THE PLANET PROTECTING - SPECIAL REPORT - Business Insurance

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THE PLANET PROTECTING - SPECIAL REPORT - Business Insurance
COST CONTROL: More states tap social workers to treat comp claimants - PAGE 4

                                                                        MARCH 2023

                                                                    SPECIAL
                                                                     REPORT
                                                                     CAPTIVE
                                                                  INSURANCE
                                                                          PAGE 18

                                            PROTECTING
                                            THE PLANET
                                                Firms expand ESG focus
                                              to include biodiversity risks
                                               amid regulatory changes
                                                        PAGE 14
THE PLANET PROTECTING - SPECIAL REPORT - Business Insurance
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THE PLANET PROTECTING - SPECIAL REPORT - Business Insurance
PRESIDENT
Steve Acunto
(Greenwich)
sa@businessinsurance.com

                                                                                                                                                                                   COVER STORY
CHIEF OPERATING OFFICER
Stephen Acunto
(Princeton)
stephen@businessinsurance.com

PUBLISHER
                                                                                                                                                                                   As biodiversity risks emerge as
Keith Kenner                                                                                                                                                                       a new area of environmental,
(Chicago)
kkenner@businessinsurance.com
                                                                                                                                                                                   social and governance
                                                                                                                                                                                   concern for organizations,
EDITOR
Gavin Souter                                                                                                                                                                       insurers are responding with
(Chicago)                                                                                                                                                                          coverages that can help
gsouter@businessinsurance.com
                                                                                                                                                                                   restore natural ecosystems
DEPUTY EDITOR                                                                                                                                                                      and protect the businesses
Claire Wilkinson
(New York)                                                                                                                                                                         and communities that
cwilkinson@businessinsurance.com                                                                                                                                                   depend on them. PAGE 14
ASSISTANT EDITOR
Louise Esola
(New Orleans)
lesola@businessinsurance.com

                                                        INSIDE
NEWS EDITOR
John Obrecht
(Chicago)
jobrecht@businessinsurance.com

SENIOR REPORTER

                                                                                                          SPECIAL REPORT: CAPTIVE INSURANCE
Judy Greenwald
(San Jose)
jgreenwald@businessinsurance.com

REPORTER
                                                                                                          As commercial insurance rates for lines such as property and cyber liability have
Jon Campisi
(Philadelphia)                                                                                            soared over the past two years, captive owners are increasingly using the vehicles to
jcampisi@businessinsurance.com                                                                            fill in gaps in higher layers of programs. PAGE 18
REPORTER
Matthew Lerner
(New York)
mlerner@businessinsurance.com
                                                                                                             NEWS ANALYSIS                       SOCIAL WORKERS IN COMP
                                                                                                                                                 States are taking steps to make it simpler for licensed
COPY EDITOR
Brian Gaynor                                                                                               FOR BREAKING NEWS                     clinical social workers to treat injured workers. PAGE 4
(Portland)                                                                                                   COVERAGE, VISIT
bgaynor@businessinsurance.com
                                                                                                          businessinsurance.com                  COMMERCIAL AUTO OUTLOOK
ART DIRECTOR                                                                                                                                     Higher damage claims and soaring verdicts continue to
Jeremy Werling
(Cincinnati)                                                                                                                                     drive up commercial auto insurance rates. PAGE 6
jwerling@businessinsurance.com

DIRECTOR OF RESEARCH,                                                                                                                            INTERNATIONAL
PLANNING AND INSIGHTS
Andy Toh
                                                                                                                                                 Saudi Arabia’s insurance market is evolving as the
(Chicago)                                                                                                                                        government encourages consolidation. PAGE 10
atoh@businessinsurance.com

MAJOR ACCOUNTS DIRECTOR -
NORTHEASTERN U.S. & INTERNATIONAL
Ron Kolgraf
                                                                    PERSPECTIVES
(Boston)
rkolgraf@businessinsurance.com
                                                                    In anticipation of federal restrictions on                                         VIEW FROM
HEAD OF EVENT SALES,
REPRINTS & LICENSING
                                                                    noncompete agreements, companies should
                                                                    consider alternatives, writes Eric Meyer of
                                                                                                                                                         THE TOP
Susan Stilwill
(Nashville)                                                         FisherBroyles LLP. PAGE 29
sstilwill@businessinsurance.com

VICE PRESIDENT OF MARKETING                                                                                                                      GEOF
Brian McGann
(Buffalo)                                                                                                OFF BEAT                                McKERNAN
bmcgann@businessinsurance.com                                                                            Dolly Parton just says                  Geof McKernan,
                                           LEGAL BRIEFS                                                                                          CEO NSM Insurance
VICE PRESIDENT OF DIGITAL                                                                                no to social media
MARKETING/COMMUNICATIONS                   Recent court opinions PAGE 12
                                                                                                         claims she endorses                     Group, co-founded
Jen Jonasson
                                                                                                         marijuana-based                         the company in 1990.
(Chicago)
jjonasson@businessinsurance.com
                                           MARKET PULSE                                                                                          Since then, it has
                                           Products, deals and more PAGE 27                              products. PAGE 31
DIGITAL AD OPERATIONS MANAGER                                                                                                                    developed into a
Zeina Alwafai                                                                                                                                    specialty managing
(Memphis)                                  OPINIONS
zalwafai@businessinsurance.com                                                                                                                   general agent offering
                                           Hard markets lead to changes; abortion
                                                                                                                                                 a wide range of programs. Last year, the Conshohocken,
DIRECTOR, CONFERENCES & EVENTS             and med mal PAGE 28
Brittany Collins                                                                                                                                 Pennsylvania-based company was sold to Carlyle Group
(Lafayette)
                                                                                                                                                 Inc. in a deal that valued it at $1.78 billion. Mr. McKernan
bcollins@businessinsurance.com             PEOPLE
                                                                                                                                                 discusses the deal’s impact on NSM’s strategy and the state
MARKETING COORDINATOR                      Insurance industry moves PAGE 30
Jessica Evangelista                                                                                                                              of the specialty insurance market. PAGE 13
(Washington)
jevangelista@businessinsurance.com
                                     BUSINESS INSURANCE (ISSN 0007-6864) Vol. 57, No. 4, Copyright © 2023 by Business Insurance Holdings, Inc. is published monthly by Business Insurance Holdings, Inc., 1030 Lake Avenue,
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                                                                                                                                                               BUSINESS INSURANCE                       MARCH 2023             3
THE PLANET PROTECTING - SPECIAL REPORT - Business Insurance
NEWS ANALYSIS

