The Law

Legal Spotlight

A look at the latest legal cases impacting the industry.
By: | September 14, 2016 • 4 min read
You Be the Judge

Unhealthy Air Caused Physical Damage

On four nights in July and August, 2013, the Oregon Shakespeare Festival Association cancelled performances at its open-air theater in Ashland. Nearby wildfires impacted air quality and dusted theater surfaces with soot.

R9-15-16p14_LegalSpotlight.inddThe theater filed a claim with its property insurer, Great American Insurance Co., for loss of business income due to building damage.

The insurance company denied the claim, saying there was no physical damage to the property. Therefore, it said, the policy’s business income provisions were not activated.

On June 7, the U.S. District Court for the District of Oregon disagreed.

It rejected the insurer’s argument that damage was not physical, stating that “while air may often be invisible to the naked eye, surely the fact that air has physical properties cannot reasonably be disputed.”

It also rejected the insurance company’s argument that the claim was excluded because the cancellations were voluntary. The court noted the air quality ratings on those days were “unhealthy,” and that a “period of restoration” was needed for repairs, citing the time spent by theater employees changing air filters and cleaning soot and ash from theater surfaces.

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Exclusions for smog or pollutants were rejected as well. There was no evidence “any fog or haze … could have combined [with smoke] to create ‘smog,’ ” the court ruled, and the pollutant exclusion did not apply because it related to restoration due to “enforcement of or compliance with any ordinance or law.”

Scorecard: The court ordered the lawsuit to be tried before a jury to determine the amount of damages.

Takeaway: Damage does not always have to be structural or physical if it renders a property unusable.

Title Insurer May Be on Hook for $2.05 Million Claim

In 2005 and 2006, Johnson Bank purchased two title insurance policies from First American Title Insurance Co. in the total amount of $2.05 million for two parcels for which it loaned money to the property owners. The property owners defaulted on their loan to the bank when it was discovered the land could not be developed commercially.

In 2010, the bank purchased the land at a trustee’s sale for $102,000, and a year later, filed a claim against First American because the title insurer had not revealed the commercial development restrictions.

At dispute was the date on which the damage claim should be based — with the value being $2.05 million or $102,000.

Johnson Bank argued it should be the day the title insurance was issued. The insurer said the damages should be based on the value of the properties when they were foreclosed, arguing that a loss is not incurred until the date of the foreclosure (at which point the real estate market had significantly declined).

The policy language was ambiguous as to when the date of loss should be calculated.

A lower court in Arizona ruled in favor of the insurance company. An appeals court reversed that, deciding that because First American “failed to discover and timely disclose” the restrictions on commercial development, the policy was breached when the loans were made.

On appeal, the Supreme Court of the State of Arizona upheld the latter decision on June 13, although it returned the case to a lower court for further proceedings.

“The insurer has complete control of the title defects against which it insures; it is in the best position to avoid such risks and prevent resulting loss by conducting thorough and accurate title searches,” the court ruled.

Scorecard: The title insurance company may be required to pay $2.05 million to the bank.

Takeaway: Allowing the title insurer to use the foreclosure date would allow it to profit from its defective title in a depreciated real estate market.

Insurer Fails to Win New Trial

On March 13, 2010, brothers Amaury and Amed Villa cut a hole in the roof of an Eli Lilly and Co. warehouse and storage facility in Enfield. Conn. They deactivated the security system and stole more than 40 pallets of pharmaceuticals, valued at about $60 million.

R9-15-16p14_LegalSpotlight.inddEventually both men pleaded guilty to the theft, and National Union Fire Insurance Co. paid out more than $42 million in claims to Eli Lilly.

As subrogee, National Union later filed a negligence suit against Tyco Integrated Security, formerly known as ADT Security Services. Tyco provided the security for the warehouse. National Union accused it of failing to warn Eli Lilly of the security system’s failures.

It also failed to tell Eli Lilly about additional thefts, according to the lawsuit, which also claimed that a Tyco employee knew the thieves.

Tyco said that its employee was distantly related and had “little or no interaction” with them.

A jury concluded on April 4, 2016 that Tyco was not negligent in its protection of “confidential details of Eli Lilly’s security” or in failing to warn the company of previous thefts. It found Amaury and Amed Villa each liable in the amount of $10 million.

