinnati) drive up commercial auto insurance rates. PAGE 6 jwerling@businessinsurance.com DIRECTOR OF RESEARCH, INTERNATIONAL PLANNING AND INSIGHTS Andy Toh Saudi Arabia’s insurance market is evolving as the (Chicago) government encourages consolidation. PAGE 10 atoh@businessinsurance.com MAJOR ACCOUNTS DIRECTOR - NORTHEASTERN U.S. & INTERNATIONAL Ron Kolgraf PERSPECTIVES (Boston) rkolgraf@businessinsurance.com In anticipation of federal restrictions on VIEW FROM HEAD OF EVENT SALES, REPRINTS & LICENSING noncompete agreements, companies should consider alternatives, writes Eric Meyer of THE TOP Susan Stilwill (Nashville) FisherBroyles LLP. PAGE 29 sstilwill@businessinsurance.com VICE PRESIDENT OF MARKETING GEOF Brian McGann (Buffalo) OFF BEAT McKERNAN bmcgann@businessinsurance.com Dolly Parton just says Geof McKernan, LEGAL BRIEFS CEO NSM Insurance VICE PRESIDENT OF DIGITAL no to social media MARKETING/COMMUNICATIONS Recent court opinions PAGE 12 claims she endorses Group, co-founded Jen Jonasson marijuana-based the company in 1990. (Chicago) jjonasson@businessinsurance.com MARKET PULSE Since then, it has Products, deals and more PAGE 27 products. PAGE 31 DIGITAL AD OPERATIONS MANAGER developed into a Zeina Alwafai specialty managing (Memphis) OPINIONS zalwafai@businessinsurance.com general agent offering Hard markets lead to changes; abortion a wide range of programs. Last year, the Conshohocken, DIRECTOR, CONFERENCES & EVENTS and med mal PAGE 28 Brittany Collins Pennsylvania-based company was sold to Carlyle Group (Lafayette) Inc. in a deal that valued it at $1.78 billion. Mr. McKernan bcollins@businessinsurance.com PEOPLE discusses the deal’s impact on NSM’s strategy and the state MARKETING COORDINATOR Insurance industry moves PAGE 30 Jessica Evangelista of the specialty insurance market. PAGE 13 (Washington) jevangelista@businessinsurance.com BUSINESS INSURANCE (ISSN 0007-6864) Vol. 57, No. 4, Copyright © 2023 by Business Insurance Holdings, Inc. is published monthly by Business Insurance Holdings, Inc., 1030 Lake Avenue, SUBSCRIPTIONS & SINGLE COPY SALES Greenwich, CT 06831. Accounting, business, circulation and editorial offices: PO Box 1010, Greenwich, CT 06836. Email businessinsurance@omeda.com to subscribe or for customer service. businessinsurance@omeda.com Periodicals postage is paid at Greenwich, CT. Printed in the USA. POSTMASTER: Send address changes to Business Insurance, PO Box 260, Lincolnshire, IL 60669. BUSINESS INSURANCE MARCH 2023 3
NEWS ANALYSIS States put social workers to task in comp BY LOUISE ESOLA lesola@businessinsurance.com “We can diagnose and provide therapy. With the field approaching 200,000 S everal states are taking steps to address shortages of qualified mental health professionals in workers compensation nationwide, social workers are critical by making it simpler for licensed clinical to improving access to treatment.” social workers to help injured workers. Sarah Hathaway, California enacted a law in 2022 clearing Axiom Medical Consulting LLC the red tape for licensed clinical social workers to treat in the workers compen- sation system, and New York, after passing a law in 2020 that cleared some hurdles, is ment of death in the larger sense; loss of considering legislation that would modify function is a form of bereavement,” Ms. the requirements. Schwartzman Levy said, adding that link- Maryland lawmakers for the second year ing mental issues and physical injuries has in a row are considering a bill that would long been a part of what licensed clinical allow licensed clinical social workers to social workers are called on to do. “The treat injured workers. Under existing law, biopsychosocial model is at the core of our Texas allows licensed clinical social work- belief system and training,” she said. ers to assist with vocational rehabilitation. clinical social workers to AVAILABLE practice and past president A major difference in the professions The term social worker is often misinter- treat under workers comp PROFESSIONALS of the New York chapter of of licensed clinical social worker and preted, which may explain why more states makes sense, as they can In 2020, New York began the National Association of psychologist is pay. “Just look at the fee haven’t caught on to the trend of letting manage many of the same allowing licensed clinical Social Workers. Both states schedules,” said Mr. Debus, who called them treat injured workers, experts say. issues typically handled by social workers to treat have “some of the strictest social workers “underpaid.” “When people think of social workers, psychologists. injured workers. Proponents requirements for becoming The Centers for Medicare and Medicaid they often think of case managers — “Licensed clinical social of doing so nationwide point a licensed clinical social Services’ fee schedules, on which many those in child welfare or hospitals, or workers have as much to the availability of social worker,” she said. workers compensation fee schedules are helping with applications for various post-graduate experience workers compared with Ms. Schwartzman Levy based, has clinical social workers’ reim- services,” said Sarah Hathaway, a Grand as licensed psychologists in psychologists as the primary spent much of her career bursements at 75% of what is paid to a Rapids, Michigan-based licensed clinical New York,” he said. “They reason to make the change. working in public hospitals psychologist, according to a 2021 report social worker and director of behavioral have to meet a certain LICENSED CLINICAL in New York, including by the National Association of Social health for Axiom Medical Consulting level of supervised clinical SOCIAL WORKERS as a trauma unit clinical Workers. LLC, which provides services for the expertise, basically, and IN NEW YORK supervisor. The connection Jennifer Cogbill, Frisco, Texas-based 27,021 comp industry. direct treatment. It’s similar between physical injury senior vice president of GB Care with “We do all of that. But social work is to that of the licensed psy- and mental injury has been Gallagher Bassett Services Inc., said many a much broader field,” she said. “We can chologist requirement.” well-established, she said, psychologists are unwilling to work at the diagnose and provide therapy. With the California is another state LICENSED pointing to literature going Medicare rates, which has led to a short- field approaching 200,000 nationwide, where many of the require- PSYCHOLOGISTS back to 2001 regarding age of medical professionals in the work- social workers are critical to improving ments for both fields are IN NEW YORK injuries and the “biopsy- ers comp field. Licensed clinical social 11,533 access to treatment.” similarly stringent, accord- chosocial model,” a term workers could help make services more Mark Debus, Chicago-based clinical ing to Marcia Schwartzman now widely used in workers available to injured