The Curse of the Black Adder
Disclaimer: The events depicted in this scenario are fictitious. Any similarity to any corporation or person, living or dead, is merely coincidental.
One Fine Fall Day
Aaron Scott watched with pride as his German shorthaired pointer Sadie bulled her way through the switchgrass. Sadie was six, an age when most hunting dogs started to show signs of aging. But Sadie was as heavy in the chest and shoulders as some males, and just as tough.
Then suddenly Sadie was on point, her stub of a tail twitching frenetically. Seconds later, the male bird exploded out of the brush. Aaron swung his grandfather’s over and under Remington up and dropped the bird cleanly. Aaron smiled. It didn’t get any better than this.
Then his phone rang. He had to get it. As the CFO for Pinecrest Food Markets, which had 44 stores in four states, it was part of his job to take calls, all calls.
“This is Aaron,” he said.
“Aaron, it’s Christine.” Christine was Aaron’s older sister and the CEO of the company. Aaron knew that tone in her voice. The news wasn’t good.
“We just got a letter from Spendex that they’ve been hit by malware. It looks like we may have lost credit card numbers for about 600,000 customers.”
Aaron paused and again looked at the scenery and savored the diminishing scent of spent gunpowder. He wished he could turn back the clock to one minute ago, but all that was gone.
“You there?” Christine said.
“I’m here,” Aaron said.
“Can you please get those dogs in the truck and get back to the office? We got work to do.”
Christine preferred jumping horses to bird-hunting. On a fox hunt, she could ride with anyone in the state.
Aaron loved his sister, but he also bore a scar over his right eyebrow where she’d clocked him with a rock when they were preteens.
“I’m comin’. Be there in 30,” Aaron said.
Pinecrest had been founded by Aaron’s grandfather William in an 800-square-foot shop in Johnstown, Pa. It had grown to where it had stores in eastern Ohio, its native western Pennsylvania, West Virginia and the Maryland panhandle.
Aaron and Christine ran it now. The phrase “three generations — shirt sleeves to shirt sleeves,” was how old-timers described how quickly an inherited family business could fall apart. Aaron and Christine had vowed they would prove that old saying wrong.
Back at the office, Aaron read the letter from the credit card transaction processing vendor Spendex. Spendex was reporting that as many as 26 of its regional retail customers lost credit card numbers to The Black Adder, a malware that strips names, credit card numbers and expiration dates from the magnetic stripes of credit cards.
“Now what?” said Christine.
“Well, we’ve got to tell every affected customer what happened and we need to do it soon,” Aaron said.
“How much is that going to cost?” Christine said.
“Quite a bit, but we’ve got insurance for it,” Aaron said as calmly as he could as he looked down at his iPhone and started scrolling through his contacts.
Aaron was playing possum with his cool tone. He was the family peacekeeper and he knew that his role at times like these was to keep a lid on the much more volatile Christine.
Christine exhaled, and Aaron kept his eyes on his iPhone.
Part of the Pinecrest brand came from where it was based and who founded it.
Based as it was in a state that was home to almost a million military veterans, Pinecrest aligned itself with traditional values like patriotism, community, faith and family.
There was a picture of a local veteran who had given his life in armed conflict in every Pinecrest store.
So when it came to the data breach notification, Christine Scott — in what she felt was full alignment with the brand — didn’t shrink from responsibility.
In addition to letters and emails sent to Pinecrest’s 600,000 affected customers, Christine called local news stations to broadcast news of the breach and her promises to make good. She didn’t bother to ask Aaron whether he thought that was a good idea.
“Every one of our customers will be reimbursed for their time and trouble, including a year’s worth of multi-bureau credit monitoring services,” Christine said while the TV cameras recorded her.
“Well that’s what the policy says, doesn’t it?” Christine said when Aaron told her later that she probably shouldn’t have said that on television.
The very next day, a phone call from Pinecrest’s insurance broker was the second bad call Aaron got that month.
“Multi-bureau? No. The policy will cover services from a single credit monitoring bureau,” the broker, Robert Franz, told Aaron.
As Aaron spoke with Robert, he was multitasking and monitoring his emails. He saw an email marked “urgent” from Spendex. It was about the data breach.
“Hey Robert, can I call you back in a few minutes? I’ve got something hopping here,” Aaron said.