             States put social workers to task in comp
          BY LOUISE ESOLA
    lesola@businessinsurance.com
                                                                                                                                                     “We can diagnose and provide therapy.
                                                                                                                                                     With the field approaching 200,000
S
    everal states are taking steps to address
    shortages of qualified mental health
    professionals in workers compensation
                                                                                                                                                     nationwide, social workers are critical
by making it simpler for licensed clinical                                                                                                           to improving access to treatment.”
social workers to help injured workers.
                                                                                                                                                     Sarah Hathaway,
  California enacted a law in 2022 clearing
                                                                                                                                                     Axiom Medical Consulting LLC
the red tape for licensed clinical social
workers to treat in the workers compen-
sation system, and New York, after passing
a law in 2020 that cleared some hurdles, is                                                                                                          ment of death in the larger sense; loss of
considering legislation that would modify                                                                                                            function is a form of bereavement,” Ms.
the requirements.                                                                                                                                    Schwartzman Levy said, adding that link-
  Maryland lawmakers for the second year                                                                                                             ing mental issues and physical injuries has
in a row are considering a bill that would                                                                                                           long been a part of what licensed clinical
allow licensed clinical social workers to                                                                                                            social workers are called on to do. “The
treat injured workers. Under existing law,                                                                                                           biopsychosocial model is at the core of our
Texas allows licensed clinical social work-                                                                                                          belief system and training,” she said.
ers to assist with vocational rehabilitation.   clinical social workers to          AVAILABLE                      practice and past president         A major difference in the professions
  The term social worker is often misinter-     treat under workers comp          PROFESSIONALS                    of the New York chapter of        of licensed clinical social worker and
preted, which may explain why more states       makes sense, as they can            In 2020, New York began
                                                                                                                   the National Association of       psychologist is pay. “Just look at the fee
haven’t caught on to the trend of letting       manage many of the same             allowing licensed clinical     Social Workers. Both states       schedules,” said Mr. Debus, who called
them treat injured workers, experts say.        issues typically handled by          social workers to treat       have “some of the strictest       social workers “underpaid.”
  “When people think of social workers,         psychologists.                   injured workers. Proponents       requirements for becoming           The Centers for Medicare and Medicaid
they often think of case managers —               “Licensed clinical social      of doing so nationwide point      a licensed clinical social        Services’ fee schedules, on which many
those in child welfare or hospitals, or         workers have as much               to the availability of social   worker,” she said.                workers compensation fee schedules are
helping with applications for various           post-graduate experience             workers compared with           Ms. Schwartzman Levy            based, has clinical social workers’ reim-
services,” said Sarah Hathaway, a Grand         as licensed psychologists in     psychologists as the primary      spent much of her career          bursements at 75% of what is paid to a
Rapids, Michigan-based licensed clinical        New York,” he said. “They         reason to make the change.       working in public hospitals       psychologist, according to a 2021 report
social worker and director of behavioral        have to meet a certain              LICENSED CLINICAL              in New York, including            by the National Association of Social
health for Axiom Medical Consulting             level of supervised clinical         SOCIAL WORKERS                as a trauma unit clinical         Workers.
LLC, which provides services for the            expertise, basically, and              IN NEW YORK                 supervisor. The connection          Jennifer Cogbill, Frisco, Texas-based

                                                                                        27,021
comp industry.                                  direct treatment. It’s similar                                     between physical injury           senior vice president of GB Care with
  “We do all of that. But social work is        to that of the licensed psy-                                       and mental injury has been        Gallagher Bassett Services Inc., said many
a much broader field,” she said. “We can        chologist requirement.”                                            well-established, she said,       psychologists are unwilling to work at the
diagnose and provide therapy. With the            California is another state            LICENSED                  pointing to literature going      Medicare rates, which has led to a short-
field approaching 200,000 nationwide,           where many of the require-            PSYCHOLOGISTS                back to 2001 regarding            age of medical professionals in the work-
social workers are critical to improving        ments for both fields are              IN NEW YORK                 injuries and the “biopsy-         ers comp field. Licensed clinical social

                                                                                        11,533
access to treatment.”                           similarly stringent, accord-                                       chosocial model,” a term          workers could help make services more
  Mark Debus, Chicago-based clinical            ing to Marcia Schwartzman                                          now widely used in workers        available to injured workers, she said.
manager of behavioral health with Sedg-         Levy, a Larchmont, New                                             comp circles.                       “The advantage is there is a wider net-
wick Claims Management Services Inc.,           York-based licensed clini-             Source: New York State
                                                                                                                     “I deal with bereavement,       work of professionals they can tap into,”
said the move toward permitting licensed        cal social worker in private           Education Department        which is not just bereave-        she said.

 MOVES HELP CLOSE GAP IN MENTAL HEALTH PROVIDER SHORTAGES

P   rovider shortages in mental health
    are a major issue that extends beyond
    workers comp, experts say.
  The Health Resources and Services
Administration, which tracks available
                                                treatment have only worsened in many
                                                ways,” said Sarah Hathaway, a Grand
                                                Rapids, Michigan-based licensed clinical
                                                social worker and director of behavioral
                                                health for Axiom Medical Consulting
                                                                                                    supported the California bill.
                                                                                                      “If there is an opportunity to expand
                                                                                                    access, as long as they can work within
                                                                                                    the scope of the workers compensation
                                                                                                    program, we are definitely advocates
providers, says 37% of the U.S.                 LLC. “Caseloads are completely full.”               and are willing to put our resources
population lives in areas with mental             The shortages are what drove                      on that expansion,” he said.                     vice president of behavioral health with
health provider shortages and that              the policy changes in California in                   Part of the cause of the shortage is that      Axiom Medical in Chattanooga, Tennessee.
the country needs an additional 6,398           2022, according to proponents.                      “many mental health providers — including          Mr. Kertay noted “there is a problem
mental health providers to fill the gaps.         “There’s a shortage across the board,             psychiatrists, psychologists, and social         with mental health providers being
  “Many people find it hard to access           across the country in behavioral health             workers — are reluctant to treat injured         well-trained in providing psychotherapy,
behavioral health treatment for a variety       (providers),” said Julian Roberts,                  workers in the work comp system because          but by and large not having training
of reasons … (and) while the increased use      Atlanta-based president and CEO of                  of perceived difficulty of getting paid, which   in issues related to return to work or
of virtual services through the pandemic        the American Association of Payers,                 actually doesn’t fit with my experience,”        evaluating occupational capacities.”
has been a positive shift, wait times for       Administrators and Networks, which                  said Les Kertay, a psychologist and senior                                       Louise Esola

4    MARCH 2023       BUSINESS INSURANCE
THE PLANET PROTECTING - SPECIAL REPORT - Business Insurance
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THE PLANET PROTECTING - SPECIAL REPORT - Business Insurance
NEWS ANALYSIS

               Commercial auto insurance rates rise
              as outsize jury awards, inflation add up
       BY MATTHEW LERNER                                                                                                                      news reports. The award included $900
    mlerner@businessinsurance.com                                                                                                             million in punitive damages.
                                                                                                                                                In November 2021, a jury in Texas