workers, she said. manager of behavioral health with Sedg- Levy, a Larchmont, New comp circles. “The advantage is there is a wider net- wick Claims Management Services Inc., York-based licensed clini- Source: New York State “I deal with bereavement, work of professionals they can tap into,” said the move toward permitting licensed cal social worker in private Education Department which is not just bereave- she said. MOVES HELP CLOSE GAP IN MENTAL HEALTH PROVIDER SHORTAGES P rovider shortages in mental health are a major issue that extends beyond workers comp, experts say. The Health Resources and Services Administration, which tracks available treatment have only worsened in many ways,” said Sarah Hathaway, a Grand Rapids, Michigan-based licensed clinical social worker and director of behavioral health for Axiom Medical Consulting supported the California bill. “If there is an opportunity to expand access, as long as they can work within the scope of the workers compensation program, we are definitely advocates providers, says 37% of the U.S. LLC. “Caseloads are completely full.” and are willing to put our resources population lives in areas with mental The shortages are what drove on that expansion,” he said. vice president of behavioral health with health provider shortages and that the policy changes in California in Part of the cause of the shortage is that Axiom Medical in Chattanooga, Tennessee. the country needs an additional 6,398 2022, according to proponents. “many mental health providers — including Mr. Kertay noted “there is a problem mental health providers to fill the gaps. “There’s a shortage across the board, psychiatrists, psychologists, and social with mental health providers being “Many people find it hard to access across the country in behavioral health workers — are reluctant to treat injured well-trained in providing psychotherapy, behavioral health treatment for a variety (providers),” said Julian Roberts, workers in the work comp system because but by and large not having training of reasons … (and) while the increased use Atlanta-based president and CEO of of perceived difficulty of getting paid, which in issues related to return to work or of virtual services through the pandemic the American Association of Payers, actually doesn’t fit with my experience,” evaluating occupational capacities.” has been a positive shift, wait times for Administrators and Networks, which said Les Kertay, a psychologist and senior Louise Esola 4 MARCH 2023 BUSINESS INSURANCE
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NEWS ANALYSIS Commercial auto insurance rates rise as outsize jury awards, inflation add up BY MATTHEW LERNER news reports. The award included $900 mlerner@businessinsurance.com million in punitive damages. In November 2021, a jury in Texas T he commercial auto insurance sector rendered a total award of $730 million to has been fighting a decade-long, the survivors of Toni Combest, a 73-year- uphill battle — achieving underwrit- old great-grandmother who was killed in ing profitability only once in the past 10 a 2016 collision with an oversize cargo years despite consistent rate hikes — and truck hauling a propeller for a U.S. Navy pressures on buyers and insurers show nuclear submarine. little sign of waning. The Combest jury awarded $480 mil- Rising repair and replacement costs have lion in compensatory damages and $250 led to higher physical damage claims, but million in punitive damages in the case, sources say liability losses, driven in large Ramsey et al. v. Landstar Ranger Inc. et al. part by rising jury awards and so-called nuclear verdicts, pose a greater challenge. Inflation, supply chain issues and a “The inflated cost of doing the same drought of available labor have also added to costs and lengthened repair repairs, providing the same medical times, triggering ancillary costs such as temporary car rental or other alternative treatment, is running near or transportation expenses. above double digits in commercial After a profitable 2021 for commercial auto liability insurers, hopes for 2022 have “The inflated cost of doing the same Mr. Carlson said. auto in most books of business.” faded. According to data and informa- repairs, providing the same medical treat- Labor is also an issue, mirroring short- Chris Kopser, tion gleaned from statutory filings, 2022 ment, is running near or above double falls in the broader economy. Axa XL will likely show an industry aggregate digits in commercial auto in most books Nicole McMurtry, Oak Brook, Illi- commercial auto combined ratio above of business,” Mr. Kopser said. “What nois-based national transportation verti- 100% — signaling an underwriting loss that means is unless you get that amount cal leader at USI Insurance Services LLC, — according to James Auden, Chica- in your book every year, your loss ratio said she has fleet clients that have raised In another high-profile case, a crash go-based managing director of insurance will get worse, because you’re not getting wages for diesel mechanics 50% to 75% in involving a Walmart Inc. truck and at Fitch Ratings Inc. The commercial enough premium to cover the project- order to attract and keep qualified labor. actor-comedian Tracy Morgan in June auto loss ratio is up “quite a bit,” he said. ed losses.” “You might have the parts, but you don’t 2014 is widely believed to have cost the Manuel Padilla, vice president, risk have the staff to repair all the vehicles retailer some $100 million, according management and insurance, at MacAn- requiring service,” she said. to reports. “We are seeing social inflation drews & Forbes Inc., manages a fleet of Similarly, truck drivers are also in short The American Transportation Research on the liability side driving up executive autos that renewed in July 2022, and he is beginning his 2023 renewals supply as many older truckers retire and are not replaced or change jobs to work Institute studied information on 600 cases between 2006 and 2019. In the first loss costs and combined ratios, and process. “We expect that the rates are and drive closer to home. five years of the data studies, there were going to increase yet again,” he said. Even though physical damage costs are 26 cases over $1 million, and in the last insurers are responding with rate.” Mr. Padilla, who is also on the board rising, sources said increased liability costs five years there were nearly 300 cases. of the Risk & Insurance Management — in the form of settlements, litigation The number of verdicts over $10 million Nick Saeger, Society Inc., said that except for 2021 and judgments — are by far the larger nearly doubled. Sentry Insurance “it wasn’t uncommon to see 20%, 30%, cost component and challenge faced by ATRI also documented that from 2010 40% increases in premium,” annually. He the commercial auto sector. to 2018, the size of verdicts grew 51.7% added that he is exploring the use of a