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Sponsored Content by ACE Group

Contractors Face Complex Insurance Scenario

Contractors should consider many factors when building a multinational insurance program.
By: | October 1, 2014 • 5 min read
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With today’s expanding global marketplace, U.S.-based construction companies naturally seek growth opportunities in foreign countries. For instance, China has been on a decades-long building spree. Middle Eastern nations continue to invest in massive developments. Cross-border construction activity among developed countries, particularly in Europe and Japan, remains robust.

That’s the good news for U.S. contractors considering or already involved in global projects. On the flip side, it’s critical to realize that international opportunities present different challenges than domestic projects.

Construction services represent a significant portion of global trade. World exports of construction rose 2% (to $115 billion) in 2012, the World Trade Organization estimates. The European Union and Asia represent the major share of that trade. Yet, while international trade in construction is on the rise, every country retains its own laws regarding insurance, so building a multinational insurance program represents a significant challenge.

ACE’s recently published whitepaper, “Global Construction: International Opportunities, Local Risks” focuses on educating risk managers about the complexities of going global.

Key issues for contractors to consider include:

Unique challenges

SponsoredContent_ACELegally speaking, compliance for U.S. contractors operating outside the U.S. is much more complex than for their domestic operations. For example, by operating in different countries, multinational contractors must adhere to a myriad of local national laws and regulations regarding the “duty of care” they owe to the general public and other third parties. While most of the developed world has established employer duty-of-care legislation, the majority of the countries where many of these new global projects are available have not. A contractor’s insurance program should be flexible enough to handle claims in several different jurisdictions and provide adequate coverage for awards granted in emerging, as well as developed, legal jurisdictions.

Continuity of coverage across borders

For projects in foreign countries, a proactive risk management strategy should not only address the wide range of exposures typical in a given construction project, but also the impact that the differing local laws and regulations may have on the insurance coverage. For example, a contractor may have to obtain local insurance policies for various lines of business to cover the risks associated with its operations and to be compliant with local insurance requirements.

Building multinational solutions

SponsoredContent_ACEA multinational program using “non-admitted” coverage can be a cost-effective alternative to local coverage. Such non- admitted coverage is usually arranged in the parent company’s home country to insure exposures in other countries. Some countries, however, don’t allow non-admitted coverage, while others may allow it subject to conditions such as prior approval. In the past the threshold question was whether non-admitted insurance could be used, but today companies should also consider potential changes in enforcement practices as well as evolving regulations.

Local services can be crucial

Besides compliance issues, companies should address issues such as how local claims will be handled and paid, and which other local services they may need in the event of a claim or incident. For example, companies building projects in the European Union may want to purchase environmental coverage that responds to the demands of the European Environmental Liability Directive in order to provide proper insurance protection for potential liability associated with damage to the environment or natural resources. On a broader level, catastrophe planning should be part of a global risk management strategy.

Public/private partnerships may bring new risks

Another consideration for contractors revolves around project structure. Typically in the U.S., construction projects have been driven either by the owners or the contractors and the insurance coverage reflected that through an owner- or contractor-controlled insurance program (OCIP/CCIP). Today, while more U.S. projects are being structured as public-private partnerships, because the structure is more common in Europe, U.S. contractors considering projects abroad may encounter it for the first time. Public-private partnerships raise questions about how risks and liabilities are apportioned among the parties, so contractors may find themselves sharing responsibility for risks that are not typically part of a standard project, or have increased exposures for professional liability.

M&As can impact insurance programs

SponsoredContent_ACEWith the growth of the global construction economy, and the rising need for the development or improvement of infrastructure in emerging economies, an increasingly multinational approach has led to consolidation and merger-and-acquisition activity in the construction marketplace. As this trend continues, companies also need to consolidate their insurance programs to achieve better efficiency by individual lines of business and to meet insurance requirements in different countries.

The takeaway: local risks, global solution

For contractors working in more than one country, maintaining consistent insurance coverage across borders while controlling costs clearly presents a number of challenges. By using a controlled master policy and admitted insurance from local carriers, contractors potentially gain greater insight into their claims trends and an increased ability to identify locations experiencing significant losses. With this information, contractors also will be in a better position to take corrective action and reduce losses.

