Insurer Required to Defend, But Not Indemnify
On July 27, 2005, Alex Sehat, a footwear company employee based in a Kmart store in Hollywood, Fla., helped a Kmart employee get a baby stroller down from a high shelf.
The stroller fell and struck Judy Patrick, a customer, in the face. She later sued Kmart for negligence, on May 17, 2006, but her counsel ultimately discovered that Sehat was actually an employee of Footstar Inc., which operated footwear departments in Kmart stores.
Footstar contacted Liberty Mutual on June 6, 2007 about the incident, and on Jan. 24, 2008, Kmart formally requested defense and indemnification from the carrier. Two days later, Patrick amended her complaint to include Footstar as a defendant.
Liberty Mutual denied defense and indemnification.
After Kmart settled the litigation with Patrick later that year for $300,000 and $10,000 in Kmart gift cards, the retailer filed suit against Footstar and Liberty Mutual for defense and indemnification. A magistrate judge ruled Liberty Mutual and Footstar owed a duty to defend (as of Jan. 24, 2008, when notice was given) and apportioned Footstar’s fault at 15 percent.
The judge also ruled that the insurer did not act in bad faith by denying coverage and Kmart did not breach the notice provisions of the policy. Kmart appealed.
On Feb. 4, 2015, a three-judge panel on the U.S. 7th Circuit Court of Appeals affirmed the duty to defend, but reversed the indemnification ruling. The opinion cited the “master agreement” under which Footstar operated inside Kmart’s stores. That agreement noted that “any injury had to arise ‘pursuant to’ or ‘under’ the Master Agreement to trigger indemnification, and the Master Agreement explicitly prohibited Sehat’s out-of-department action that resulted in the injury.”
It noted, however, that Sehat’s actions were “potentially covered,” and therefore, the insurer had a duty to defend dating to Jan. 24, 2008, when Kmart made an official request for coverage.
Scorecard: The insurance company was required to provide a defense to the retailer, but did not have to contribute to the $310,000 settlement paid in the case.
Takeaway: Because the Footstar employee violated the scope of the company’s agreement with Kmart, the insurer did not have to indemnify the retailer.
Fraud Negates Coverage
On Dec. 21, 1998, Cigna Corp. revamped its retirement plan, converting its traditional defined-benefit plan to a cash-balance plan.
It assured plan participants that the conversion would not affect benefits accrued as of Dec. 31, 1997 and presented the change as “an enhanced benefit.” In 2001, plan participants filed a class-action lawsuit on behalf of about 27,000 employees, and courts have since ruled that such communications were “downright misleading.”
In a separate but related action in 2012, Cigna filed suit against two of its professional liability and fiduciary liability insurers, Executive Risk Indemnity and Nutmeg Insurance Co., seeking coverage. Each of the insurers had issued excess policies of $10 million.
The other primary and excess carriers settled separately.
The Court of Common Pleas of Philadelphia County dismissed the lawsuit, which was then appealed by Cigna to the Pennsylvania Superior Court.
The main issue before the higher court was whether the policy’s “deliberately fraudulent acts” exclusion precluded coverage, as the lower court had ruled in dismissing the case.
Cigna contended that the policy would cover its conduct as a “wrongful act,” defined in the policy to include “any actual or alleged … misstatement, misleading statement, act, omission … .” It argued the wrongful act provision negated the fraudulent acts exclusion.
On Feb. 3, 2015, the state Superior Court disagreed, ruling that the “plain meaning” of the policy in its entirety is contrary to that argument. In addition, the company’s conduct “would clearly qualify as fraudulent under Pennsylvania law,” which requires as a matter of public policy that insurance coverage not be provided for fraudulent acts.
Scorecard: The insurance companies are not required to indemnify the company up to the $20 million total excess coverage.
Takeaway: Fraudulent activity bars insurance coverage.