The outsize settlement numbers dwarf annually. Standard inflation grew 1.7% Loss cost pressures have put upward captive in preparation for the upcoming an increased frequency of five-figure auto annually and health care costs increased pressure on commercial insurance rates, renewal. repair bills, sources say. 2.9% annually over the same period. which have been rising and continue to Inflation, supply chain constraints and “ We are seeing social inflation on Mr. Kopser of Axa XL said that although do so. The third quarter of 2022 marked greater use of technology have added the liability side driving up loss costs such large awards exceed policy limits, the 45th consecutive quarter — or more costs to physical damage losses. and combined ratios, and insurers are they set a mark for future cases. “Today’s than 11 years — of increased premiums Dave Carlson, Cleveland-based U.S. responding with rate,” said Nick Saeger, ceiling is tomorrow’s floor,” he said. for commercial auto, according to the auto and manufacturing practice leader associate vice president of products and He added that excess casualty limits Council of Insurance Agents and Brokers. for Marsh LLC, said, “The components pricing in Stevens Point, Wisconsin, for have been substantially curtailed, with “We’ve gotten double-digit rate every in cars today are more costly.” Sentry Insurance. lead umbrella lines of typically $25 mil- quarter since 2019 mid-year,” said Chris For example, a bumper, formerly just In one high-profile case, a Nassau lion now offered in smaller chunks of $15 Kopser, chief underwriting officer, pri- a piece of steel, has “morphed” into an County, Florida, jury awarded damages of million or $10 million, with some as small mary casualty, Americas, for Axa XL, a injection molded, integrated piece of more than $1 billion in a 2021 wrongful as $5 million, and that towers previously division of Axa SA. Included in Axa XL’s equipment, supporting sensors, lenses, death case in a crash involving a truck in as high as $1.2 billion can only assemble business are large fleets with large deduct- and other technology. “A bumper is Melissa Dzion v. AJD Business Services $800 million. “You couldn’t build a tower ibles, such as national retailers. much more expensive than it ever was,” and Kahkashan Carrier, according to local that big today,” he said. 6 MARCH 2023 BUSINESS INSURANCE
CATALYTIC CONVERTER THEFTS PROMPT LEGISLATION, LOSS CONTROL ACTION A spike in catalytic converter thefts has caught the attention of the insurance sector and legislators, who are moving to take measures against the rising incidence. Risk management efforts can also mitigate Kevin Shumate, Ostrander, Ohio-based vice president, U.S. loss adjusting services, at Crawford & Co. “Stealing catalytic convert- ers has been an issue in the U.S. for some time, but thefts are on the increase in Aus- Auto manufacturers, fleet owners and in- dividual operators can take steps to mitigate the exposure. “People are warned to park in secure locations, consider alarms and sensors, and Modern diesel engines in medium and heavy-duty trucks use diesel exhaust fluid to improve emissions and an aftertreatment system, which means they don’t have a catalytic converter. Aftertreatment systems the threat and challenge potential thieves, tralia, Asia and the U.K.” to consult with their manufacturer are made up of a diesel particulate filter experts say. The popularity of larger sport around steps to make theft more and diesel oxidation catalyst, according to According to the National Insurance Crime utility vehicles has played into difficult,” Mr. Shumate said. Larry Harlow, director of claims for Sentry Bureau, claims for stolen catalytic convert- the hands of criminals. The converter itself can Insurance in Stevens Point, Wisconsin. ers soared 325% to 14,433 in 2020, the most “They often target sport be altered for identification “While the function of reducing emissions recent year for which figures are available, utility vehicles because their purposes, and devices such is the same, most aftertreatment systems up dramatically from just 3,389 in 2019 and ground clearance is sufficient as covers and steel plates can don’t contain the metals that make the cat- 1,298 in 2018. for the thief to gain access to be used to frustrate theft. alytic converters so valuable,” he said. Catalytic converters, which are parts of car the converter without having “Parking vehicles in locked The problem has also caught the eye of exhaust systems, reduce harmful emissions to deploy a jack, and that saves garages or fenced yards is ideal. If legislators. from internal combustion engines. They are time,” Mr. Porfilio said. this is not available, then leaving ve- “Some states are implementing greater targets for theft because they use precious Dave Carlson, Cleveland-based U.S auto hicles in well-lighted areas is recommended. enforcement and tracking systems, which metals, including platinum, palladium and and manufacturing practice leader for Marsh Services are now available to etch the VIN hopefully will inhibit this type of theft,” Mr. rhodium, in the process. Late last month, LLC, said larger vehicles also have larger onto the catalytic converter, which can help Porfilio said. platinum was selling for nearly $1,060 an converters potentially worth more. “People recover the part if stolen,” Mr. Porfilio said. In October 2022, New York Governor ounce, palladium for $1,770 per ounce, and find it easy to take a catalytic converter. All Auto manufacturers, which may have hun- Kathy Hochul announced several actions rhodium for $12,350 an ounce, according to you need basically is a hacksaw and if you dreds or thousands of cars on a lot, are “very to increase catalytic converter theft en- Money Metals Exchange, offering a compel- have an electric device or saw you can do it aware of the exposure,” Mr. Carlson said, forcement in high-theft areas by targeting ling bounty for thieves. in a minute,” he said. and have security protocols in place to deter unauthorized and illegal vehicle dismantlers, “The presence of those metals is what Hybrid vehicles are also targeted because theft of all types. “Theft has been an issue or “chop shops.” She also signed legislation drives catalytic converter thefts, as they can the more limited frequency of the convert- at large original equipment manufacturers, that imposes restrictions on the purchase, easily bring anywhere from $20 to $240 in er’s use — it is only used when the gas en- so they’ve been very in tune with theft for sale and possession of catalytic converters recycling value depending on the amount gine is engaged — leaves the metals inside decades,” he said. by vehicle dismantlers and scrap processers. and type of precious metal they contain,” said less degraded and of higher value, he said. Claims for catalytic converter thefts are According to the National Conference of Dale Porfilio, chief insurance officer for the “Industry sources suggest that hybrid ve- often below the threshold of deductibles on State Legislatures, 12 states enacted bills in Insurance Information Institute in New York. hicles and SUVs are targeted predominantly. the commercial coverage for large vehicle 2021 addressing catalytic converter thefts, The problem is growing and spreading. The Toyota Prius is ranked among the top fleets, he said. at least 20 states enacted 25 bills in 2022, “The frequency of these claims has 10 most targeted cars in the country,” Mr. Emerging technology is also helping re- and “the trend is likely to continue in 2023.” increased over the past 18 months,” said Shumate said. duce the exposure for diesel vehicles. Matthew Lerner Vermont Captive Insurance OVER 1,250 CAPTIVES LICENSED Our reputation protects your reputation. 