T
     he commercial auto insurance sector                                                                                                      rendered a total award of $730 million to
     has been fighting a decade-long,                                                                                                         the survivors of Toni Combest, a 73-year-
     uphill battle — achieving underwrit-                                                                                                     old great-grandmother who was killed in
ing profitability only once in the past 10                                                                                                    a 2016 collision with an oversize cargo
years despite consistent rate hikes — and                                                                                                     truck hauling a propeller for a U.S. Navy
pressures on buyers and insurers show                                                                                                         nuclear submarine.
little sign of waning.                                                                                                                          The Combest jury awarded $480 mil-
  Rising repair and replacement costs have                                                                                                    lion in compensatory damages and $250
led to higher physical damage claims, but                                                                                                     million in punitive damages in the case,
sources say liability losses, driven in large                                                                                                 Ramsey et al. v. Landstar Ranger Inc. et al.
part by rising jury awards and so-called
nuclear verdicts, pose a greater challenge.
  Inflation, supply chain issues and a
                                                                                                                                              “The inflated cost of doing the same
drought of available labor have also
added to costs and lengthened repair
                                                                                                                                              repairs, providing the same medical
times, triggering ancillary costs such as
temporary car rental or other alternative
                                                                                                                                              treatment, is running near or
transportation expenses.                                                                                                                      above double digits in commercial
  After a profitable 2021 for commercial
auto liability insurers, hopes for 2022 have      “The inflated cost of doing the same       Mr. Carlson said.                                auto in most books of business.”
faded. According to data and informa-           repairs, providing the same medical treat-     Labor is also an issue, mirroring short-       Chris Kopser,
tion gleaned from statutory filings, 2022       ment, is running near or above double        falls in the broader economy.                    Axa XL
will likely show an industry aggregate          digits in commercial auto in most books        Nicole McMurtry, Oak Brook, Illi-
commercial auto combined ratio above            of business,” Mr. Kopser said. “What         nois-based national transportation verti-
100% — signaling an underwriting loss           that means is unless you get that amount     cal leader at USI Insurance Services LLC,
— according to James Auden, Chica-              in your book every year, your loss ratio     said she has fleet clients that have raised        In another high-profile case, a crash
go-based managing director of insurance         will get worse, because you’re not getting   wages for diesel mechanics 50% to 75% in         involving a Walmart Inc. truck and
at Fitch Ratings Inc. The commercial            enough premium to cover the project-         order to attract and keep qualified labor.       actor-comedian Tracy Morgan in June
auto loss ratio is up “quite a bit,” he said.   ed losses.”                                  “You might have the parts, but you don’t         2014 is widely believed to have cost the
                                                  Manuel Padilla, vice president, risk       have the staff to repair all the vehicles        retailer some $100 million, according
                                                management and insurance, at MacAn-          requiring service,” she said.                    to reports.
“We are seeing social inflation                 drews & Forbes Inc., manages a fleet of        Similarly, truck drivers are also in short       The American Transportation Research
on the liability side driving up                executive autos that renewed in July 2022,
                                                and he is beginning his 2023 renewals
                                                                                             supply as many older truckers retire and
                                                                                             are not replaced or change jobs to work
                                                                                                                                              Institute studied information on 600
                                                                                                                                              cases between 2006 and 2019. In the first
loss costs and combined ratios, and             process. “We expect that the rates are       and drive closer to home.                        five years of the data studies, there were
                                                going to increase yet again,” he said.         Even though physical damage costs are          26 cases over $1 million, and in the last
insurers are responding with rate.”               Mr. Padilla, who is also on the board      rising, sources said increased liability costs   five years there were nearly 300 cases.
                                                of the Risk & Insurance Management           — in the form of settlements, litigation         The number of verdicts over $10 million
Nick Saeger,
                                                Society Inc., said that except for 2021      and judgments — are by far the larger            nearly doubled.
Sentry Insurance
                                                “it wasn’t uncommon to see 20%, 30%,         cost component and challenge faced by              ATRI also documented that from 2010
                                                40% increases in premium,” annually. He      the commercial auto sector.                      to 2018, the size of verdicts grew 51.7%
                                                added that he is exploring the use of a        The outsize settlement numbers dwarf           annually. Standard inflation grew 1.7%
  Loss cost pressures have put upward           captive in preparation for the upcoming      an increased frequency of five-figure auto       annually and health care costs increased
pressure on commercial insurance rates,         renewal.                                     repair bills, sources say.                       2.9% annually over the same period.
which have been rising and continue to            Inflation, supply chain constraints and      “ We are seeing social inflation on              Mr. Kopser of Axa XL said that although
do so. The third quarter of 2022 marked         greater use of technology have added         the liability side driving up loss costs         such large awards exceed policy limits,
the 45th consecutive quarter — or more          costs to physical damage losses.             and combined ratios, and insurers are            they set a mark for future cases. “Today’s
than 11 years — of increased premiums             Dave Carlson, Cleveland-based U.S.         responding with rate,” said Nick Saeger,         ceiling is tomorrow’s floor,” he said.
for commercial auto, according to the           auto and manufacturing practice leader       associate vice president of products and           He added that excess casualty limits
Council of Insurance Agents and Brokers.        for Marsh LLC, said, “The components         pricing in Stevens Point, Wisconsin, for         have been substantially curtailed, with
  “We’ve gotten double-digit rate every         in cars today are more costly.”              Sentry Insurance.                                lead umbrella lines of typically $25 mil-
quarter since 2019 mid-year,” said Chris          For example, a bumper, formerly just         In one high-profile case, a Nassau             lion now offered in smaller chunks of $15
Kopser, chief underwriting officer, pri-        a piece of steel, has “morphed” into an      County, Florida, jury awarded damages of         million or $10 million, with some as small
mary casualty, Americas, for Axa XL, a          injection molded, integrated piece of        more than $1 billion in a 2021 wrongful          as $5 million, and that towers previously
division of Axa SA. Included in Axa XL’s        equipment, supporting sensors, lenses,       death case in a crash involving a truck in       as high as $1.2 billion can only assemble
business are large fleets with large deduct-    and other technology. “A bumper is           Melissa Dzion v. AJD Business Services           $800 million. “You couldn’t build a tower
ibles, such as national retailers.              much more expensive than it ever was,”       and Kahkashan Carrier, according to local        that big today,” he said.

6    MARCH 2023       BUSINESS INSURANCE
THE PLANET PROTECTING - SPECIAL REPORT - Business Insurance
CATALYTIC CONVERTER THEFTS PROMPT LEGISLATION, LOSS CONTROL ACTION

A    spike in catalytic converter thefts has
     caught the attention of the insurance
     sector and legislators, who are moving
to take measures against the rising incidence.
  Risk management efforts can also mitigate
                                                 Kevin Shumate, Ostrander, Ohio-based vice
                                                 president, U.S. loss adjusting services, at
                                                 Crawford & Co. “Stealing catalytic convert-
                                                 ers has been an issue in the U.S. for some
                                                 time, but thefts are on the increase in Aus-
                                                                                                     Auto manufacturers, fleet owners and in-
                                                                                                   dividual operators can take steps to mitigate
                                                                                                   the exposure.
                                                                                                     “People are warned to park in secure
                                                                                                   locations, consider alarms and sensors, and
                                                                                                                                                       Modern diesel engines in medium and
                                                                                                                                                     heavy-duty trucks use diesel exhaust fluid
                                                                                                                                                     to improve emissions and an aftertreatment
                                                                                                                                                     system, which means they don’t have a
                                                                                                                                                     catalytic converter. Aftertreatment systems
the threat and challenge potential thieves,      tralia, Asia and the U.K.”                                to consult with their manufacturer        are made up of a diesel particulate filter
experts say.                                       The popularity of larger sport                              around steps to make theft more       and diesel oxidation catalyst, according to
  According to the National Insurance Crime      utility vehicles has played into                                 difficult,” Mr. Shumate said.      Larry Harlow, director of claims for Sentry
Bureau, claims for stolen catalytic convert-     the hands of criminals.                                              The converter itself can       Insurance in Stevens Point, Wisconsin.
ers soared 325% to 14,433 in 2020, the most        “They often target sport                                         be altered for identification       “While the function of reducing emissions
recent year for which figures are available,     utility vehicles because their                                      purposes, and devices such      is the same, most aftertreatment systems
up dramatically from just 3,389 in 2019 and      ground clearance is sufficient                                     as covers and steel plates can   don’t contain the metals that make the cat-
1,298 in 2018.                                   for the thief to gain access to                                   be used to frustrate theft.       alytic converters so valuable,” he said.
  Catalytic converters, which are parts of car   the converter without having                                       “Parking vehicles in locked        The problem has also caught the eye of
exhaust systems, reduce harmful emissions        to deploy a jack, and that saves                             garages or fenced yards is ideal. If   legislators.
from internal combustion engines. They are       time,” Mr. Porfilio said.                                this is not available, then leaving ve-      “Some states are implementing greater
targets for theft because they use precious        Dave Carlson, Cleveland-based U.S auto          hicles in well-lighted areas is recommended.      enforcement and tracking systems, which
metals, including platinum, palladium and        and manufacturing practice leader for Marsh       Services are now available to etch the VIN        hopefully will inhibit this type of theft,” Mr.
rhodium, in the process. Late last month,        LLC, said larger vehicles also have larger        onto the catalytic converter, which can help      Porfilio said.
platinum was selling for nearly $1,060 an        converters potentially worth more. “People        recover the part if stolen,” Mr. Porfilio said.     In October 2022, New York Governor
ounce, palladium for $1,770 per ounce, and       find it easy to take a catalytic converter. All     Auto manufacturers, which may have hun-         Kathy Hochul announced several actions
rhodium for $12,350 an ounce, according to       you need basically is a hacksaw and if you        dreds or thousands of cars on a lot, are “very    to increase catalytic converter theft en-
Money Metals Exchange, offering a compel-        have an electric device or saw you can do it      aware of the exposure,” Mr. Carlson said,         forcement in high-theft areas by targeting
ling bounty for thieves.                         in a minute,” he said.                            and have security protocols in place to deter     unauthorized and illegal vehicle dismantlers,
  “The presence of those metals is what            Hybrid vehicles are also targeted because       theft of all types. “Theft has been an issue      or “chop shops.” She also signed legislation
drives catalytic converter thefts, as they can   the more limited frequency of the convert-        at large original equipment manufacturers,        that imposes restrictions on the purchase,
easily bring anywhere from $20 to $240 in        er’s use — it is only used when the gas en-       so they’ve been very in tune with theft for       sale and possession of catalytic converters
recycling value depending on the amount          gine is engaged — leaves the metals inside        decades,” he said.                                by vehicle dismantlers and scrap processers.
and type of precious metal they contain,” said   less degraded and of higher value, he said.         Claims for catalytic converter thefts are         According to the National Conference of
Dale Porfilio, chief insurance officer for the     “Industry sources suggest that hybrid ve-       often below the threshold of deductibles on       State Legislatures, 12 states enacted bills in
Insurance Information Institute in New York.     hicles and SUVs are targeted predominantly.       the commercial coverage for large vehicle         2021 addressing catalytic converter thefts,
  The problem is growing and spreading.          The Toyota Prius is ranked among the top          fleets, he said.                                  at least 20 states enacted 25 bills in 2022,
  “The frequency of these claims has             10 most targeted cars in the country,” Mr.          Emerging technology is also helping re-         and “the trend is likely to continue in 2023.”
increased over the past 18 months,” said         Shumate said.                                     duce the exposure for diesel vehicles.                                          Matthew Lerner