“Sure,“ Robert said, but in a tone that implied, “What could be more important than this?”
As it turned out, the email from Spendex was plenty important.
The notice from Spendex explained that although it was obligated to inform all of its customers that there had been a breach, in reality, only 14 of its 26 retail customers had been impacted. The clincher? Pinecrest wasn’t one of them.
Aaron pushed back from his desk and ran his hands through his hair.
“What the … ?” he said as loudly as he would say anything.
“What is it?” said Christine, popping her head into his office. She knew from the volume of Aaron’s voice that it was something big.
“We didn’t lose any data. We didn’t lose any data at all,” Aaron said.
“Great,” Christine said.
“No, not great,” Aaron said. “We just told about a million people that we did.”
“Now what do we do?” Christine asked.
Aaron felt that Christine had burned him before by going on television without seeking his counsel. That experience caused him to dig in his heels with Christine over what to do next.
“Slow down, just slow down,” Aaron said when the siblings met to go over strategy.
“I don’t know that we need to come out with an announcement just yet.”
Aaron’s reaction to his sister’s outspokenness had caused him to miscalculate. A full week went by until Pinecrest announced on its website and with another email blast that its customers had, after all, not been impacted by the Black Adder strike.
The company’s pause in making that announcement was as toxic as a rattlesnake bite.
The local media reacted negatively to the company’s week-long silence. News that the company sat on the knowledge that customers hadn’t lost data made the front pages of the Johnstown Tribune-Democrat and the Wheeling News-Register.
For the first time in its history, Pinecrest was dealing with the full brunt of a hit to its reputation.
The traditional print media was one thing, and no small thing in the markets Pinecrest served. But online commentary, ungoverned by journalistic ethics, pulled no punches. Commentators ridiculed the company for banking on the military sacrifices of previous generations, when it “didn’t have the guts,” in one poster’s vernacular, to tell people the truth.
The company’s broker, Robert Franz, phoned Aaron with even more bad news.
“You’re not covered for any of your breach notification expenses, or for any credit monitoring services,” Robert told Aaron.
“Please tell me why,” Aaron said, keeping his voice low because he was just not in the mood for any spontaneous crisis communications with his older sister.
“Under your policy, you’re only covered for notification and credit monitoring if there was an actual breach,” Robert said.
“No breach, no coverage,” he said.
“So we’re out about a million dollars,” Aaron said flatly. In the regional grocery business, where margins could sometimes be measured in the low single digits, a million dollars was a very big hit.
“I’m afraid so,” Robert said.
Sales at Pinecrest Food Markets were down around 10 percent in all four states that it operated in.
“Might as well shop at Supermart,”a grizzled Korean War veteran told Channel 11 in Charles Town, West Virginia.
With the company down a million out of pocket and with revenue hamstrung, Christine Scott and the rest of the Pinecrest team had some very difficult and expensive decisions to make.
Should they sue Spendex for its shoddy forensics? And what coverage did they have for the costs of that?
Rumors began to circulate in several state capitals that class action lawsuits were being prepared on behalf of the tens of thousands of Pinecrest customers who felt they were caused needless expense and worry because of the bad information Pinecrest put out to begin with.
Grandstanding attorneys general were probably not far behind. Pinecrest was possibly facing legal action on several fronts and it was unclear whether it had the coverage to pay for its defense.
With the world seemingly against them, Christine and Aaron took a day in late November and went to their grandfather’s hunting cabin in Somerset County.
The grouse were out there, but the two of them just sat staring at the fire in the cabin’s stone fireplace, with Aaron’s two bird dogs stretched out in front of the fireplace.
Sadie looked up hopefully as Aaron got up to throw another log on the fire.
“No huntin’ today, Sadie girl. Daddy is not in the mood,” Aaron said as Christine nursed a bottle of local craft-distilled rye.
“May I have some of that, please?” Aaron asked.
“Get your own bottle,” said Christine.
A regional grocery chain gets into hot water after it loses customer financial data. Making matters worse is that the company does not have a good grasp on the language in its cyber coverage policy. The company also suffers reputational damage when it notifies customers based on bad information.
1. Know your partners: Pinecrest sees its problems go from bad to worse because the company it uses to process credit card transactions has shoddy forensics and reports data breaches for customers that in the end had no data breach.