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NEWS ANALYSIS D&O challenges remain for private companies as economic uncertainty continues, layoffs rise BY JUDY GREENWALD to bankruptcy filings,” she said. jgreenwald@businessinsurance.com Many clients have been able to “embrace some of the trouble of the pandemic” and NEW YORK — The economy is continuing have turned into “pretty sophisticated” to present significant, still unresolved, companies, said Cathy Padalino, Wash- challenges for private company directors ington-based senior vice president at and officers, including the ongoing threat Aon PLC. of bankruptcy, experts say. However, there have been “tremendous” At one time or another, private com- restrictions to capital that have not been panies have had to cope with issues seen in a decade, said Gregg Glick, San including inflation, labor shortages, Francisco-based senior vice president, pri- higher interest rates and the supply vate/health care division, at Allied World chain, said Sandra Lagana, Hartford, Insurance Co., pointing in particular to Connecticut-based private D&O product overleveraged companies in the software manager for Travelers Cos. Inc. Each of and health care sectors. these is relevant, “and a lot of uncertainty “Unfortunately, I do fear it’s a long continues to exist in the economy, and this by downsizing or closing operations, their doors, others have restructured their road ahead, with a lot more bankruptcies, makes it especially challenging for private delaying or shying away from other ave- supply chains by in some cases moving shutdowns, layoffs and a contraction of businesses,” she said. nues of growth, “and, unfortunately, you their manufacturing facilities closer to capital,” he said. Ms. Lagana was among the speakers may find that some companies will look home or adding or changing suppliers, Discussing claims trends, session mod- who addressed how private companies are to cut corners by not updating or perhaps she said. Others have turned to technol- erator Ivan J. Dolowich, co-managing adapting to economic conditions during not following all of their policies and ogy and innovation to address economic partner with Kaufman Dolowich & a session at the Professional Liability procedures,” Ms. Lagana said. threats, she said, warning that if these Voluck LLP in Woodbury, New York, said Underwriting Society’s D&O symposium “Certainly, some organizations will be moves are not well executed, they could while COVID-related claims have not in February. Speakers said that private- more likely to default on loan payments give rise to claims. materialized as expected, the market is now company D&O policyholders range and still others may be in a position where While the paycheck protection program seeing claims around return-to-work and from small mom-and-pop businesses they end up having to file for bankruptcy,” has been successful, at least temporarily, in discrimination issues. There has also been to unicorns, private companies that are she said. keeping businesses open, and some orga- a pickup in regulatory claims, as well as valued at more than $1 billion. Often these responses are along indus- nizations have shut their doors without under the Illinois Biometric Information There are several approaches companies try lines, Ms. Lagana said. While certain needing to file for bankruptcy, “we’re not Privacy Act and the Telephone Consumer can take to address these issues, including businesses, such as restaurants, have shut quite out of the woods yet, when it comes Protection Act, he said. Experts weigh cyber risks, need for federal backstop BY JUDY GREENWALD rest of that so the insurance industry can could be a cyberattack that results in an jgreenwald@businessinsurance.com survive … it’s a wonderful thing.” impact that would be similar to a war Mr. Gittler spoke during one of several event. And how you define that is a long H aving the federal government help if wide-ranging sessions on cyber issues. road and takes a lot of thought around there is a cyber-related catastrophe is During a session on the state of the how you address that,” said Robert Wice, a good idea, but only if it is restricted cybermarket, Courtney Maugé, Atlanta- underwriter, large risk errors & omissions, to serving as a backstop in a situation that based senior vice president and cyber for the Beazley Group in Farmington, threatens the insurance industry’s survival, practice leader for NFP Corp., said cyber Connecticut. said a speaker at the Professional Liability pricing is “where it needs to be to remain “But for the sustainability of this Underwriting Society’s cyber symposium profitable. But we’re all a little bit hesi- marketplace, to ensure that we contain in February. tant” because of ransomware. any sort of volatility as best we can,” it is “We’re the ones with the expertise, not “We know that we haven’t seen it as critical to get all stakeholders involved, those who work for the government,” said much from a frequency perspective, but he said. Jeremy Gittler, New York-based head of we do know the severity can still be there,” D uring a session on reinsurance, cyber and technology-Americas at Axa she said. ford, Connecticut-based Trium Cyber Simon Welton, executive vice president XL, a unit of Axa SA, during a session on Ms. Maugé questioned whether this U.S. Services, Inc. However, he said the at London-based cyber underwriting cyber market capacity constraints. lull is because “they’re busy in Russia or additional capital’s impact may be limited company Envelop Risk, said, “If there is “We don’t want a situation where they’re Ukraine,” and “it’s all going to come back because the various players are “not all one improvement that I see,” it is “that saying … you can only deploy this much really hard.” competing in the same space.” this line of business feels a lot more col- capacity, you have to get this much rein- Additional capacity coming into the Panelists wrestled with the question laborative across the whole value chain.” surance,” he said. “None of us want that.” market from traditional insurers as well as of addressing war risk in cyber policies There is “a dialogue and there’s a will- “But if it is a true backstop that — after managing general agencies and insurtechs during a session on war, widespread ingness to share what we can,” which is whatever number you want to pick — the “is probably going to have an effect on events and systemic risk. “really important because we’re all learn- government will come in and take up the rate,” said Josh Ladeau, CEO of Hart- “Let’s just own up to the fact that there ing something new,” he said. 8 MARCH 2023 BUSINESS INSURANCE