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On June 22, the U.S. District Court for the Southern District of Florida denied the insurance company’s request for a new trial or to amend the verdict.

“On the case presented before the jury, the evidence was sufficient to resolve the matter the way it did in favor of Tyco,” the court ruled.

Scorecard: The imprisoned two brothers were ordered to pay $10 million each to the insurance company, but Tyco will not have to pay any damages.

Takeaway: National Union needed to establish a “manifest injustice” occurred for a new trial to be ordered.

Anne Freedman is managing editor of Risk & Insurance. She can be reached at [email protected]
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Transportation

Asleep at the Wheel

Drowsy driving is increasing liability for transportation companies, and increasing commercial auto rates as well.
By: | September 14, 2016 • 5 min read
09152016_10Automotive

Drowsy driving can be just as deadly as drunk driving ­— and the transportation industry is taking steps to combat this sometimes tragic problem.

The National Highway Traffic Safety Administration estimates that 83,000 crashes each year are caused by driver drowsiness. Motor carriers, transportation companies and organizations with their own fleets are acutely aware of the tragedies that driver fatigue can cause, as well as the major financial and other losses that can result.

Michael Nischan, vice president, transportation and logistics risk control,  EPIC Insurance Brokers and Consultants

Michael Nischan, vice president, transportation and logistics risk control, EPIC Insurance Brokers and Consultants

Even if a driver is not at fault in a crash that results in serious injuries or fatalities, ultimately the company’s reputation is at stake, said Michael Nischan, vice president, transportation and logistics risk control at EPIC Insurance Brokers and Consultants in Atlanta.

The company may be ordered to pay for damages, especially if management did not properly vet the driver for a sleep disorder or if the driver’s medical certificate was expired.

“Damages from civil suits may not be covered by insurance, so whether the driver is at fault or not, the costly settlements may ultimately cause a company to go out of business,” Nischan said. “The key is to ensure the driver is qualified before hire and throughout employment, and that requires continuing dialogue and education throughout the organization.”

Rates on the Rise

Crashes involving driver fatigue have also impacted commercial insurance for fleets. Craig Dancer, Marsh’s U.S. transportation industry practice leader in Washington, D.C., said that rates in the insurance market had been soft when carriers were trying to get business and build volume, and underwriting, in some instances, may have been lax.

“So now we’re seeing premiums rise to support the carriers’ level of losses, and some markets have exited the trucking industry,” Dancer said.

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Underwriters wanting to write best-in-class are now looking to see whether organizations are using technology to make sure their drivers are performing optimally, he said. Underwriters are also looking to see if organizations are going down the regulatory checklist on how to deal with sleep apnea.

“The proactive motor carriers and transportation drivers have been addressing sleep apnea for a while now, and they have become really good at vetting drivers and adhering to fatigue management programs,” Dancer said.

Companies are conducting sleep studies and buying CPAP machines for drivers diagnosed with sleep apnea, which can have a huge impact on driver fatigue, said Todd Reiser, vice president and producer with Lockton’s transportation practice in Kansas City, Mo.

“A lot of motor carriers are trying to improve driver wellness, which correlates directly with driver fatigue,” Reiser said. “Truck driving is a sedentary job, and drivers tend to struggle with their health, whether it’s from occupational accidents or weight problems.”

The industry has also encouraged truck stops to provide healthier food alternatives, and trucking companies are implementing these alternatives at their own terminals, as well as exercise facilities, workout rooms, and nurses or physicians onsite to provide check-ups, he said.

Large trucking companies have terminals throughout the country in areas where they have a high concentration of business. Underwriters respond favorably to these types of programs.

Technology Use Increases Safety

Underwriters are also looking for anything from a technology perspective to make drivers safer, such as warning systems if a truck crosses the center line or drives onto the shoulder of the road, Reiser said. There is also collision mitigation technology that will stop or slow vehicles before a crash.

Todd Reiser, vice president, transportation practice,  Lockton

Todd Reiser, vice president, transportation practice, Lockton

Advanced technologies can help identify tired, drowsy or distracted drivers. Canadian-based Fatigue Science makes biometric wristbands that drivers wear, said Rich Bleser, fleet safety specialty practice leader for Marsh Risk Consulting in Milwaukee.