Insurer vs. Insurer
On Aug. 15, 2010, before an International Kart Federation race event at the Grand Junction Motor Speedway in Colorado, a 9-year-old go-karter was killed during a practice event when his go-kart collided with a maintenance/recovery vehicle.
The parents sued the Speedway, its employees, the International Kart Federation (which was the sanctioning body for the race event) and others in state court. Mt. Hawley Insurance Co. defended IKF as its insured, and Speedway and its employees as additional insureds.
On June 24, 2013, Mt. Hawley filed suit against National Casualty Co., which provided commercial general liability coverage to members of the National Karting Alliance (NKA). Speedway was a member of the NKA.
The policy covered bodily injury, property damage and personal and advertising injury liability “caused, in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf … .”
National Casualty denied coverage, saying the Speedway and its employees did not qualify as additional insureds under the NKA policy. In court, it sought a summary judgment.
The U.S. District Court for the District of Colorado ruled that a summary judgment was warranted, basing its decision on the key term of “acting on your behalf” found in the policy. It cited case law that determined that coverage was not available when a member’s acts are “for his own private actions done for his own pleasure” or “completely personal and voluntary” actions.
“Although Speedway had liability insurance through NKA’s policy, Speedway acted voluntarily and for its own benefit on the day of the accident and not at the direction, request, or benefit of NKA,” the court ruled on Jan. 30, 2015.
Scorecard: National Casualty Co. did not have to contribute a pro rata share of Mt. Hawley’s defense costs incurred on behalf of Speedway.
Takeaway: Merely being a member of an organization will not trigger the organization’s insurance coverage.
Scrambling for Cover
School districts have been forming insurance purchasing pools for decades to trim their premium rates, and the trend is accelerating as they face financial pressure from hobbled state and municipal budgets, new state laws and the Patient Protection and Affordable Care Act (ACA).
Even though the trend is accelerating, pooling faces a number of challenges. For example, some rural districts’ attempts to create or join a pool may be frustrated by carrier-imposed size requirements.
Scott R. Baldwin, managing director of the public sector practice, Arthur J. Gallagher & Co., said some “big carriers” that dominate the health care insurance market in rural areas decline to insure small- and mid-size districts that could benefit from joining or forming purchasing pools.
A district that joins a pool may not be able to find coverage in its region, even with the same carrier that covered it on a stand-alone basis. Most carriers will fully insure a school district with as few as 20 employees on a stand-alone basis.
“It may not be in the best financial interest of insurance companies to participate in coalition planning,” Baldwin said. It makes financial sense for the districts, however, especially those with proper stop-loss coverage and adequate funding. But once a district joins a pool, a carrier may drop its coverage — and all of the other districts in that pool.
“It may not be in the best financial interest of insurance companies to participate in coalition planning.” — Scott R. Baldwin, managing director, public sector practice, Arthur J. Gallagher & Co.
The cutoff for health care coverage, Baldwin said, is at about 150 covered lives for pools. At 150 and above, most major carriers are willing to provide stop loss, PPO network access and claim administration services to pools. Not all states permit joint purchasing agreements, and those that do impose stiff regulations on their operation, Baldwin said.
Another challenge for school districts is that changing carriers can be challenging.
Mobility between carriers can be somewhat restricted for California school districts, even those that are fairly large, said Deb Mangels, senior vice president of employee benefits and founding principal of ABD Insurance and Financial Services. Due to industry-standard marketing and underwriting guidelines, a school district can be “handcuffed” to the giant managed care consortium Kaiser Permanente.
This reflects a combination of demographics and logistics. A significant number of public employees residing in the heavily populated regions of California receive health care from Kaiser through the California Public Employees’ Retirement System (CalPERS). But Mangels said underwriting data for small- to mid-sized pools is hard to come by.
“Getting claims data out of Kaiser for groups under 5,000 is nearly impossible,” Mangels said, and without good information on a group’s claims experience, prospective carriers are unable to project future claims costs either as a stand-alone district or as part of a pool.