NEWS ANALYSIS Updating medical fee schedules takes balance BY JON CAMPISI jcampisi@businessinsurance.com ESTABLISHING RATES VARIES M BY STATE edical inflation is a top concern in work- ers compensation this year and adjusting medical fee schedules may be one way to address rising costs, although the appetite for change is limited, comp experts say. While some states have introduced legisla- tion to overhaul their schedules, variations in S tates with medical fee schedules in workers compensation typically base their rates on Medicare, a reimbursement strategy costs among states illustrate the complexity of that reflects problematic past the issue, they say. systems and modern-day Forty-four states and Washington, D.C., constraints, experts say. have workers comp medical fee schedules. Many states lack the funds While the fee schedules are intended to to undertake the research curb medical costs, George Furlong, chief Association of Payers, Administrators and higher medical costs,” said Griffin Murphy, necessary to devise fee strategy officer for Sarasota, Florida-based Networks and also on the WCRI Disability policy analyst with the Washington-based schedules that are “meaningful medical bill review company Accuro Solu- and Medical Management Program Advisory National Academy of Social Insurance. “If for their particular state,” tions, described a balancing act. Board. “Designed properly, a fee schedule employees get better treatment when they hence the reliance on basing “If you have no fee schedule your provider should provide enough incentive for a pro- have control over their treating physician, schedules on Medicare, said costs are very high,” he said. “If your fee sched- vider to treat an injured worker with a high however, higher medical costs might be Kent Spafford, a board member ule is low, you’re starting to lose providers.” quality of care.” offset by lower indemnity benefits and better of the American Association Most fee schedules pay doctors what they Fees for different medical services can affect return-to-work outcomes.” of Payers, Administrators and would receive through private insurance or injured worker outcomes, said Jason Beans, An attempt to institute fee schedules has Networks and the Workers Medicare, Mr. Furlong said, and many states’ CEO and founder of Chicago-based Rising been viewed as interfering with employer Compensation Research fee schedules are based on Medicare (see Medical Solutions, which provides medical rights and causes “significant opposition,” Mr. Institute’s Disability and related story). cost containment services to comp insurers Murphy said. Medical Management Raji Chadarevian, executive director of and employers. Other mechanisms could work, according to Program Advisory Board. actuarial research for the Boca Raton, Florida- Professional services fee schedules that get Mr. Murphy, who said that with rising med- Mr. Spafford said medical based National Council on Compensation “too aggressive” in trying to keep fees low ical inflation, insurers charge higher comp inflation, a top comp industry Insurance, co-authored a report released last could mean fewer physicians treating comp premiums. Employers can increase workplace concern, should be cause for month that showed that during the past decade, patients, he said. safety measures and lobby state legislators to updating medical fee schedules. non-fee schedule states saw doctor fees grow at “In Illinois, it took forever to get a fee heighten standards for comp claim approval, Medicare, because it is a faster rate than the national average. schedule, and, even when we got it, it wasn’t he said. subject to budgets and “In general, non-fee schedule states tend very aggressive,” Mr. Beans said of the fee “Both of these may effectively reduce claims political maneuvering, does to reimburse the same service at a relatively schedule implemented in 2011. and thus serve as protection against increasing not necessarily change its higher amount,” Mr. Chadarevian said. Illinois lawmakers in January introduced medical fees,” he said. rates based on medical States without physician services medical House Bill 1548, which would void existing Fee schedules are effective when they inflation, he said. fee schedules are Indiana, Iowa, Missouri, fee schedules after Aug. 31, 2024, and require recognize market prices and are updated to Stacy Jones, senior research New Hampshire, New Jersey and Wisconsin. the Workers’ Compensation Commission to reflect changes in medical treatment or billing analyst with the California Some of these states have pharmacy, hospital establish new fee schedules by Sept. 1, 2024. practices, Mr. Chadarevian said. Workers’ Compensation and ambulatory surgery center fee schedules. It’s unclear whether employers in states Mr. Beans said “fee schedules have to be Institute, said California hasn’t Many states have amended their fee sched- without schedules pay more in total costs. written in a way that they do not create neg- seen significant medical ules since 2019, according to a June 2022 In Wisconsin, where there is no fee sched- ative incentives, to either limit access to care treatment fee schedule changes Workers Compensation Research Institute ule, “employees have more control over their or to change treatment patterns … or billing recently and that the “basic report. Many update their fee schedules in treating physician, which might contribute to patterns,” he said. medical treatment fee schedule accordance with laws that require fee sched- is very straightforward.” ules to be re-examined, but changes vary. WORKERS COMPENSATION FEE SCHEDULE INDEX Many states’ fee schedules, Maryland, New York, Pennsylvania and COMPARED WITH PROVIDER EXPENSE INDEX (MARCH 2022) including California’s, were Texas had double-digit percentage increases Higher workers compensation rates in some states do not always correlate with higher Medicare rates, and historically based on the between 2019 and 2022. some states with high provider expenses have some of the lowest comp medical fee schedules, according to average cost of medical a June 2022 report from the Workers Compensation Research Institute. While a majority of states have fee sched- services but this led to ules, the percentage paid compared with 200 problems, she said, which is Medicare varied from 5% below in Massa- ■ Medicare ■ Workers compensation why many states now base Index (median state = 100) 175 chusetts to 163% above in Nevada, the WCRI fee schedules on Medicare. report said. 150 Fee schedules were States with some of the highest provider historically based on “usual expenses — including California, Hawaii, 125 and customary” physician New York and Massachusetts — had some of charges, but that definition 100 the lowest fee schedule reimbursement rates created issues in many in the country. 75 states since what providers Some stakeholders are calling for change. charged and what they were “I think you’ve got to go back to, what’s the 50 actually paid for didn’t always purpose of the fee schedule?” said Kent Spaf- AR MS ID NE TN KY OK KS WV SC AL LA UT NM ME NC OH GA AZ SD ND MN TX MI OR VT VA WY PA MT FL DE NV CO IL WA MD HI CT MA CA NY DC AK equate, Mr. Spafford said. ford, who is a board member of the American Source: Workers Compensation Research Institute (WCRI) Jon Campisi BUSINESS INSURANCE MARCH 2023 9