Australian-based Seeing Machines builds dash-mounted sensors with image-processing technology that tracks the movements of a driver’s eye, face, head and facial expressions to detect driver fatigue — and even distraction from doing things like texting.

Seeing Machines also provides in-cab driver alerts to prevent accidents, and 24/7 monitoring and data analytics so employers can improve practices.

The National Safety Council recommends drivers stop every 100 miles and walk around, Bleser said. Keep vehicle temperature cooler and drink ice water, because when the core body temperature is lower, the body’s “internal furnace” kicks in and builds energy to stay alert.

“If drivers are tired, they should not drink caffeine, because even if it makes a person feel that they are awake, caffeine can’t control micro sleep,” he said. “I recommend taking a 10- to 15-minute cat nap, if the driver can find a safe place to park their vehicle.”

Jenn Guerrini, executive commercial auto specialist at Chubb Transportation Liability in Whitehouse Station, N.J., said that driver fatigue can also be a problem for ridesharing companies, as they are not regulated like taxi cab drivers.

“For most of the drivers, this is their second or third job, and there is no regulation on hours of work and fitness of duty,” Guerrini said.

She said some organizations forbid employees to use ridesharing services from 1 a.m. to 4 a.m. while traveling.

For organizations with their own commercial fleets, they should track driving hours automatically in real-time by installing electronic logging devices registered and certified by the Federal Motor Carrier Safety Administration, she said. Such devices will be mandated by the end of 2017.

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Companies should also develop best practices for dispatchers, said Chris Reardon, vice president of transportation, warehousing and logistics practice at Assurance in Schaumburg, Ill.

“People are going to seek to put the fault on the motor carrier as well as the driver, but companies should be managing this issue at the dispatcher level as well because often, that is where hours of service issues originate,” Reardon said.

“Poor dispatching and load planning can lead to drivers feeling pressure from the dispatchers and management to get the trip done, regardless of the time constraints.”

He reminds clients of the widespread public scrutiny and even condemnation that could occur after crashes involving driver fatigue, citing comedian Tracy Morgan, who was hit by a Walmart driver who had been awake for more than 28 hours in 2014.

“There are always going to be drivers who don’t care about regulations, because they want to make the most money running the most miles,” Reardon said. “If the management of a company does not establish a culture of safety and compliance in the office or terminal, it will inevitably trickle down to the drivers as a result.” &

Katie Kuehner-Hebert is a freelance writer based in California. She has more than two decades of journalism experience and expertise in financial writing. She can be reached at [email protected]
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Sponsored Content by Hiscox USA

Your Workers’ Safety May Be at Risk, But Can You See the Threat?

Violence at work is a more common threat than many businesses realize.
By: | September 14, 2016 • 5 min read
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Deadly violence at work is covered extensively by the media. We all know the stories.

Last year, ex-reporter Bryce Williams shot and killed two former colleagues while they conducted a live interview at a mall in Virginia. In February of this year, Cedric Larry Ford opened fire, killing three and injuring 12 at a Kansas lawn mower manufacturing company where he worked. Also in 2015, 14 people died and 22 were wounded by Syed Farook, a San Bernardino, California county health worker, and his wife, who had terroristic motives.

Active shooter scenarios, however, are just the tip of the iceberg when it comes to violence at work.

“Workplace violence is much broader and more pervasive than that. There are smaller acts of violence happening every day that directly impact organizations and their employees,” said Bertrand Spunberg, Executive Risks Practice Leader, Hiscox USA. “We just don’t hear about them.”

According to statistics compiled by the FBI, the chance that any business will experience an active shooter scenario is about 1 in 457,000, and the chance of death or injury by an active shooter at work is about 1 in 1.6 million.

The fact that deadly attacks — which are relatively rare — get the most media attention may lead employers to underestimate the risk and dismiss the issue of workplace violence as media hype. But any act that threatens the physical or psychological safety of an employee or that causes damage to business property or operations is serious and should not be taken lightly.

“One of the core responsibilities that any organization must fulfill is keeping employees safe, and honoring that duty is becoming more challenging than ever,” Spunberg said.