Finally, while varying insurance regulations and markets must be addressed, contractors should evaluate the insurance carrier, its experience and presence in foreign markets and its relationships with local insurers around the world. When it comes to international construction projects, the right insurance coverage will play a crucial role in long-term success.

To learn more about how to manage global contracting risks, read the ACE whitepaper: “Global Construction: International Opportunities, Local Risks.”

This article was produced by the R&I Brand Studio, a unit of the advertising department of Risk & Insurance, in collaboration with ACE Group. The editorial staff of Risk & Insurance had no role in its preparation.

With operations in 54 countries, ACE Group is one of the largest multiline property and casualty insurance companies in the world.
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Public Sector

Guaranteeing Performance

Surety carriers demand payment and performance bonds on public-private partnerships.
By: | September 15, 2014 • 8 min read
09152014_15_public_sector PB

In September 2008, the state of Indiana was ordered to reimburse the consortium that operates the Indiana Toll Road $447,000 for tolls waived for travelers evacuated during a severe flood.

The trigger was a compensation clause in the 2006 leasing agreement between the state and the private group that provided the state with an upfront payment of $3.8 billion in exchange for the consortium’s right to operate the 157-mile toll road for 75 years.

Such clauses guarantee that governmental entities compensate private operators when there’s an event affecting the leased asset’s revenue.

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That 2008 cost to the state government of Indiana is just one of the risks that may crop up as public-private partnerships — or P3s — are used more by cash-strapped governments as a means to shore up or operate aging U.S. infrastructure.

More recently, the consortium that paid Indiana for the right to run the highway encountered liquidity problems, leading to even more uncertainty over the highway’s future management.

The consortium’s timing was bad. It paid billions to take over the toll road right before the onset of the Great Recession.

P3s are fairly common in Europe and Canada, especially as a way to design, construct, and fund social infrastructure such as courthouses and hospitals.

But here in the United States, P3s are still in their infancy, and some surety carriers look at them skeptically.

“I have not seen a single project recently where the surety industry has not been able to provide a 100 percent performance and 100 percent payment bond.”

— Drew Brach, a Marsh managing director and U.S. surety practice leader

The arrangements permit governments to contract with private financiers and lending institutions to build, finance, operate and maintain major infrastructure development, with private entities covering the upfront costs in exchange for the ability to run the facilities and to collect tolls or other payments for long periods of time.

The “operating and maintaining” phase of an infrastructure project often ranges from 25 to 40 years.

Carrier Concerns
Carriers are particularly concerned that many states using P3s have yet to enact enabling legislation calling for the payment and performance guarantees that surety underwriters typically provide on infrastructure development.

Although a total of 34 states have laws enabling P3s, only 26 of those states require payment and performance bonds on P3 projects, said Mary Alice McNamara, second vice president and counsel with surety provider Travelers Bond & Financial Products.

Examples of some recent P3 projects that have surety bond requirements include California’s Presidio Parkway program, Ohio’s River Bridges East End Crossing program and the Indiana and Illinois Illiana toll-road project, McNamara said.

When surety bonds aren’t required to guarantee project completion and payment to subcontractors, suppliers, and laborers for work performed on P3 infrastructure projects, lenders may call for letters of credit (LOCs) instead, as performance security.

However LOCs “don’t offer any payment protection to subcontractors, suppliers and laborers who have worked on the job,” said McNamara, who also stressed that “LOC beneficiaries will be the ‘concessionaire’ ” or private investors providing the financing for the P3.

“A performance bond guarantees to the owner of the project that the project will be completed according to the underlying construction contract,” she said.

“A payment bond guarantees that subcontractors, suppliers, material, men, and laborers who have provided labor, services, or supplies to a project will be paid.”

Moreover, LOCs tend to be in an amount covering only a small portion of a project, often just 10 percent to 20 percent. Payment and performance bonds, on the other hand, “each provide up to the full amount of the construction contract,” McNamara said.

And yet P3s are a tempting concept at a time when national infrastructure needs and public sector budgetary challenges are so acute.

Deficient Roads and Bridges

Six years ago, the American Association of State Highway and Transportation Officials (AASHTO) warned that the country’s bridges would reach their average expected lifespan of 50 by 2015.