INTERNATIONAL PROFILE: SAUDI ARABIA MARKET DEVELOPMENTS Updated January 2023 ■ Even prior to the outbreak of the COVID-19 pandemic, Before the enactment of the Cooperative Insurance progress toward achieving the 39 Companies Control Law of 2003, the Saudi insurance key performance metrics of the market was largely unregulated, and insurance had no government’s long-term economic formal legal status. The market went through an initial strategy, “Vision 2030,” had transition phase as insurance companies were licensed significantly stalled. It had been and supervised in a stricter regulatory environment. hoped that Vision 2030 would The second phase of development involved regulatory provide the impetus to diversify reform, including the issuance of anti-money and grow the economy and, as a laundering, reinsurance, broking, actuarial work, result, the insurance sector. The outsourcing and risk management regulations. The pandemic put further pressure on current phase of development involves establishing the economy, which, with previous and encouraging best practices in crucial areas such poor results in auto and medical as underwriting and claims handling. Saudi Central insurance — the two largest market sectors — severely threated GLOBAL Bank, the market regulator, has pursued a strategy to insurance companies. Despite the encourage consolidation. To date there have been six P/C MARKET RANKING mergers, while two companies have exited the market. AREA recent recovery in global oil prices and Saudi finances, further market 830,000 There are effectively 25 companies in the market today; all but two write nonlife business. consolidation looks highly likely. ■ As a result of the poor auto MARKET SHARE PROPERTY experience and ongoing adverse 5.7% medical business, the solvency MISC. square miles position of several companies 3.9% remains compromised. The Saudi AUTO Central Bank (SAMA) took steps CONSTRUCTION to force several players in the 20.2% & ENGINEERING market to improve their capital 2.5% POPULATION position. Two companies left the market, and others have found it 35.4 MARINE, difficult to survive due to how the AVIATION & market is currently structured, TRANSIT 5.4% regulated and operated. ■ SAMA released a circular on Oct. million 26, 2022, requiring a mandatory PA & HEALTH CARE reinsurance cession to the local WRITTEN BY NONLIFE market. The requirement is for the COMPANIES local insurance market to have 62.3% a mandatory cession of at least MARKET CONCENTRATION 20% of all reinsurance treaties — proportional and nonproportional. 60.05% MARKET GROWTH This will increase to 25% in 2024 In millions, U.S. dollars Life Nonlife PA & Health and 30% in 2025. $7,000 ■ The latest version of the Cooperative Insurance Companies $6,000 market share of top three insurers Control Law, issued by SAMA on Sept. 1, 2021, states that the $5,000 minimum share capital of any insurance or reinsurance company $4,000 within Saudi Arabia shall be SAR $3,000 2023 GDP CHANGE 300mn ($80 million). (PROJECTED) ■ SAMA announced on Nov. 14, 2.6% $2,000 2021, that it had approved a new insurance product designed to $1,000 provide coverage of driverless vehicles and related risks. $0 2017 2018 2019 2020 2021 Source: Axco Global Statistics/Industry Associations and Regulatory Bodies COMPULSORY INSURANCE NONADMITTED INTERMEDIARIES MARKET PRACTICE ■ Auto third-party bodily injury and property damage insurance By law insurers must be locally Brokers and agents are Little nonadmitted insurance licensed to carry on insurance required to be authorized is practiced in Saudi Arabia. ■ Workers compensation (state scheme) business in Saudi Arabia. The to do insurance business Companies can seek written ■ Professional indemnity for brokers, reinsurance regulations refer solely to and can place business only permission to place business brokers, insurance agencies, actuaries, loss assessors/ licensed insurance companies with insurers licensed to in a nonadmitted market adjusters, claims settlement/third-party administrators, and intermediaries and make operate in Saudi Arabia, in cases where no local insurance advisers and insurance aggregators no mention of insurance buyers. with some exceptions. coverage can be sourced. ■ Liability of air carriers and aircraft operators for This is generally interpreted third-party property damage or injury to third parties to mean that insurers can on the ground, as well as injury to passengers and issue policies from abroad if damage to baggage or goods being transported approached by a buyer, but Information provided by Axco. unlicensed insurers may not ■ Shipowners liability for marine oil pollution solicit business. For free trial access to (financial guarantee or insurance) global insurance intelligence, visit axcoinfo.com. 10 MARCH 2023 BUSINESS INSURANCE
SOMETIMES TO HAVE MORE FREEDOM YOU NEED MORE CONTROL We protect your people through global employee benefits programmes wherever they are MAXIS GBN, a Private Limited Company with a share capital of €4,650,000, registered with ORIAS under number 16000513, and with its registered office at 313, Terrasses de l’Arche – 92727 Nanterre Cedex, France, is an insurance and reinsurance intermediary that promotes the MAXIS Global Benefits Network. MAXIS GBN is jointly owned maxis-gbn.com by affiliates of AXA France Vie and Metropolitan Life Insurance Company and does not issue policies or provide insurance. MAXIS GBN operates in the UK through UK establishment with its registered address at 1st Floor, The Monument Building, 11 Monument Street, London EC3R 8AF, Establishment Number BR018216 and in other European countries on a services basis. MAXIS GBN operates in the U.S. through MAXIS Insurance Brokerage Services, Inc., with its registered office located at c/o Katten Muchin Rosenman LLP, 50 Rockefeller Plaza, New York, NY, 10020-1605, a NY licensed insurance broker.