Hiscox_SponsoredContent“Workplace violence is much broader and more pervasive than that. There are smaller acts of violence happening every day that directly impact organizations and their employees. We just don’t hear about them.”
— Bertrand Spunberg, Executive Risks Practice Leader, Hiscox USA

Desk Rage and Bullying: The Many Forms of Workplace Violence

Hiscox_SponsoredContentBullying, intimidation, and verbal abuse all have the potential to escalate into confrontations and a physical assault or damage to personal property. These violent acts don’t necessarily have to be perpetrated by a fellow employee; they could come from a friend, family member or even a complete stranger who wants to target a business or any of its workers.

Take for example the man who killed three workers at a Colorado Spring Planned Parenthood in April. He had no affiliation with the organization or any of its employees, but targeted the clinic out of his own sense of religious duty.

Companies are not required to report incidents of violence and many employees shy away from reporting warning signs or suspicious behavior because they don’t want to worsen a situation by inviting retaliation.  It’s easy, after all, to attribute the occasional surly attitude to typical work-related stress, or an office argument to simple personality differences that are bound to emerge occasionally.

Sometimes, however, these are symptoms of “desk rage.”

According to a study by the Yale School of Management, nearly one quarter of the population feels at least somewhat angry at work most of the time; a condition they termed “chronic anger syndrome.”  That anger can result from clashes with fellow coworkers, from the stress of heavy workloads, or it can overflow from family or financial problems at home.

Failure to recognize this anger as a harbinger of violence is one key reason organizations fail to prevent its escalation into full-blown attacks. Bryce Williams, for example, had a well-documented track record of volatile and aggressive behavior and had already been terminated for making coworkers uncomfortable. As he was escorted from the news station from which he was terminated, he reportedly threatened the station with retaliation.

Solving Inertia, Spurring Action

Hiscox_SponsoredContentMany organizations lack the comprehensive training to teach employees and supervisors to recognize these warning signs and act on them.

“The most critical gap in any kind of workplace violence preparedness program is supervisory inertia, when people in positions of authority fail to act because they are scared of being wrong, don’t want to invade someone’s privacy, or fear for their own safety,” Spunberg said.

Failing to act can have serious consequences. Loss of life, injury, psychological harm, property damage, loss of productivity and business interruption can all result from acts of violence. The financial consequences can be significant. In the case of the San Bernardino shootings, for example, at least two claims were made against the county that employed the shooter seeking $58 million and $200 million.

Although all business owners have a workplace violence exposure, 70 percent of organizations have no plans in place to avoid or mitigate workplace violence incidents and no insurance coverage, according to the National Institute for Occupational Safety & Health.

“Most companies are vastly underprepared,” Spunberg said. “They don’t know what to do about it.”

Small- to medium-sized organizations in particular lack the resources to develop risk mitigation plans.

“They typically lack a risk management department or a security department,” Spunberg said. “They don’t have the internal structure that dictates who supervisors should report a problem to.”

With its workplace violence insurance solution, Hiscox aims to educate companies about the risk and provide a solution to help bridge the gap.

“The goal of this insurance product is not so much to make the organization whole again after an incident — which is the usual function of insurance — but to prevent the incident in the first place,” Spunberg said.

Hiscox’s partnership with Control Risks – a global leader in security risk management – provides clients with a 24/7 resource. The consultants can provide advice, come on-site to do their own assessment, and assist in defusing a situation before it escalates. Spunberg said that any carrier providing a workplace violence policy should be able to help mitigate the risk, not just provide coverage in response to the resultant damage.

“We urge our clients to call them at any time to report anything that seems out of ordinary, no matter how small. If they don’t know how to handle a situation, expertise is only a phone call away,” Spunberg said.

The Hiscox Workplace Violence coverage pays for the services of Control Risks and includes some indemnity for bodily injury as well as some supplemental coverage for business interruption, medical assistance and counseling.  Subvention funds are also available to assist organizations in the proactive management of their workplace violence prevention program.

“Coverage matters, but more importantly we need employees and supervisors to act,” Spunberg said. “The consequences of doing nothing are too severe.”

To learn more about Hiscox’s coverage for small-to-medium sized businesses, visit http://www.hiscoxbroker.com/.

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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 Hiscox USA. The editorial staff of Risk & Insurance had no role in its preparation.




Hiscox is a leading specialist insurer with roots dating back to 1901. Our diverse portfolio includes admitted and surplus products for professional liability, management liability, property, and specialty products like terrorism and kidnap and ransom.
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