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THE PLANET PROTECTING - SPECIAL REPORT - Business Insurance
NEWS ANALYSIS

     D&O challenges remain for private companies
    as economic uncertainty continues, layoffs rise
        BY JUDY GREENWALD                                                                                                                      to bankruptcy filings,” she said.
    jgreenwald@businessinsurance.com                                                                                                             Many clients have been able to “embrace
                                                                                                                                               some of the trouble of the pandemic” and
NEW YORK — The economy is continuing                                                                                                           have turned into “pretty sophisticated”
to present significant, still unresolved,                                                                                                      companies, said Cathy Padalino, Wash-
challenges for private company directors                                                                                                       ington-based senior vice president at
and officers, including the ongoing threat                                                                                                     Aon PLC.
of bankruptcy, experts say.                                                                                                                      However, there have been “tremendous”
  At one time or another, private com-                                                                                                         restrictions to capital that have not been
panies have had to cope with issues                                                                                                            seen in a decade, said Gregg Glick, San
including inflation, labor shortages,                                                                                                          Francisco-based senior vice president, pri-
higher interest rates and the supply                                                                                                           vate/health care division, at Allied World
chain, said Sandra Lagana, Hartford,                                                                                                           Insurance Co., pointing in particular to
Connecticut-based private D&O product                                                                                                          overleveraged companies in the software
manager for Travelers Cos. Inc. Each of                                                                                                        and health care sectors.
these is relevant, “and a lot of uncertainty                                                                                                     “Unfortunately, I do fear it’s a long
continues to exist in the economy, and this     by downsizing or closing operations,           their doors, others have restructured their     road ahead, with a lot more bankruptcies,
makes it especially challenging for private     delaying or shying away from other ave-        supply chains by in some cases moving           shutdowns, layoffs and a contraction of
businesses,” she said.                          nues of growth, “and, unfortunately, you       their manufacturing facilities closer to        capital,” he said.
  Ms. Lagana was among the speakers             may find that some companies will look         home or adding or changing suppliers,             Discussing claims trends, session mod-
who addressed how private companies are         to cut corners by not updating or perhaps      she said. Others have turned to technol-        erator Ivan J. Dolowich, co-managing
adapting to economic conditions during          not following all of their policies and        ogy and innovation to address economic          partner with Kaufman Dolowich &
a session at the Professional Liability         procedures,” Ms. Lagana said.                  threats, she said, warning that if these        Voluck LLP in Woodbury, New York, said
Underwriting Society’s D&O symposium              “Certainly, some organizations will be       moves are not well executed, they could         while COVID-related claims have not
in February. Speakers said that private-        more likely to default on loan payments        give rise to claims.                            materialized as expected, the market is now
company D&O policyholders range                 and still others may be in a position where      While the paycheck protection program         seeing claims around return-to-work and
from small mom-and-pop businesses               they end up having to file for bankruptcy,”    has been successful, at least temporarily, in   discrimination issues. There has also been
to unicorns, private companies that are         she said.                                      keeping businesses open, and some orga-         a pickup in regulatory claims, as well as
valued at more than $1 billion.                   Often these responses are along indus-       nizations have shut their doors without         under the Illinois Biometric Information
  There are several approaches companies        try lines, Ms. Lagana said. While certain      needing to file for bankruptcy, “we’re not      Privacy Act and the Telephone Consumer
can take to address these issues, including     businesses, such as restaurants, have shut     quite out of the woods yet, when it comes       Protection Act, he said.

           Experts weigh cyber risks, need for federal backstop
        BY JUDY GREENWALD                       rest of that so the insurance industry can                                                     could be a cyberattack that results in an
    jgreenwald@businessinsurance.com            survive … it’s a wonderful thing.”                                                             impact that would be similar to a war
                                                  Mr. Gittler spoke during one of several                                                      event. And how you define that is a long

H
    aving the federal government help if        wide-ranging sessions on cyber issues.                                                         road and takes a lot of thought around
    there is a cyber-related catastrophe is       During a session on the state of the                                                         how you address that,” said Robert Wice,
    a good idea, but only if it is restricted   cybermarket, Courtney Maugé, Atlanta-                                                          underwriter, large risk errors & omissions,
to serving as a backstop in a situation that    based senior vice president and cyber                                                          for the Beazley Group in Farmington,
threatens the insurance industry’s survival,    practice leader for NFP Corp., said cyber                                                      Connecticut.
said a speaker at the Professional Liability    pricing is “where it needs to be to remain                                                       “But for the sustainability of this
Underwriting Society’s cyber symposium          profitable. But we’re all a little bit hesi-                                                   marketplace, to ensure that we contain
in February.                                    tant” because of ransomware.                                                                   any sort of volatility as best we can,” it is
  “We’re the ones with the expertise, not         “We know that we haven’t seen it as                                                          critical to get all stakeholders involved,
those who work for the government,” said        much from a frequency perspective, but                                                         he said.
Jeremy Gittler, New York-based head of          we do know the severity can still be there,”                                                     D uring a session on reinsurance,
cyber and technology-Americas at Axa            she said.                                      ford, Connecticut-based Trium Cyber             Simon Welton, executive vice president
XL, a unit of Axa SA, during a session on         Ms. Maugé questioned whether this            U.S. Services, Inc. However, he said the        at London-based cyber underwriting
cyber market capacity constraints.              lull is because “they’re busy in Russia or     additional capital’s impact may be limited      company Envelop Risk, said, “If there is
  “We don’t want a situation where they’re      Ukraine,” and “it’s all going to come back     because the various players are “not all        one improvement that I see,” it is “that
saying … you can only deploy this much          really hard.”                                  competing in the same space.”                   this line of business feels a lot more col-
capacity, you have to get this much rein-         Additional capacity coming into the            Panelists wrestled with the question          laborative across the whole value chain.”
surance,” he said. “None of us want that.”      market from traditional insurers as well as    of addressing war risk in cyber policies          There is “a dialogue and there’s a will-
  “But if it is a true backstop that — after    managing general agencies and insurtechs       during a session on war, widespread             ingness to share what we can,” which is
whatever number you want to pick — the          “is probably going to have an effect on        events and systemic risk.                       “really important because we’re all learn-
government will come in and take up the         rate,” said Josh Ladeau, CEO of Hart-            “Let’s just own up to the fact that there     ing something new,” he said.