2. Know your coverage: Pinecrest suffers needless losses because key executives don’t understand its insurance policy when it comes to services available under the coverage for data breach notification and credit monitoring.
3. Be as transparent as possible: When it comes to notifying customers of substantial issues that could impact their expenditures, getting out quickly with the best information is extremely important. Pinecrest actually has good news to report midway through this story, but sits on it due to internal friction. The good of the team must clearly win out here.
4. Create realistic expectations: Coverage existed for Pinecrest officials to put together a reasonable response when customer data was lost. But a key executive broadcast inflated statements about what Pinecrest would be able to do, creating equally inflated expectations.
5. Hold vendors accountable: Given the volatile expansion of cyber risk, it makes good sense to require vendors contractually to indemnify you if they lose your crucial customer data.
The issues covered in this scenario center around crisis management and insurance pitfalls associated with loss from a cyber breach. This follow-up webinar focused on specific loss trends and cyber exposures, as well as presented steps to take to strengthen your crisis risk management program.
Brains Not Brawn
Disclaimer: The events depicted in this scenario are fictitious. Any similarity to any corporation or person, living or dead, is merely coincidental.
The scenario begins with the brief video below:
A Grey Area
For five weeks, Mike lives in a grey area populated by denial and tentative healthcare delivery. Mike reports his injury to his employer and is referred to an occupational medicine specialist. The specialist prescribes Vicodin, a pain killer and Naproxen, an anti-inflammatory.
Mike also discusses light duty alternatives with his employer. Mike tries light duty, taking a stab at acting as a carpenter’s assistant, essentially, cleaning up and doing menial work like sweeping up sawdust and chucking small pieces of wood into the dumpster.
Mike is plagued by pain, and acting against the advice of the occupational medicine specialist, he starts taking two to three Vicodin a day on the job to manage. Buffered by the Vicodin, Mike ignores the verbal agreement he has with his employer and begins to use his shoulder harder.
At one point, frustrated with the inaccurate work of an underling, Mike picks up a circular saw and starts making cuts to beams and other hefty pieces of wood.
After six weeks, Mike’s pain hasn’t gotten any better and under pressure from Mike’s employer, Mike’s occupational medicine specialist refers him to an orthopedic specialist.
At the orthopedic surgeon’s office, Mike is sitting on the examination table with the doctor standing before him.
The doctor, a much smaller man than Mike, places his right hand on Mike’s left wrist.
“Okay, try to lift your arm,” the doctor says.
Mike tries to lift his arm with the doctor pushing down against him but is struggling.
“You’re very weak in the shoulder,” the doctor says. “I’m afraid you have a substantial rotator cuff tear but we’ll order an MRI just to be sure,” the doctor says.
“What if it’s torn, what then?” Mike says.
“You’re looking at surgery with a minimum of six months off of work,” the doctor says.
“Six months? Why?” says Mike.
“Rehabilitation from rotator cuff surgery isn’t easy. You could have some setbacks. I’m giving you a conservative estimate,” the orthopedic surgeon says.
“Why operate at all?” says Mike.
“You can’t walk around with a rotator cuff tear in your line of work for any period of time,” the doctor says.
“It’s way too risky for a man your age.”
“I’m only 54, Doc,” Mike says gamely.
“At your age, honestly, you’re going to have to be very diligent in rehab to bring this thing back all the way,” the doctor says, tapping Mike lightly on his injured left shoulder.
The MRI confirms what the doctor felt to be true. Mike has a full thickness tear of his rotator cuff.
“You see that?” the doctor says to Mike as they look at the MRI image together.
“Looks like it’s torn all the way through,” Mike says.
“Yes it is,” the surgeon says. “We need to set a date to operate. And as I said during our last visit, you’re going to have to be diligent in rehab to bring this shoulder back successfully.
A New Reality
As a former high school wrestler and carpenter, Mike is accustomed to injury and injury recovery. It seemed like he recovered from a torn meniscus in his right knee during his wrestling days in a matter of weeks.
In his twenties, he broke a finger in his right hand in a bar fight in Muscatine, Iowa.
In his thirties, he broke the fifth metatarsal bone in his left foot when he rolled his ankle over a log while dove hunting near Lake Okochobee.