LEGAL BRIEFS refused to honor a required 30-day notice period and made claims of unfair treat- ment and discrimination against Lockton stubs and computers. She argued that a new claim accrued each time she scanned her fingerprints and White Castle sent DOCKET “as leverage to obtain a release from her her biometric data to a third-party. commitment not to solicit Lockton cus- White Castle argued that claims accrue tomers and other restrictions.” Lockton only once, when the biometric data is imposes a four-year restrictive noncom- initially collected or disclosed, and said pete on partners. class-wide damages could total more than Lockton alleges that Ms. Giblin created $17 billion. “a toxic work environment” after her pro- The minority opinion stated that the CONTRACTOR CHARGED motion and had previously sought to leave state high court ruling “will lead to conse- WITH MANSLAUGHTER Lockton, former exec the brokerage. In the lawsuit, Lockton says Ms. Giblin quences that the legislature could not have intended” and the majority’s interpretation A Vail, Colorado, construction contractor has been charged trade accusations was an “owner, Producer Member and Producer Partner” of Lockton rather than “renders compliance with the Act especial- ly burdensome for employers.” with felony manslaughter after a worker died in a trench collapse n Lockton Cos. LLC and a former exec- an employee and had access to sensitive in 2021, the U.S. Department utive who recently joined rival Alliant competitive information and customer of Labor announced. The Insurance Services Inc. are embroiled accounts. Occupational Safety and Health in legal disputes in California and Mis- Among other things, the suit seeks Administration cited Peter Dillon, souri centering on gender discrimination an injunction barring Ms. Giblin from owner of now-defunct A4S LLC, allegations and a four-year noncompete taking Lockton clients, prospective clients after a worker installing residential requirement. and staff until December 2026. sewer pipes suffered fatal Sallie Giblin, who joined Alliant as an A Jan. 31 filing by Ms. Giblin seeking injuries when the trench he was executive vice president late last year, filed to dismiss Lockton’s suit, characterizes it working in caved in. The collapse a bias suit against Lockton in December as “speculative” and asserts that “Lockton resulted from deteriorating and in January filed a motion to dismiss has not alleged that any employees or conditions at the project, which the brokerage’s noncompete suit against clients were improperly solicited by A4S could have prevented by her, which was filed in November. Ms. Giblin joined Lockton in 2006. In Giblin or have been lost due to wrongful conduct.” Attorney’s FMLA using legally required trench protection systems, the DOL said. 2016 she became a member of the execu- tive committee of the brokerage’s Pacific case reinstated FEDERAL COURT SEEKS Series unit, became a Lockton partner in n A federal appeals court reinstated a STATE COVID RULING 2017 and was named president of the San Family and Medical Leave Act lawsuit The 9th U.S. Circuit Court of Diego office in 2018. filed by an attorney who was terminated Appeals in San Francisco asked In her suit, Sallie Giblin v. Lockton when she sought unpaid leave to care for the California Supreme Court to Cos. LLC – Pacific Series, filed in Cali- her 2-year old son, who had a history of consider whether a virus exclusion fornia’s Superior Court in Los Angeles respiratory illness and was experiencing in Napa Valley restaurant The in December, Ms. Giblin alleges that as COVID-19-like symptoms. French Laundry’s coverage is a leader at Lockton she was subject to Polina Milman, an attorney with unenforceable under state law. gender discrimination and retaliation by Southfield, Michigan-based Fieger & In one of the first COVID-19 other executives at the brokerage. Fieger P.C., worked from home for four business interruption cases filed, In addition, she argues that Lockton’s noncompete agreements are unenforce- BIPA ruling could days in March 2020, then requested unpaid leave because her son’s condition the Yountville-based restaurant, its sister restaurant Bouchon Bistro, able and that her dispute with the broker- age should be heard in California. have major impact was not improving, according to the ruling by the 6th U.S. Circuit Court of and its chef and owner Tom Keller filed suit in March 2020 against Among other things, Ms. Giblin alleges n The Illinois Supreme Court ruled Feb. Appeals in Cincinnati in Polina Milman a Hartford Financial Services that Lockton is a “raucous boys’ club” 17 in a divided opinion that employers v. Fieger & Fieger P.C. et al. Her job was Inc. unit in connection with its where some executives engage in inap- violated the Illinois Biometric Informa- terminated. pandemic-related closures. propriate behavior and men are promoted tion Privacy Act each time they collected Ms. Milman filed suit in U.S. District to the detriment of women. fingerprints from an employee and dis- Court in Detroit alleging her termination FIRM PLEADS GUILTY In addition, she alleges that her accounts closed that biometric information without violated the FMLA and state law. The AFTER WORKER KILLED were insufficiently staffed after she inter- the employee’s consent. district court granted the firm’s motion An Alabama plastics manufacturer vened to prevent the hiring of two pro- The 4-3 ruling in Latrina Cothron v. to dismiss the case on the basis Ms. agreed to pay $242,928 in ducers with a history of sexual harassment, White Castle System Inc. followed the Milman had failed to state a claim under restitution and also reimburse she was excluded from various executive unanimous Feb. 2 decision in Tims vs. the FMLA. funeral expenses to the estate committee decisions and activities, and Black Horse Carriers Inc., in which the The case was unanimously reinstated by of a 45-year-old worker who she was unfairly blamed for the poor per- state high court ruled that claims under a three-judge appeals court panel, which died in August 2017 after being formance and morale of the Pacific Series BIPA are governed by a five-year, rather remanded the case for further proceedings. pulled into the moving rollers of unit’s employee benefits division. than a one-year, statute of limitations. The complaint’s allegations, the ruling a plastics extrusion machine at In September 2022, Ms. Giblin was Illinois is the only state that permits said, “make clear that when faced with a plant in Helena, Alabama. ABC removed from the executive committee. a private right of action in biometric a pandemic involving a novel respiratory Polymer Industries LLC pleaded She resigned from Lockton on Nov. 29 cases. The 2008 law enables plaintiffs illness (COVID-19), concurrent recogni- guilty to a willful violation of and took a position as an executive vice to be awarded $1,000 