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In 2013, the American Society of Civil Engineers’ (ASCE) “report card” grade for America’s infrastructure was a dismal D+.

“Deficient roads, bridges, and ports hurt our GDP, our ability to create jobs, our disposable income and our competitiveness with other nations,” ASCE President Randall Over said in April.

So little has been done to shore up the nation’s bridges and other infrastructure that ASCE estimated deficient and unreliable surface transportation will cost each American family $1,090 a year in disposable income by the year 2020.

At a time when there is serious pressure on public entities to stretch their infrastructure project capacity, many state and municipal officials are looking to P3s for assistance, said Dorothy Gjerdrum, senior managing director of Arthur J. Gallagher & Co.’s public sector practice.

Dorothy Gjerdrum, senior managing director of Arthur J. Gallagher & Co.’s public sector practice.

Dorothy Gjerdrum, senior managing director of Arthur J. Gallagher & Co.’s public sector practice.

However risk specialists and decision-makers need to know the potential pitfalls of these arrangements and consider the broad range of uncertainties, she said.

Risks and Responsibilities

Gjerdrum, who spent more than a decade as a risk manager for a pool of county governments in New Mexico, said that there are a myriad of risks and legal issues involved when implementing a P3, including the review of the contractual agreement and which parties will be responsible if there is a major loss.

“There needs to be a significant review as to who is in the best position to bear the consequences if something happens,” Gjerdrum said.

“Sometimes public entities will take on too much responsibility for the things that can go wrong,” she said. Alternatively, “they may be too trusting that the large private organizations with whom they have partnered with will bear responsibility.”

“In a P3 situation,” said Travelers’ McNamara, “risks that would have traditionally been kept or retained by the public entity project owner are being pushed entirely down to the concessionaire level.”

Design builders who once negotiated with public entities are now dealing with a private concessionaire entity instead, she said.

Beyond that, different coverage issues will arise once a building or renovation project moves from the “design-build” phase into the “maintain and operate” phase. These issues call for the involvement of multiple insurance experts and good risk management oversight, said Gjerdrum.

“One example is whether (and how) sovereign immunity will apply if a facility is owned by a public entity but operated by a private business,” she said.
Sovereign immunity in many circumstances means that the sovereign or government involved in a project is immune from lawsuits or other legal actions.

“What happens if the private business fails? What if revenue projections fall short? What if the environment changes and the service or facility is no longer viable?” Gjerdrum asked.

“P3 solutions can help public agencies solve a myriad of infrastructure problems, but managing the associated risks requires thorough review, long-term thinking and good oversight,” she said.

There are clear advantages to P3s too, of course.
Virginia pioneered the P3 concept more than 20 years ago with a prison that was privately designed and built, according to Governing the States and Localities magazine.

“The prison, which ended up costing $42 million to construct, had to be built to state specifications, but the private company had its own design ideas that arguably were more efficient and less expensive,” according to the magazine.

“The point they made was they could build it cheaper,” Michael Maul, associate director of the Virginia Department of Planning and Budget, said to the magazine.

“It was built more quickly and for less cost.”

Virginia officials estimated that using a P3 to build and operate the prison would generate savings of between 15 percent and 20 percent.

Industry Critics

But some in the insurance industry are weighing in with their own concerns. Among the critics is the industry group, the Surety and Fidelity Association of America (SFAA).

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In its 2012-2013 SFAA Annual Report, the organization stated its position that P3s are “just another method of project delivery” and that “the construction portion of the project needs to be bonded under the Little Miller Act.”

The Little Miller Act — which is based on the federal Miller Act — requires state contractors to post performance bonds.

“By issuing a bond, the surety provides the public entity and the taxpayers and subcontractors with assurance from an independent third party, backed by the surety’s own funds, that the contractor is capable of performing the construction contract. The other primary benefit of the bond is that the surety responds if the contractor defaults,” the SFAA stated.

Insurers are working with P3s, however. Stephen Rea, general counsel for Liberty Mutual Surety in Boston, said that Liberty “has written bonds for P3 projects in states where enabling legislation requires public work to be bonded under Miller or Little Miller Act legislation.”