Each time he came back fine. Over the years, Mike developed a quiet confidence that his strong body will never fail him.
But one look at Mike as he sits on his living room couch with his left arm in a sling says that this time might be very different. He’s four weeks post surgery and he’s already gained 20 pounds. Post surgery, his doctor gave him a generous prescription of Oxycontin, 80 pills. Mike still has 50 of those pills, a fact he is keeping from his wife and his doctor.
“Really honey?” his wife says as she stands in the living room doorway watching Mike open another beer as he watches a Florida State football game.
There are three finished beers on the coffee table in front of Mike. “What?” Mike says as he takes a sip of beer.
“You know what,” his wife says. “You’ve been drinking a lot more beer since you’ve been off work.”
“Not really,” Mike says.
His wife walks closer to Mike and peers into a pizza box.
“You ate that entire pizza?”
“Thin crust,” Mike says by way of a joke.
His wife pauses, not enjoying the joke.
“Are you still taking painkillers? Because you know you shouldn’t be drinking and taking that prescription.”
“Nah, I dumped ‘em in the garbage. I don’t need ‘em anymore.” Mike says.
“Hummmph,” his wife says, not pleased with the whole picture and seeming to doubt Mike’s word.
“What about your physical therapy exercises that you’re supposed to be doing at home?”
“I’m doin’ ‘em,” Mike says.
“When?” his wife asks him.
Mike glares at his wife and she reacts.
“I know what you’re thinking,” she says, crossing her arms.
“You think I’m being a nag. Well I’ve got news for you Mike Manning. Just because I care enough to ask after your health doesn’t make me a nag!”
As soon as she leaves the room, Mike fishes in his pocket and brings out a vial of pills.
With practiced dexterity, Mike uses his slinged left hand to hold the pill bottle while he wrests the top off with his right. Mike pops a pill in his mouth and washes it down with a slug of beer.
Mike had initially taken the painkillers according to the instructions on the bottle. But two months into his recovery, he’s now ingesting twice that amount on a daily basis.
Back at his doctor’s office, six weeks post-op, Mike’s shirt is off while the doctor checks his range of motion and his strength.
“Okay, stand up and raise your arm as high as you can,” the doctor says.
Mike gamely raises his arm, but he can’t raise his hand above chest height.
“Keep working hard in therapy,” the doctor says. “How’s your pain?”
Mike gives a pain rating of eight over ten. Excess pain behavior.
“Eh, it still hurts, especially when I’m trying to sleep,” he says.
“Okay, we started you on Oxycontin but I’m going to see if you can get by on Vicodin,” the doctor says.
“Sounds good,” Mike says, avoiding eye contact with the doctor. Mike still has a renewal on his Oxycontin and he’s happily envisioning doubling up with Oxycontin and Vicodin even before the doctor has put pen to paper to write him a new prescription.
Mike flexes his knee.
“My right knee has started to hurt too,” Mike says. “Don’t know what’s up with that.”
The doctor looks at Mike as Mike flexes the knee.
“It looks like you’ve picked up a considerable amount of weight since you’ve been off Mike. That could be affecting your knee.”
“Yeah, probably so,” Mike said, patting his gut affectionately.
“How’s rehab going?” the doctor says. “You doing the home exercises they’re giving you?”
“Eh…sure,” Mike says.
From the doctor’s expression, he’s not too convinced.
Six months post-injury, Margorie Kessel, a claims supervisor for Mike’s employer’s workers’ compensation carrier, has a look at Mike’s file and does not like what she sees.
“His opioid use is like a runaway train,” Margorie says to herself.
“I’m going to put a nurse on this case.”
Off the Rails
Nine months post-injury, Mike is at physical therapy, lying on his back while a therapist works on his shoulder.
The physical therapist is holding Mike’s left arm and trying to gain more range of motion by steadily pushing Mike’s shoulder past where it wants to go.
The therapist is straining, and from the expression on his face, even nine months past injury, Mike is experiencing serious pain in the shoulder.
“Wow,” the therapist says.
“You’re as tight now as you were three months ago.”
“I know,” Mike says without much conviction.
The therapist sheds her sweatshirt.
“You’re giving me a workout,” she says. She picks up Mike’s arm again and resumes work.
Just then, another patient shouts out to Mary.
“Hey Mary, can you come over here? I’m not sure what to do on this exercise ball,” the other patient says.