for each negligent tion by federal and state executive orders workplace safety requirements president at Alliant. violation, or $5,000 for each intentional and a rising number of COVID-19 cases, in federal court in Birmingham. On Nov. 30, Lockton sued Ms. Giblin or reckless violation. Milman believed that her symptomatic Occupational Safety and Health in federal court in Kansas City, Missouri, Ms. Cothron, a manager of a White two-year old son — who had a history Administration inspectors said where the company is headquartered, Castle restaurant in Illinois, stated in her of hospitalization for respiratory issues the company failed to provide saying it was seeking to prevent her taking complaint that shortly after her employ- … may have contracted the illness. Faced machine guarding measures and confidential information to Alliant. ment began in 2004, the company intro- with these facts, Milman made a request lacked safety procedures to shut The suit, Lockton Cos. LLC – Pacific duced a system that required employees to for unpaid leave to care for her son, a down or isolate stored energy. Series v. Sallie F. Giblin, alleges that she scan their fingerprints to access their pay hallmark FMLA claim.” 12 MARCH 2023 BUSINESS INSURANCE
VIEW FROM THE TOP Geof McKernan NSM INSURANCE GROUP Q What does the Carlyle deal mean for NSM? that are with you in the short term as well as the long term, and that’s important to us. your various programs? A It means we’re able to continue to grow the business organically as well Q Are there any areas of the market that you see as being A There’s been a lot of musical chairs around people. We go after strong talent — talent is our No. 1 investment as invest in people, IT and acquisitions. more difficult than others? — and we’ll continue to do so. We also Then we’re going to continue to grow the have a very, very strong internship business not only through internal growth but through acquiring specific industry niches, and we can also acquire more A The property cat business is probably the hardest market anybody’s seen, and it continues to be hard, especially in areas program that’s over 12 years old, so we grow a lot of our talent ourselves and that’s done phenomenally well for us. significantly higher EBITA businesses. like California and Florida. Commercial trucking is still a hard market. Professional Q Looking ahead, how do you Geof McKernan, CEO of NSM Insurance Group, co-founded the Q About how many acquisitions have you made over the years? liability in certain areas can be hard where see the market panning out over the next 12 to 18 months? company as a retail brokerage in 1990. Since then, it has developed A We’ve made over 25 acquisitions over the last 32 years. A I think it will remain a hard market; things aren’t changing. You have to remember that, on a worldwide basis, into a specialty managing general agent offering programs ranging Q Obviously, we’re in a different era in terms of interest rates, etc. What carriers have not done great, so they are looking to get their returns back from professional liability for difference will that make to your growth because of wildfires, hurricanes, floods ambitions and your acquisitions? and all the geopolitical risks. So, that all architects and engineers to affects the capacity, and I don’t think the A pet insurance. Last year, the It’s not going to slow us down at market’s going to go soft anytime soon. Conshohocken, Pennsylvania- all. Carlyle is a large private-equity based company was sold by its firm, and we have both the cash and the appetite to keep growing, and we Q It’s been this way for some time, so how long do you see it going on for? prior owner White Mountains will. We will buy businesses prudently Insurance Group Ltd. to Carlyle Group Inc. in a deal that valued and we’ll continue to be aggressive with businesses that we want to acquire. A It’ll continue because they just haven’t had the returns they would want, and that’s caused prices to increase, period. it at $1.78 billion. Mr. McKernan Q Have you seen much change in the capacity is less available. Carriers recently spoke with Business Insurance Editor Gavin Souter valuations over the past year? want to be in business to make money, so they use capacity where they get Q Do you see signs of more capacity coming in? about how the investment A We’ve seen some valuations come down and we’ve definitely seen a slowdown the best return. We understand that. A Inklings of it, but we’ll have to affects NSM’s strategy and the state of the specialty insurance in what’s coming to market. It’s also put some of our competitors on the sidelines. Q We’ve just seen a very difficult reinsurance renewal. Did that wait until after the summer to see what’s really happening. The reinsurance affect your programs? renewals were really tough for a lot of market. Edited excerpts follow. Q You have operations in insurers, and I don’t think that’s eased off London as well. Do you see opportunities for growth there? A It affected us in property cat in that it didn’t allow us to get as much capacity as we would have liked, but, because we yet, so we’re going to have to wait and see and get through hurricane season. A Very much so. We’re very bullish on growing in the U.K. and also in Western Europe. have so many different programs, we can also pivot and focus more on other things where there isn’t a capacity constraint. Q What else do you see happening in the market? Q Most insurance buyers would say it’s still a difficult market. How Q As you say, you are looking to expand. Where do you see opportunities? A The business is going to go into the carriers that can innovate, the MGAs that continue to innovate and would you characterize the market provide product. You’ve got to provide from your specialty point of view? A I’m agnostic to the niche. I look for opportunities that are sustainable more than just the price: It’s product, service, having a response time that’s A This is the hardest insurance market I’ve seen in 40 years, and it continues to be that. Obviously, capacity is at a and renewable, whether it be in professional liability, commercial auto or other areas like warranty. really quick, and having an easy way to do business. So, we’ve invested a lot in technology so our customers can premium, and what we strive to do is use come to us whether it’s six o’clock in capacity prudently and partner up with quality insurance carriers. You want carriers Q What’s your experience been in finding the expertise for the morning or 10 o’clock at night. We think that’s critical going forward. This is the hardest insurance market I’ve seen in 40 years, and it continues to be that. Obviously, capacity is at a premium, and what we strive to do is use capacity prudently and partner up with quality insurance carriers. BUSINESS INSURANCE MARCH 2023 13
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