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Drew Brach, a Marsh managing director and U.S. surety practice leader, said that he has done work with several P3s, adding that surety bonds were obtained for each and every one of the deals.

Strain on Capacity

Surety industry capacity may also become more of an issue as P3s gain momentum.

Given that P3 projects are often valued at $500 million and up, project size could be a strain on a smaller surety provider’s ability to underwrite projects, said Roland Richter, vice president, marketing and analytics for Liberty Mutual Surety.

“Only a handful of sureties have sufficient capacity to bond P3 projects,” he said.

“Thus, as some of these P3s move forward, smaller surety companies may find an erosion in their premium base as their customer base may not be large enough to bid P3 projects,” Richter said.

On the other hand, Rick Ciullo, chief operating officer at Chubb Surety, said that surety underwriting capacity has been on the rise since 2007.

“Contractors became better risks during the construction boom of 2002 to 2006, though they may have had trouble getting surety capacity because the surety industry was losing money during this construction boom.”

Ciullo said he has seen many more projects within the industry valued at over $500 million bound by surety insurers since 2008.

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Marsh’s Brach has also seen surety industry capacity grow over time. Five years ago, Brach said, if you asked an underwriter to issue a $3 billion bond, the answer was generally “no,” said the brokerage executive.
But that’s changed, he said — even for larger projects.

“Some sureties say we’re going to analyze case by case what bonding is required [for a P3 program] and decide what the risk is.

“I have not seen a single project recently where the surety industry has not been able to provide a 100 percent performance and 100 percent payment bond,” said Brach.

Janet Aschkenasy is a freelance financial writer based in New York. She can be reached at riskletters@lrp.com.
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Sponsored: Helmsman Management Services

Six Best Practices For Effective WC Management

An ever-changing healthcare landscape keeps workers comp managers on their toes.
By: | October 15, 2014 • 5 min read

It’s no secret that the professionals responsible for managing workers compensation programs need to be constantly vigilant.

Rising health care costs, complex state regulation, opioid-based prescription drug use and other scary trends tend to keep workers comp managers awake at night.

“Risk managers can never be comfortable because it’s the nature of the beast,” said Debbie Michel, president of Helmsman Management Services LLC, a third-party claims administrator (and a subsidiary of Liberty Mutual Insurance). “To manage comp requires a laser-like, constant focus on following best practices across the continuum.”

Michel pointed to two notable industry trends — rises in loss severity and overall medical spending — that will combine to drive comp costs higher. For example, loss severity is predicted to increase in 2014-2015, mainly due to those rising medical costs.

Debbie discusses the top workers’ comp challenge facing buyers and brokers.

The nation’s annual medical spending, for its part, is expected to grow 6.1 percent in 2014 and 6.2 percent on average from 2015 through 2022, according to the Federal Government’s Centers for Medicare and Medicaid Services. This increase is expected to be driven partially by increased medical services demand among the nation’s aging population – many of whom are baby boomers who have remained in the workplace longer.

Other emerging trends also can have a potential negative impact on comp costs. For example, the recent classification of obesity as a disease (and the corresponding rise of obesity in the U.S.) may increase both workers comp claim frequency and severity.

SponsoredContent_LM“The true goal here is to think about injured employees. Everyone needs to focus on helping them get well, back to work and functioning at their best. At the same time, following a best practices approach can reduce overall comp costs, and help risk managers get a much better night’s sleep.”
– Debbie Michel, President, Helmsman Management Services LLC (a subsidiary of Liberty Mutual)

“These are just some factors affecting the workers compensation loss dollar,” she added. “Risk managers, working with their TPAs and carriers, must focus on constant improvement. The good news is there are proven best practices to make it happen.”

Michel outlined some of those best practices risk managers can take to ensure they get the most value from their workers comp spending and help their employees receive the best possible medical outcomes:

Pre-Loss

1. Workplace Partnering

Risk managers should look to partner with workplace wellness/health programs. While typically managed by different departments, there is an obvious need for risk management and health and wellness programs to be aligned in understanding workforce demographics, health patterns and other claim red flags. These are the factors that often drive claims or impede recovery.