“Sure, just a sec, Mary says.
“Here Mike,” so some work with this hand weight and I’ll be right back.”
The therapist leaves Mike and he continues on with the hand weight.
The therapist comes back.
“Sorry about that. Where were we?” But instead of picking up Mike’s left arm she picks up his right arm.
“It’s the left arm,” Mike says impatiently.
“Oh, right, sorry about that,” the therapist says.
“Okay, let’s see here,” she says, picking up Mike’s left arm.
She strains again, trying to get some motion out of the stiff joint.
She pauses, tuckered out.
“Are you sure you’re doing those home exercises I’ve been giving you?” she says. How many times is he doing it? How many times are you doing it? He can’t remember.
“You’re just not making the progress I’d hoped you would at this point.”
“I’m doin’ ‘em,” Mike says, again, somewhat unconvincingly.
Just then, another patient calls out for help from the overworked therapist.
“Hey Mary, am I doing this leg extension correctly?”
“Um, let me see,” Mary says, as Mike rolls his eyes impatiently.
“Hold on a sec, sorry,” Mary says as she puts Mike’s arm down again.
Mike lies on the table for another couple of minutes as the therapist gets caught up in the other patient’s questions.
Mike looks over to the therapist, working on the other patient.
“That’s it,” he says. “I’m out of here.”
Despite his weight and his gimpy knee, Mike slides off of the table and leaves, limping as he goes.
“Mike! Mike! Where are you going?” Mary says.
“Out! I’m going out of here! I’ve had it!” Mike says.
Three months later, Margorie Kessel is taking another look at Mike’s file.
“So now we’ve got a frozen shoulder. Probably looking at a six-figure settlement for permanent disability. And he’s still at the drugstore,” she says.
“What the heck happened to this claim?”
This scenario was originally presented at the 2014 National Workers’ Compensation and Disability Conference in Las Vegas.
As part of the discussion, panelists discussed key aspects presented in the scenario.
Panelists included Dr. Robert Goldberg, chief medical officer, Healthesystems; and Dr. Kurt Hegmann, Associate Professor, The Rocky Mountain Center for Occupational & Environmental Health. The session was moderated by Tracey Davanport, director, National Managed Care, Argonaut Insurance.
Insights from their discussion are highlighted below:
Healthcare: The Hardest Job in Risk Management
Radically changing cost and reimbursement models.
Rapidly evolving service delivery approaches.
It is difficult to imagine an industry more complex and uncertain than healthcare. Providers are being forced to lower costs and improve efficiencies on a scale that is almost beyond imagination. At the same time, quality of care must remain high.
After all, this is more than just a business.
The pressure on risk managers, brokers and CFOs is intense. If navigating these challenges wasn’t stress inducing enough, these professionals also need to ensure continued profitability.
“Healthcare companies don’t hide the fact that they’re looking to reduce costs and improve efficiencies in practically every facet of their business. Insurance purchasing and financing are high on that list,” said Leo Carroll, who heads the healthcare professional liability underwriting unit for Berkshire Hathaway Specialty Insurance.
But it’s about a lot more than just price. The complexity of the healthcare system and unique footprint of each provider requires customized solutions that can reduce risk, minimize losses and improve efficiencies.
“Each provider is faced with a different set of challenges. Therefore, our approach is to carefully listen to the needs of each client and respond with a creative proposal that often requires great flexibility on the part of our team,” explained Carroll.
Creativity? Flexibility? Those are not terms often used to describe an insurance carrier. But BHSI Healthcare is a new type of insurer.
The Foundation: Financial Strength
Berkshire Hathaway is synonymous with financial strength. Leveraging the company’s well-capitalized balance sheet provides BHSI with unmatched capabilities to take on substantial risks in a sustainable way.
For one, BHSI is the highest rated paper available to healthcare providers. Given the severity of risks faced by the industry, this is a very important attribute.
But BHSI operationalizes its balance sheet in many ways beyond just strong financial ratings.
For example, BHSI has never relied on reinsurance. Without the need to manage those relationships, BHSI is able to eliminate a significant amount of overhead. The result is an industry leading expense ratio and the ability to pass on savings to clients.