With more than 1,000 school districts and more than 144,000 teachers in California, plus their families and more than 250,000 eligible retirees, health care programs and associated costs are a “huge” issue, Mangels said.
Cadillac Tax Driving Change
The ACA imposes yet another challenge for school districts. The High-Cost Employer-Sponsored Health Coverage Excise Tax provision of the ACA — the “Cadillac tax” — pressures public school teachers to shoulder more of the costs of their historically generous health care benefits.
When it takes effect in 2018, the Cadillac tax will impose a 40 percent levy on individual health plans above $10,200 for individuals and $27,500 for family coverage, with both employer and worker contributions included. The tax applies to both insured and self-funded plans.
Mangels sees preparing school districts and unions for the ramifications of the Cadillac tax as an essential part of the broker’s role. Education of union reps is particularly important.
“If they aren’t comfortable with information we provide, they won’t communicate it to their members accurately,” Mangels said.
John Abraham, director of worker benefits and capital strategies for the American Federation of Teachers (AFT), said the quality of health care plans has not diminished among unionized school districts, but notes “a big push” among employers to higher deductible plans because doing so helps them avoid the Cadillac tax.
However, fewer than 5 percent to 10 percent of teachers currently choose that option. Most older, experienced teachers with families opt for traditional HMOs and PPOs.
“Benefits have eroded to the extent that teachers contribute more to premiums and pay higher deductions.” — Mike Nault, executive director, human resources, Oshkosh Area School District
Where states have been aggressive in reforming benefit packages for schoolteachers, the results have been mixed.
Three and a half years after the passage of Act 10 in Wisconsin, the Oshkosh Area School District struggles to maintain teachers’ health care benefits and give them pay raises that at least keep up with cost of living increases.
“Benefits have eroded to the extent that teachers contribute more to premiums and pay higher deductions,” said Mike Nault, executive director of human resources, Oshkosh Area School District.
The law requires state employees to pay at least 12.6 percent of the average cost of annual premiums, and it requires changes in plan design to reduce current premiums by 5 percent. Wisconsin is considering switching from its HMO model to self-insurance.
The passage of Act 10 also requries districts to go to bid for health care insurance, rather than specifying carriers. “The competition made the carriers sharpen their pencils,” Nault said. “We get a fairly decent product at a lower price.”
Although many teachers are reconciled to paying more of their health care insurance costs, many are pushing back at what they perceive as an assault on their benefits, pay and general respect.
Sandi Fisher, a 5th grade teacher at a public school in the depressed Kensington neighborhood of Philadelphia, said she can’t make an appointment with some of her medical providers because they’ve opted out of her Keystone HMO plan.
Still, she said, “no one’s complaining about making contributions. It’s everything else they’re taking away.” The district doesn’t reliably provide classroom supplies, such as paper. And it wants teachers to give back up to 13 percent of their salaries to the district in addition to taking the cuts in benefits.
“No one’s complaining about making contributions. It’s everything else they’re taking away.” —Sandi Fisher, teacher, School District of Philadelphia
Relations between the School District of Philadelphia and the Philadelphia Federation of Teachers are so acrimonious that the district’s School Reform Commission voted last fall to cancel the union contract and impose new health care terms on the union. In a victory for the union, the Pennsylvania
Commonwealth Court ruled on Jan. 22 that the district may not restructure the collective bargaining agreement between the teachers union and the school district, sending the warring parties back to the negotiating table.
The discord in the Philadelphia system is “indicative of what’s going on in the country,” although that is magnified by the large size of the metropolitan school district, said Baldwin.
For school districts that use substitute teachers, their hours present a challenge under the ACA.
Historically, said Dr. Frank Vail, director of insurance services, South Carolina School Boards Association, substitute teachers didn’t get benefits, but under the ACA, they do if they work enough hours to be considered full-time workers.
“The problem is how to track and keep records,” he said, since several recordkeeping formulas apply.