8     MARCH 2023       BUSINESS INSURANCE
THE PLANET PROTECTING - SPECIAL REPORT - Business Insurance
NEWS ANALYSIS

     Updating medical fee schedules takes balance
             BY JON CAMPISI
     jcampisi@businessinsurance.com
                                                                                                                                                                               ESTABLISHING
                                                                                                                                                                               RATES VARIES

M                                                                                                                                                                                BY STATE
      edical inflation is a top concern in work-
      ers compensation this year and adjusting
      medical fee schedules may be one way to
address rising costs, although the appetite for
change is limited, comp experts say.
  While some states have introduced legisla-
tion to overhaul their schedules, variations in
                                                                                                                                                                               S    tates with medical fee
                                                                                                                                                                                    schedules in workers
                                                                                                                                                                                    compensation typically
                                                                                                                                                                               base their rates on Medicare,
                                                                                                                                                                               a reimbursement strategy
costs among states illustrate the complexity of                                                                                                                                that reflects problematic past
the issue, they say.                                                                                                                                                           systems and modern-day
  Forty-four states and Washington, D.C.,                                                                                                                                      constraints, experts say.
have workers comp medical fee schedules.                                                                                                                                         Many states lack the funds
  While the fee schedules are intended to                                                                                                                                      to undertake the research
curb medical costs, George Furlong, chief            Association of Payers, Administrators and                              higher medical costs,” said Griffin Murphy,        necessary to devise fee
strategy officer for Sarasota, Florida-based         Networks and also on the WCRI Disability                               policy analyst with the Washington-based           schedules that are “meaningful
medical bill review company Accuro Solu-             and Medical Management Program Advisory                                National Academy of Social Insurance. “If          for their particular state,”
tions, described a balancing act.                    Board. “Designed properly, a fee schedule                              employees get better treatment when they           hence the reliance on basing
  “If you have no fee schedule your provider         should provide enough incentive for a pro-                             have control over their treating physician,        schedules on Medicare, said
costs are very high,” he said. “If your fee sched-   vider to treat an injured worker with a high                           however, higher medical costs might be             Kent Spafford, a board member
ule is low, you’re starting to lose providers.”      quality of care.”                                                      offset by lower indemnity benefits and better      of the American Association
  Most fee schedules pay doctors what they             Fees for different medical services can affect                       return-to-work outcomes.”                          of Payers, Administrators and
would receive through private insurance or           injured worker outcomes, said Jason Beans,                               An attempt to institute fee schedules has        Networks and the Workers
Medicare, Mr. Furlong said, and many states’         CEO and founder of Chicago-based Rising                                been viewed as interfering with employer           Compensation Research
fee schedules are based on Medicare (see             Medical Solutions, which provides medical                              rights and causes “significant opposition,” Mr.    Institute’s Disability and
related story).                                      cost containment services to comp insurers                             Murphy said.                                       Medical Management
  Raji Chadarevian, executive director of            and employers.                                                           Other mechanisms could work, according to        Program Advisory Board.
actuarial research for the Boca Raton, Florida-        Professional services fee schedules that get                         Mr. Murphy, who said that with rising med-           Mr. Spafford said medical
based National Council on Compensation               “too aggressive” in trying to keep fees low                            ical inflation, insurers charge higher comp        inflation, a top comp industry
Insurance, co-authored a report released last        could mean fewer physicians treating comp                              premiums. Employers can increase workplace         concern, should be cause for
month that showed that during the past decade,       patients, he said.                                                     safety measures and lobby state legislators to     updating medical fee schedules.
non-fee schedule states saw doctor fees grow at        “In Illinois, it took forever to get a fee                           heighten standards for comp claim approval,          Medicare, because it is
a faster rate than the national average.             schedule, and, even when we got it, it wasn’t                          he said.                                           subject to budgets and
  “In general, non-fee schedule states tend          very aggressive,” Mr. Beans said of the fee                              “Both of these may effectively reduce claims     political maneuvering, does
to reimburse the same service at a relatively        schedule implemented in 2011.                                          and thus serve as protection against increasing    not necessarily change its
higher amount,” Mr. Chadarevian said.                  Illinois lawmakers in January introduced                             medical fees,” he said.                            rates based on medical
  States without physician services medical          House Bill 1548, which would void existing                               Fee schedules are effective when they            inflation, he said.
fee schedules are Indiana, Iowa, Missouri,           fee schedules after Aug. 31, 2024, and require                         recognize market prices and are updated to           Stacy Jones, senior research
New Hampshire, New Jersey and Wisconsin.             the Workers’ Compensation Commission to                                reflect changes in medical treatment or billing    analyst with the California
Some of these states have pharmacy, hospital         establish new fee schedules by Sept. 1, 2024.                          practices, Mr. Chadarevian said.                   Workers’ Compensation
and ambulatory surgery center fee schedules.           It’s unclear whether employers in states                               Mr. Beans said “fee schedules have to be         Institute, said California hasn’t
  Many states have amended their fee sched-          without schedules pay more in total costs.                             written in a way that they do not create neg-      seen significant medical
ules since 2019, according to a June 2022              In Wisconsin, where there is no fee sched-                           ative incentives, to either limit access to care   treatment fee schedule changes
Workers Compensation Research Institute              ule, “employees have more control over their                           or to change treatment patterns … or billing       recently and that the “basic
report. Many update their fee schedules in           treating physician, which might contribute to                          patterns,” he said.                                medical treatment fee schedule
accordance with laws that require fee sched-                                                                                                                                   is very straightforward.”
ules to be re-examined, but changes vary.                WORKERS COMPENSATION FEE SCHEDULE INDEX                                                                                 Many states’ fee schedules,
  Maryland, New York, Pennsylvania and                   COMPARED WITH PROVIDER EXPENSE INDEX (MARCH 2022)                                                                     including California’s, were
Texas had double-digit percentage increases             Higher workers compensation rates in some states do not always correlate with higher Medicare rates, and               historically based on the
between 2019 and 2022.                                  some states with high provider expenses have some of the lowest comp medical fee schedules, according to               average cost of medical
                                                        a June 2022 report from the Workers Compensation Research Institute.
  While a majority of states have fee sched-                                                                                                                                   services but this led to
ules, the percentage paid compared with                                           200                                                                                          problems, she said, which is
Medicare varied from 5% below in Massa-                                                 ■ Medicare ■ Workers compensation                                                      why many states now base
                                                     Index (median state = 100)

                                                                                  175
chusetts to 163% above in Nevada, the WCRI                                                                                                                                     fee schedules on Medicare.
report said.                                                                      150                                                                                            Fee schedules were
  States with some of the highest provider                                                                                                                                     historically based on “usual
expenses — including California, Hawaii,                                          125                                                                                          and customary” physician
New York and Massachusetts — had some of                                                                                                                                       charges, but that definition
                                                                                  100
the lowest fee schedule reimbursement rates                                                                                                                                    created issues in many
in the country.                                                                    75                                                                                          states since what providers
  Some stakeholders are calling for change.                                                                                                                                    charged and what they were
  “I think you’ve got to go back to, what’s the                                    50                                                                                          actually paid for didn’t always
purpose of the fee schedule?” said Kent Spaf-
                                                                                        AR
                                                                                        MS
                                                                                         ID
                                                                                        NE
                                                                                        TN
                                                                                        KY
                                                                                        OK
                                                                                         KS
                                                                                        WV
                                                                                         SC
                                                                                         AL
                                                                                         LA
                                                                                        UT
                                                                                        NM
                                                                                        ME
                                                                                        NC
                                                                                        OH
                                                                                        GA
                                                                                        AZ
                                                                                        SD
                                                                                        ND
                                                                                        MN
                                                                                         TX
                                                                                        MI
                                                                                        OR
                                                                                         VT
                                                                                        VA
                                                                                        WY
                                                                                        PA
                                                                                        MT
                                                                                         FL
                                                                                        DE
                                                                                        NV
                                                                                        CO
                                                                                         IL
                                                                                        WA
                                                                                        MD
                                                                                         HI
                                                                                         CT
                                                                                        MA
                                                                                        CA
                                                                                        NY
                                                                                        DC
                                                                                        AK