“The impact of operationalizing our balance sheet is remarkable. We don’t impose our business needs on our clients. Our financial strength provides us the freedom to genuinely listen to our clients and propose unique, creative solutions,” Carroll said.
Keeping Things Simple
Healthcare professional liability policy language is often bloated and difficult to decipher. Insurers are attempting to tackle complex, evolving issues and account for a broad range of scenarios and contingencies. The result often confuses and contradicts.
Carroll said BHSI strives to be as simple and straightforward as possible with policy language across all lines of business. It comes down to making it easy and transparent to do business with BHSI.
“Our goal is to be as straightforward as we can and at the same time provide coverage that’s meaningful and addresses the exposures our customers need addressed,” Carroll said.
Claims: More Than an After Thought
Complex litigation is an unfortunate fact of life for large healthcare customers. Carroll, who began his insurance career in medical claims management, understands how important complex claims management is to the BHSI value proposition.
In fact, “claims management is so critical to customers, that BHSI Claims contributes to all aspects of its operations – from product development through risk analysis, servicing and claims resolution,” said Robert Romeo, head of Healthcare and Casualty Claims.
And as part of the focus on building long-term relationships, BHSI has made it a priority to introduce customers to the claims team as early as possible and before a claim is made on a policy.
“Being so closely aligned automatically delivers efficiency and simplicity in the way we work,” explained Carroll. “We have a common understanding of our forms, endorsements and coverage, so there is less opportunity for disagreement or misunderstanding between what our underwriters wrote and how our claims professionals interpret it.”
Responding To Ebola: Creativity + Flexibility
The recent Ebola outbreak provided a prime example of BHSI Healthcare’s customer-centric approach in action.
Almost immediately, many healthcare systems recognized the need to improve their infectious disease management protocols. The urgency intensified after several nurses who treated Ebola patients were themselves infected.
BHSI Healthcare was uniquely positioned to rapidly respond. Carroll and his team approached several of their clients who were widely recognized as the leading infectious disease management institutions. With the help of these institutions, BHSI was able to compile tools, checklists, libraries and other materials.
These best practices were immediately made available to all BHSI Healthcare clients who leveraged the information to improve their operations.
At the same time, healthcare providers were at risk of multiple exposures associated with the evolving Ebola situation. Carroll and his Healthcare team worked with clients from a professional liability and general liability perspective. Concurrently, other BHSI groups worked with the same clients on offerings for business interruption, disinfection and cleaning costs.
Ever vigilant, the BHSI chief underwriting officer, David Fields, created a point of central command to monitor the situation, field client requests and execute the company’s response. The results were highly customized packages designed specifically for several clients. On some programs, net limits exceeded $100 million and covered many exposures underwritten by multiple BHSI groups.
“At the height of the outbreak, there was a lot of fear and panic in the healthcare industry. Our team responded not by pulling back but by leaning in. We demonstrated that we are risk seekers and as an organization we can deploy our substantial resources in times of crisis. The results were creative solutions and very substantial coverage options for our clients,” said Carroll.
It turns out that creativity and flexibly requires both significant financial resources and passionate professionals. That is why no other insurer can match Berkshire Hathaway Specialty Insurance.
To learn more about BHSI Healthcare, please visit www.bhspecialty.com.
Berkshire Hathaway Specialty Insurance (www.bhspecialty.com) provides commercial property, casualty, healthcare professional liability, executive and professional lines, surety, travel, programs, and homeowners insurance. It underwrites on the paper of Berkshire Hathaway’s National Indemnity group of insurance companies, which hold financial strength ratings of A++ from AM Best and AA+ from Standard & Poor’s. Based in Boston, Berkshire Hathaway Specialty Insurance has regional underwriting offices in Atlanta, Boston, Chicago, Los Angeles, New York, San Francisco, Toronto, Hong Kong, Singapore and New Zealand. For more information, contact firstname.lastname@example.org.
The information contained herein is for general informational purposes only and does not constitute an offer to sell or a solicitation of an offer to buy any product or service. Any description set forth herein does not include all policy terms, conditions and exclusions. Please refer to the actual policy for complete details of coverage and exclusions.
This article was produced by the R&I Brand Studio, a unit of the advertising department of Risk & Insurance, in collaboration with Berkshire Hathaway Specialty Insurance. The editorial staff of Risk & Insurance had no role in its preparation.