“Some districts have contracted out substitute teaching to companies like Kelly so they don’t have to deal with it.”
Others, said Abraham of the AFT, have cut teachers’ hours to avoid the mandate to offer insurance to full-time employees. “That wasn’t the intention of the mandate. Where employers don’t work with us on ways to mitigate the impact of the employer mandate, it’s a mess.”
Wellness programs are a more welcome cost-cutting strategy, both for health care, and worker’s compensation insurance and claims, which are a school district’s biggest insurance cost, according to Michael McHugh, area senior executive vice president, public and nonprofit division, Arthur J. Gallagher & Co.
For example, many Wisconsin districts have implemented health risk assessments and introduced on-site or near-site clinics, a convenient, lower-cost form of health care.
Wisconsin’s Act 10 requires health risk assessments aimed at participant wellness and collection of data related to assessing the quality and effectiveness of health care providers.
Daniel Wolak, president, Union Labor Life Insurance, sees a trend to freestanding, on-site clinics staffed by full-time doctors and nurses, such as the ones in Wisconsin.
“These clinics act as gatekeeper,” he said, directing teachers to pricier specialists only when necessary. They also free up the teachers’ own doctors to spend more time with their patients when they make office visits.
The push for wellness, however, introduces privacy concerns, Abraham said.
“Individuals worry when employers ask about their health status. They ask, ‘Will I get fired because I’m using health care benefits? Will my premium go up?’ ”
And then there are administrative decisions: Penalties or incentives? An additional $50 on premiums for employees who don’t do the health screens or a $50 gift card for those who do?
“All districts want to take care of their kids’ teachers. … There’s no one-size-fits-all solution.” — Norman Reisman, retired benefits consultant, multiemployer funds
Insurance companies, working with school districts, unions or coalitions, can adjust plan design to trim premium costs, said Norman Reisman, a recently retired benefits consultant with more than 40 years of health care insurance experience in multiemployer funds. Pharmacy benefits are “the fastest-growing chunk of health care spend,” he said.
Plans can save money by encouraging the use of generics and incenting mail order instead of retail prescriptions. These small moves save “a lot” of money. Plans can also require greater member contributions and tighten up eligibility requirements, Reisman said.
“All districts want to take care of their kids’ teachers,” Reisman said, but federal and state laws, the prevailing culture and the district’s financial health all play a role.
“There’s no one-size-fits-all solution,” he said.
A Modern Claims Philosophy: Proactive and Integrated
According to some experts, “The best claim is the one that never happens.”
But is that even remotely realistic?
Experienced risk professionals know that in the real world, claims and losses are inevitable. After all, it’s called Risk Management, not Risk Avoidance.
And while no one likes losses, there are rich lessons to be gleaned from the claims management process. Through careful tracking and analysis of losses, risk professionals spot gaps in their risk control programs and identify new or emerging risks.
Aspen Insurance embraces this philosophy by viewing the data and expertise of their claims operation as a valuable asset. Unlike more traditional carriers, Aspen Insurance integrates their claims professionals into all of their client work – from the initial risk assessment and underwriting process through ongoing risk management consulting and loss control.
This proactive and integrated approach results in meaningful reductions to the frequency and severity of client losses. But when the inevitable does happen, Aspen Insurance claims professionals utilize their established understanding of client risks and operations to produce some truly amazing solutions.
“I worked at several of the most well known and respected insurance companies in my many years as a claims executive. But few of them utilize an approach that is as innovative as Aspen Insurance,” said Stephen Perrella, senior vice president, casualty claims, at Aspen Insurance.
“We do a lot of trending and data analysis to provide as much information as possible to our clients. Our analytics can help clients improve upon their own risk management procedures.”