                                                                                                                                                                               equate, Mr. Spafford said.
ford, who is a board member of the American             Source: Workers Compensation Research Institute (WCRI)                                                                                       Jon Campisi

                                                                                                                                                                  BUSINESS INSURANCE         MARCH 2023       9
THE PLANET PROTECTING - SPECIAL REPORT - Business Insurance
INTERNATIONAL

     PROFILE: SAUDI ARABIA
                                                                                                                                                                        MARKET
                                                                                                                                                                        DEVELOPMENTS
                                                                                                                                                                        Updated January 2023
                                                                                                                                                                        ■	Even prior to the outbreak
                                                                                                                                                                          of the COVID-19 pandemic,
                                          Before the enactment of the Cooperative Insurance                                                                               progress toward achieving the

      39
                                          Companies Control Law of 2003, the Saudi insurance                                                                              key performance metrics of the
                                          market was largely unregulated, and insurance had no                                                                            government’s long-term economic
                                          formal legal status. The market went through an initial                                                                         strategy, “Vision 2030,” had
                                          transition phase as insurance companies were licensed                                                                           significantly stalled. It had been
                                          and supervised in a stricter regulatory environment.                                                                            hoped that Vision 2030 would
                                          The second phase of development involved regulatory                                                                             provide the impetus to diversify
                                          reform, including the issuance of anti-money                                                                                    and grow the economy and, as a
                                          laundering, reinsurance, broking, actuarial work,                                                                               result, the insurance sector. The
                                          outsourcing and risk management regulations. The                                                                                pandemic put further pressure on
                                          current phase of development involves establishing                                                                              the economy, which, with previous
                                          and encouraging best practices in crucial areas such                                                                            poor results in auto and medical
                                          as underwriting and claims handling. Saudi Central                                                                              insurance — the two largest
                                                                                                                                                                          market sectors — severely threated
         GLOBAL                           Bank, the market regulator, has pursued a strategy to
                                                                                                                                                                          insurance companies. Despite the
                                          encourage consolidation. To date there have been six
       P/C MARKET
        RANKING
                                          mergers, while two companies have exited the market.                  AREA                                                      recent recovery in global oil prices
                                                                                                                                                                          and Saudi finances, further market

                                                                                                                830,000
                                          There are effectively 25 companies in the market
                                          today; all but two write nonlife business.                                                                                      consolidation looks highly likely.
                                                                                                                                                                        ■	As a result of the poor auto
          MARKET SHARE                                                         PROPERTY                                                                                   experience and ongoing adverse
                                                                                 5.7%                                                                                     medical business, the solvency
                       MISC.                                                                                    square miles                                              position of several companies
                       3.9%                                                                                                                                               remains compromised. The Saudi
                                                                                            AUTO                                                                          Central Bank (SAMA) took steps
           CONSTRUCTION                                                                                                                                                   to force several players in the
                                                                                            20.2%
           & ENGINEERING                                                                                                                                                  market to improve their capital
                2.5%
                                                                                                                POPULATION                                                position. Two companies left the
                                                                                                                                                                          market, and others have found it

                                                                                                                35.4
             MARINE,
                                                                                                                                                                          difficult to survive due to how the
            AVIATION &
                                                                                                                                                                          market is currently structured,
             TRANSIT
               5.4%                                                                                                                                                       regulated and operated.
                                                                                                                                                                        ■	SAMA released a circular on Oct.
                                                                                                                million                                                   26, 2022, requiring a mandatory
             PA & HEALTH CARE                                                                                                                                             reinsurance cession to the local
            WRITTEN BY NONLIFE                                                                                                                                            market. The requirement is for the
                COMPANIES                                                                                                                                                 local insurance market to have
                   62.3%
                                                                                                                                                                          a mandatory cession of at least
                                                                                                                MARKET CONCENTRATION                                      20% of all reinsurance treaties —
                                                                                                                                                                          proportional and nonproportional.

                                                                                                                60.05%
          MARKET GROWTH                                                                                                                                                   This will increase to 25% in 2024
          In millions, U.S. dollars
                                                               Life          Nonlife      PA & Health                                                                     and 30% in 2025.
           $7,000                                                                                                                                                       ■	The latest version of the
                                                                                                                                                                          Cooperative Insurance Companies
           $6,000                                                                                               market share of top three insurers                        Control Law, issued by SAMA
                                                                                                                                                                          on Sept. 1, 2021, states that the
           $5,000                                                                                                                                                         minimum share capital of any
                                                                                                                                                                          insurance or reinsurance company
           $4,000                                                                                                                                                         within Saudi Arabia shall be SAR
           $3,000                                                                                               2023 GDP CHANGE                                           300mn ($80 million).
                                                                                                                (PROJECTED)                                             ■	SAMA announced on Nov. 14,

                                                                                                                2.6%
           $2,000                                                                                                                                                         2021, that it had approved a new
                                                                                                                                                                          insurance product designed to
           $1,000                                                                                                                                                         provide coverage of driverless
                                                                                                                                                                          vehicles and related risks.
                $0
                          2017             2018              2019             2020        2021
             Source: Axco Global Statistics/Industry Associations and Regulatory Bodies

                 COMPULSORY INSURANCE                                                            NONADMITTED                            INTERMEDIARIES                      MARKET PRACTICE
                 ■	Auto third-party bodily injury and property damage insurance                 By law insurers must be locally        Brokers and agents are              Little nonadmitted insurance
                                                                                                 licensed to carry on insurance         required to be authorized           is practiced in Saudi Arabia.
                 ■	Workers compensation (state scheme)
                                                                                                 business in Saudi Arabia. The          to do insurance business            Companies can seek written
                 ■	Professional indemnity for brokers, reinsurance                              regulations refer solely to            and can place business only         permission to place business
                     brokers, insurance agencies, actuaries, loss assessors/                     licensed insurance companies           with insurers licensed to           in a nonadmitted market
                     adjusters, claims settlement/third-party administrators,                    and intermediaries and make            operate in Saudi Arabia,            in cases where no local
                     insurance advisers and insurance aggregators                                no mention of insurance buyers.        with some exceptions.               coverage can be sourced.
                 ■	Liability of air carriers and aircraft operators for                         This is generally interpreted
                     third-party property damage or injury to third parties                      to mean that insurers can
                     on the ground, as well as injury to passengers and                          issue policies from abroad if
                     damage to baggage or goods being transported                                approached by a buyer, but                                           Information provided by Axco.
                                                                                                 unlicensed insurers may not
                 ■	Shipowners liability for marine oil pollution                                solicit business.                                                        For free trial access to
                     (financial guarantee or insurance)                                                                                                               global insurance intelligence,
                                                                                                                                                                           visit axcoinfo.com.