“A workforce might have a higher percentage of smokers or diabetics than the norm, something you can learn from health and wellness programs. Comp managers can collaborate with health and wellness programs to help mitigate the potential impact,” Michel said, adding that there needs to be a direct line between the workers compensation goals and overall employee health and wellness goals.

Debbie discusses the second biggest challenge facing buyers and brokers.

2. Financing Alternatives

Risk managers must constantly re-evaluate how they finance workers compensation insurance programs. For example, there could be an opportunity to reduce costs by moving to higher retention or deductible levels, or creating a captive. Taking on a larger financial, more direct stake in a workers comp program can drive positive changes in safety and related areas.

“We saw this trend grow in 2012-2013 during comp rate increases,” Michel said. “When you have something to lose, you naturally are more focused on safety and other pre-loss issues.”

3. TPA Training, Tenure and Resources

Businesses need to look for a tailored relationship with their TPA or carrier, where they work together to identify and build positive, strategic workers compensation programs. Also, they must exercise due diligence when choosing a TPA by taking a hard look at its training, experience and tools, which ultimately drive program performance.

For instance, Michel said, does the TPA hold regular monthly or quarterly meetings with clients and brokers to gauge progress or address issues? Or, does the TPA help create specific initiatives in a quest to take the workers compensation program to a higher level?

Post-Loss

4. Analytics to Drive Positive Outcomes, Lower Loss Costs

Michel explained that best practices for an effective comp claims management process involve taking advantage of today’s powerful analytics tools, especially sophisticated predictive modeling. When woven into an overall claims management strategy, analytics can pinpoint where to focus resources on a high-cost claim, or they can capture the best data to be used for future safety and accident prevention efforts.

“Big data and advanced analytics drive a better understanding of the claims process to bring down the total cost of risk,” Michel added.

5. Provider Network Reach, Collaboration

Risk managers must pay close attention to provider networks and specifically work with outcome-based networks – in those states that allow employers to direct the care of injured workers. Such providers understand workers compensation and how to achieve optimal outcomes.

Risk managers should also understand if and how the TPA interacts with treating physicians. For example, Helmsman offers a peer-to-peer process with its 10 regional medical directors (one in each claims office). While the medical directors work closely with claims case professionals, they also interact directly, “peer-to-peer,” with treatment providers to create effective care paths or considerations.

“We have seen a lot of value here for our clients,” Michel said. “It’s a true differentiator.”

6. Strategic Outlook

Most of all, Michel said, it’s important for risk managers, brokers and TPAs to think strategically – from pre-loss and prevention to a claims process that delivers the best possible outcome for injured workers.

Debbie explains the value of working with Helmsman Management Services.

Helmsman, which provides claims management, managed care and risk control solutions for businesses with 50 employees or more, offers clients what it calls the Account Management Stewardship Program. The program coordinates the “right” resources within an organization and brings together all critical players – risk manager, safety and claims professionals, broker, account manager, etc. The program also frequently utilizes subject matter experts (pharma, networks, nurses, etc.) to help increase knowledge levels for risk and safety managers.

“The true goal here is to think about injured employees,” Michel said. “Everyone needs to focus on helping them get well, back to work and functioning at their best.

“At the same time, following a best practices approach can reduce overall comp costs, and help risk managers get a much better night’s sleep,” she said.

To learn more about how a third-party administrator like Helmsman Management Services LLC (a subsidiary of Liberty Mutual) can help manage your workers compensation costs, contact your broker.

Email Debbie Michel

Visit Helmsman’s website

@HelmsmanTPA Twitter

Additional Insights 

Debbie discusses how Helmsman drives outcomes for risk managers.

Debbie explains how to manage medical outcomes.

Debbie discusses considerations when selecting a TPA.

SponsoredContent

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This article was produced by the R&I Brand Studio, a unit of the advertising department of Risk & Insurance, in collaboration with Helmsman Management Services. The editorial staff of Risk & Insurance had no role in its preparation.


Helmsman Management Services (HMS) helps better control the total cost of risk by delivering superior outcomes for workers compensation, general liability and commercial auto claims. The third party claims administrator – a wholly owned subsidiary of Liberty Mutual Insurance – delivers better outcomes by blending the strength and innovation of a major carrier with the flexibility of an independent TPA.
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