— Stephen Perrella, Senior Vice President, Casualty Claims, Aspen Insurance
Utilizing claims expertise to improve underwriting
Acting as adviser and advocate, Aspen integrates the entire process under a coverage coordinator who ensures that the underwriters, claims and insureds agree on consistent, clear definitions and protocols. With claims professionals involved in the initial account review and the development of form language, Aspen’s underwriters have a full sense of risks so they can provide more specific and meaningful coverage, and identify risks and exclusions that the underwriter might not consider during a routine underwriting process.
“Most insurers don’t ever want to talk about claims and underwriting in the same sentence,” said Perrella. “That archaic view can potentially hurt the insurance company as well as their business partners.”
Aspen Insurance considered a company working on a large bridge refurbishment project on the West Coast as a potential insured, posing the array of generally anticipated construction-related risks. During underwriting, its claims managers discovered there was a large oil storage facility underneath the bridge. If a worker didn’t properly tether his or her tools, or a piece of steel fell onto a tank and fractured it, the consequences would be severe. Shutting down a widely used waterway channel for an oil cleanup would be devastating. The business interruption claims alone would be astronomical.
“We narrowed the opportunity for possible claims that the underwriter was unaware existed at the outset,” said Perrella.
Risk management improved
Claims professionals help Aspen Insurance’s clients with their risk management programs. When data analysis reveals high numbers of claims in a particular area, Aspen readily shares that information with the client. The Aspen team then works with the client to determine if there are better ways to handle certain processes.
“We do a lot of trending and data analysis to provide as much information as possible to our clients,” said Perrella. “Our analytics can help clients improve upon their own risk management procedures.”
For a large restaurant-and-entertainment group with locations in New York and Las Vegas, Aspen’s consultative approach has been critical. After meeting with risk managers and using analytics to study trends in the client’s portfolio, Aspen learned that the sheer size and volume of customers at each location led to disparate profiles of patron injuries.
Specifically, the organization had a high number of glass-related incidents across its multiple venues. So Aspen’s claims and underwriting professionals helped the organization implement new reporting protocols and risk-prevention strategies that led to a significant drop in glass-related claims over the following two years. Where one location would experience a disproportionate level of security assault or slip & fall claims, the possible genesis for those claims was discussed with the insured and corrective steps explored in response. Aspen’s proactive management of the account and working relationship with its principals led the organization to make changes that not only lowered the company’s exposures, but also kept patrons safer.
World-class claims management
Despite expert planning and careful prevention, losses and claims are inevitable. With Aspen’s claims department involved from the earliest stages of risk assessment, the department has developed world-class claims-processing capability.
“When a claim does arrive, everyone knows exactly how to operate,” said Perrella. “By understanding the perspectives of both the underwriters and the actuaries, our claims folks have grown to be better business people.
“We have dramatically reduced the potential for any problematic communication breakdown between our claims team, broker and the client,” said Perrella.
A fire ripped through an office building rendering it unusable by its seven tenants. An investigation revealed that an employee of the client intentionally set the fire. The client had not purchased business interruption insurance, and instead only had coverage for the physical damage to the building.
The Aspen claims team researched a way to assist the client in filing a third-party claim through secondary insurance that covered the business interruption portion of the loss. The attention, knowledge and creativity of the claims team saved the client from possible insurmountable losses.
Modernize your carrier relationship
Aspen Insurance’s claims philosophy is a great example of how this carrier’s innovative perspective is redefining the underwriter-client relationship. Learn more about how Aspen Insurance can benefit your risk management program at http://www.aspen.co/insurance/.
Stephen Perrella, Senior Vice President, Casualty, can be reached at Stephen.email@example.com.
This article is provided for news and information purposes only and does not necessarily represent Aspen’s views and does constitute legal advice. This article reflects the opinion of the author at the time it was written taking into account market, regulatory and other conditions at the time of writing which may change over time. Aspen does not undertake a duty to update the article.
This article was produced by the R&I Brand Studio, a unit of the advertising department of Risk & Insurance, in collaboration with Aspen Insurance. The editorial staff of Risk & Insurance had no role in its preparation.