10   MARCH 2023       BUSINESS INSURANCE
SOMETIMES TO
HAVE MORE
FREEDOM YOU
NEED MORE
CONTROL

                We protect your people
                through global employee
                benefits programmes
                wherever they are

                MAXIS GBN, a Private Limited Company with a share capital of €4,650,000, registered with ORIAS under number 16000513, and with its registered office at 313, Terrasses
                de l’Arche – 92727 Nanterre Cedex, France, is an insurance and reinsurance intermediary that promotes the MAXIS Global Benefits Network. MAXIS GBN is jointly owned
maxis-gbn.com   by affiliates of AXA France Vie and Metropolitan Life Insurance Company and does not issue policies or provide insurance. MAXIS GBN operates in the UK through UK
                establishment with its registered address at 1st Floor, The Monument Building, 11 Monument Street, London EC3R 8AF, Establishment Number BR018216 and in other
                European countries on a services basis. MAXIS GBN operates in the U.S. through MAXIS Insurance Brokerage Services, Inc., with its registered office located at c/o Katten
                Muchin Rosenman LLP, 50 Rockefeller Plaza, New York, NY, 10020-1605, a NY licensed insurance broker.
LEGAL BRIEFS
                                                 refused to honor a required 30-day notice
                                                 period and made claims of unfair treat-
                                                 ment and discrimination against Lockton
                                                                                                stubs and computers. She argued that a
                                                                                                new claim accrued each time she scanned
                                                                                                her fingerprints and White Castle sent
                                                                                                                                                        DOCKET
                                                 “as leverage to obtain a release from her      her biometric data to a third-party.
                                                 commitment not to solicit Lockton cus-           White Castle argued that claims accrue
                                                 tomers and other restrictions.” Lockton        only once, when the biometric data is
                                                 imposes a four-year restrictive noncom-        initially collected or disclosed, and said
                                                 pete on partners.                              class-wide damages could total more than
                                                   Lockton alleges that Ms. Giblin created      $17 billion.
                                                 “a toxic work environment” after her pro-        The minority opinion stated that the         CONTRACTOR CHARGED
                                                 motion and had previously sought to leave      state high court ruling “will lead to conse-   WITH MANSLAUGHTER
Lockton, former exec                             the brokerage.
                                                   In the lawsuit, Lockton says Ms. Giblin
                                                                                                quences that the legislature could not have
                                                                                                intended” and the majority’s interpretation
                                                                                                                                               A Vail, Colorado, construction
                                                                                                                                               contractor has been charged
trade accusations                                was an “owner, Producer Member and
                                                 Producer Partner” of Lockton rather than
                                                                                                “renders compliance with the Act especial-
                                                                                                ly burdensome for employers.”
                                                                                                                                               with felony manslaughter after a
                                                                                                                                               worker died in a trench collapse
n Lockton Cos. LLC and a former exec-            an employee and had access to sensitive                                                       in 2021, the U.S. Department
utive who recently joined rival Alliant          competitive information and customer                                                          of Labor announced. The
Insurance Services Inc. are embroiled            accounts.                                                                                     Occupational Safety and Health
in legal disputes in California and Mis-           Among other things, the suit seeks                                                          Administration cited Peter Dillon,
souri centering on gender discrimination         an injunction barring Ms. Giblin from                                                         owner of now-defunct A4S LLC,
allegations and a four-year noncompete           taking Lockton clients, prospective clients                                                   after a worker installing residential
requirement.                                     and staff until December 2026.                                                                sewer pipes suffered fatal
  Sallie Giblin, who joined Alliant as an          A Jan. 31 filing by Ms. Giblin seeking                                                      injuries when the trench he was
executive vice president late last year, filed   to dismiss Lockton’s suit, characterizes it                                                   working in caved in. The collapse
a bias suit against Lockton in December          as “speculative” and asserts that “Lockton                                                    resulted from deteriorating
and in January filed a motion to dismiss         has not alleged that any employees or                                                         conditions at the project, which
the brokerage’s noncompete suit against          clients were improperly solicited by                                                          A4S could have prevented by
her, which was filed in November.
  Ms. Giblin joined Lockton in 2006. In
                                                 Giblin or have been lost due to wrongful
                                                 conduct.”                                      Attorney’s FMLA                                using legally required trench
                                                                                                                                               protection systems, the DOL said.
2016 she became a member of the execu-
tive committee of the brokerage’s Pacific
                                                                                                case reinstated                                FEDERAL COURT SEEKS
Series unit, became a Lockton partner in                                                        n A federal appeals court reinstated a         STATE COVID RULING
2017 and was named president of the San                                                         Family and Medical Leave Act lawsuit           The 9th U.S. Circuit Court of
Diego office in 2018.                                                                           filed by an attorney who was terminated        Appeals in San Francisco asked
  In her suit, Sallie Giblin v. Lockton                                                         when she sought unpaid leave to care for       the California Supreme Court to
Cos. LLC – Pacific Series, filed in Cali-                                                       her 2-year old son, who had a history of       consider whether a virus exclusion
fornia’s Superior Court in Los Angeles                                                          respiratory illness and was experiencing       in Napa Valley restaurant The
in December, Ms. Giblin alleges that as                                                         COVID-19-like symptoms.                        French Laundry’s coverage is
a leader at Lockton she was subject to                                                            Polina Milman, an attorney with              unenforceable under state law.
gender discrimination and retaliation by                                                        Southfield, Michigan-based Fieger &            In one of the first COVID-19
other executives at the brokerage.                                                              Fieger P.C., worked from home for four         business interruption cases filed,
  In addition, she argues that Lockton’s
noncompete agreements are unenforce-             BIPA ruling could                              days in March 2020, then requested
                                                                                                unpaid leave because her son’s condition
                                                                                                                                               the Yountville-based restaurant, its
                                                                                                                                               sister restaurant Bouchon Bistro,
able and that her dispute with the broker-
age should be heard in California.
                                                 have major impact                              was not improving, according to the
                                                                                                ruling by the 6th U.S. Circuit Court of
                                                                                                                                               and its chef and owner Tom Keller
                                                                                                                                               filed suit in March 2020 against
  Among other things, Ms. Giblin alleges         n The Illinois Supreme Court ruled Feb.        Appeals in Cincinnati in Polina Milman         a Hartford Financial Services
that Lockton is a “raucous boys’ club”           17 in a divided opinion that employers         v. Fieger & Fieger P.C. et al. Her job was     Inc. unit in connection with its
where some executives engage in inap-            violated the Illinois Biometric Informa-       terminated.                                    pandemic-related closures.
propriate behavior and men are promoted          tion Privacy Act each time they collected        Ms. Milman filed suit in U.S. District
to the detriment of women.                       fingerprints from an employee and dis-         Court in Detroit alleging her termination      FIRM PLEADS GUILTY
  In addition, she alleges that her accounts     closed that biometric information without      violated the FMLA and state law. The           AFTER WORKER KILLED
were insufficiently staffed after she inter-     the employee’s consent.                        district court granted the firm’s motion       An Alabama plastics manufacturer
vened to prevent the hiring of two pro-            The 4-3 ruling in Latrina Cothron v.         to dismiss the case on the basis Ms.           agreed to pay $242,928 in
ducers with a history of sexual harassment,      White Castle System Inc. followed the          Milman had failed to state a claim under       restitution and also reimburse
she was excluded from various executive          unanimous Feb. 2 decision in Tims vs.          the FMLA.                                      funeral expenses to the estate
committee decisions and activities, and          Black Horse Carriers Inc., in which the          The case was unanimously reinstated by       of a 45-year-old worker who
she was unfairly blamed for the poor per-        state high court ruled that claims under       a three-judge appeals court panel, which       died in August 2017 after being
formance and morale of the Pacific Series        BIPA are governed by a five-year, rather       remanded the case for further proceedings.     pulled into the moving rollers of
unit’s employee benefits division.               than a one-year, statute of limitations.         The complaint’s allegations, the ruling      a plastics extrusion machine at
  In September 2022, Ms. Giblin was                Illinois is the only state that permits      said, “make clear that when faced with         a plant in Helena, Alabama. ABC
removed from the executive committee.            a private right of action in biometric         a pandemic involving a novel respiratory       Polymer Industries LLC pleaded
She resigned from Lockton on Nov. 29             cases. The 2008 law enables plaintiffs         illness (COVID-19), concurrent recogni-        guilty to a willful violation of
and took a position as an executive vice         to be awarded $1,000 for each negligent        tion by federal and state executive orders     workplace safety requirements
president at Alliant.                            violation, or $5,000 for each intentional      and a rising number of COVID-19 cases,         in federal court in Birmingham.
  On Nov. 30, Lockton sued Ms. Giblin            or reckless violation.                         Milman believed that her symptomatic           Occupational Safety and Health
in federal court in Kansas City, Missouri,         Ms. Cothron, a manager of a White            two-year old son — who had a history           Administration inspectors said
where the company is headquartered,              Castle restaurant in Illinois, stated in her   of hospitalization for respiratory issues      the company failed to provide
saying it was seeking to prevent her taking      complaint that shortly after her employ-       … may have contracted the illness. Faced       machine guarding measures and
confidential information to Alliant.             ment began in 2004, the company intro-         with these facts, Milman made a request        lacked safety procedures to shut
  The suit, Lockton Cos. LLC – Pacific           duced a system that required employees to      for unpaid leave to care for her son, a        down or isolate stored energy.
Series v. Sallie F. Giblin, alleges that she     scan their fingerprints to access their pay    hallmark FMLA claim.”

12    MARCH 2023        BUSINESS INSURANCE
VIEW FROM THE TOP
                                                                          Geof McKernan
                                                                                     NSM INSURANCE GROUP

                                     Q   What does the Carlyle deal
                                         mean for NSM?
                                                                                      that are with you in the short term as well
                                                                                      as the long term, and that’s important to us.
                                                                                                                                      your various programs?

                                     A   It means we’re able to continue to
                                         grow the business organically as well       Q   Are there any areas of the
                                                                                         market that you see as being
                                                                                                                                      A   There’s been a lot of musical chairs
                                                                                                                                          around people. We go after strong
                                                                                                                                      talent — talent is our No. 1 investment
                                     as invest in people, IT and acquisitions.        more difficult than others?                     — and we’ll continue to do so. We also
                                     Then we’re going to continue to grow the                                                         have a very, very strong internship
                                     business not only through internal growth
                                     but through acquiring specific industry
                                     niches, and we can also acquire more
                                                                                     A    The property cat business is probably
                                                                                          the hardest market anybody’s seen, and
                                                                                      it continues to be hard, especially in areas
                                                                                                                                      program that’s over 12 years old, so we
                                                                                                                                      grow a lot of our talent ourselves and
                                                                                                                                      that’s done phenomenally well for us.
                                     significantly higher EBITA businesses.           like California and Florida. Commercial
                                                                                      trucking is still a hard market. Professional
                                                                                                                                      Q  Looking ahead, how do you
Geof McKernan, CEO of NSM
Insurance Group, co-founded the      Q   About how many acquisitions
                                         have you made over the years?
                                                                                      liability in certain areas can be hard where       see the market panning out
                                                                                                                                      over the next 12 to 18 months?

company as a retail brokerage in
1990. Since then, it has developed   A   We’ve made over 25 acquisitions
                                         over the last 32 years.                                                                      A   I think it will remain a hard market;
                                                                                                                                          things aren’t changing. You have to
                                                                                                                                      remember that, on a worldwide basis,
into a specialty managing general
agent offering programs ranging      Q   Obviously, we’re in a different era
                                         in terms of interest rates, etc. What
                                                                                                                                      carriers have not done great, so they
                                                                                                                                      are looking to get their returns back
from professional liability for      difference will that make to your growth                                                         because of wildfires, hurricanes, floods
                                     ambitions and your acquisitions?                                                                 and all the geopolitical risks. So, that all
architects and engineers to
                                                                                                                                      affects the capacity, and I don’t think the

                                     A
pet insurance. Last year, the            It’s not going to slow us down at                                                            market’s going to go soft anytime soon.
Conshohocken, Pennsylvania-              all. Carlyle is a large private-equity
based company was sold by its
                                     firm, and we have both the cash and
                                     the appetite to keep growing, and we                                                             Q   It’s been this way for some time, so
                                                                                                                                          how long do you see it going on for?
prior owner White Mountains          will. We will buy businesses prudently
Insurance Group Ltd. to Carlyle
Group Inc. in a deal that valued
                                     and we’ll continue to be aggressive with
                                     businesses that we want to acquire.                                                              A   It’ll continue because they just haven’t
                                                                                                                                          had the returns they would want, and
                                                                                                                                      that’s caused prices to increase, period.
it at $1.78 billion. Mr. McKernan
                                     Q   Have you seen much change in                 the capacity is less available. Carriers
recently spoke with Business
Insurance Editor Gavin Souter
                                         valuations over the past year?               want to be in business to make money,
                                                                                      so they use capacity where they get             Q   Do you see signs of more
                                                                                                                                          capacity coming in?

about how the investment             A   We’ve seen some valuations come down
                                         and we’ve definitely seen a slowdown
                                                                                      the best return. We understand that.

                                                                                                                                      A   Inklings of it, but we’ll have to
affects NSM’s strategy and the
state of the specialty insurance
                                     in what’s coming to market. It’s also put
                                     some of our competitors on the sidelines.       Q    We’ve just seen a very difficult
                                                                                          reinsurance renewal. Did that
                                                                                                                                          wait until after the summer to see
                                                                                                                                      what’s really happening. The reinsurance
                                                                                      affect your programs?                           renewals were really tough for a lot of
market. Edited excerpts follow.
                                     Q  You have operations in                                                                        insurers, and I don’t think that’s eased off
                                        London as well. Do you see
                                     opportunities for growth there?                 A    It affected us in property cat in that it
                                                                                          didn’t allow us to get as much capacity
                                                                                      as we would have liked, but, because we
                                                                                                                                      yet, so we’re going to have to wait and
                                                                                                                                      see and get through hurricane season.

                                     A  Very much so. We’re very
                                        bullish on growing in the U.K.
                                     and also in Western Europe.
                                                                                      have so many different programs, we can
                                                                                      also pivot and focus more on other things
                                                                                      where there isn’t a capacity constraint.
                                                                                                                                      Q   What else do you see
                                                                                                                                          happening in the market?

                                     Q  Most insurance buyers would say
                                        it’s still a difficult market. How           Q    As you say, you are looking to expand.
                                                                                          Where do you see opportunities?
                                                                                                                                      A    The business is going to go into
                                                                                                                                           the carriers that can innovate, the
                                                                                                                                      MGAs that continue to innovate and
                                     would you characterize the market                                                                provide product. You’ve got to provide
                                     from your specialty point of view?
                                                                                     A    I’m agnostic to the niche. I look for
                                                                                          opportunities that are sustainable
                                                                                                                                      more than just the price: It’s product,
                                                                                                                                      service, having a response time that’s

                                     A   This is the hardest insurance market
                                         I’ve seen in 40 years, and it continues
                                     to be that. Obviously, capacity is at a
                                                                                      and renewable, whether it be in
                                                                                      professional liability, commercial auto
                                                                                      or other areas like warranty.
                                                                                                                                      really quick, and having an easy way
                                                                                                                                      to do business. So, we’ve invested a
                                                                                                                                      lot in technology so our customers can
                                     premium, and what we strive to do is use                                                         come to us whether it’s six o’clock in
                                     capacity prudently and partner up with
                                     quality insurance carriers. You want carriers   Q    What’s your experience been
                                                                                          in finding the expertise for
                                                                                                                                      the morning or 10 o’clock at night. We
                                                                                                                                      think that’s critical going forward.

                                      This is the hardest insurance market I’ve seen in 40 years, and it continues to be that. Obviously, capacity is at a premium,
                                                   and what we strive to do is use capacity prudently and partner up with quality insurance carriers.
                                                                                                                                  BUSINESS INSURANCE          MARCH 2023         13
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