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COVID-19 and Your Insurance: Updates and Strategies for Your Current Policies and Your Next Renewal
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Welcome to the Santomassimo Davis LLP webinar, where our team of highly experienced Outside General Counsel attorneys provides important information that you and your business can potentially act on. For this webinar, our topic will cover different aspects of how COVID-19 may impact insurance policies, terms & conditions, claim examples and related policyholder considerations.
Brian Leidwell will be joining our host, Alex Anglim, in this discussion to bring in a different perspective as an Insurance Broker. He has helped businesses with very few employees to clients with 5000 employees. We hope this discussion is insightful and helpful for you and your business. If you would like to check out more of our webinars, you can find upcoming events here, as well as on our YouTube channel.
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Agenda
- Introduction to OGC Solutions, Brian Leidell and Fidens Insurance Brokers
- Types of insurance policies that might be impacted by Covid-19
- Covid claim examples & related policyholder considerations
- Impact of Covid on terms & conditions
- Pre-pandemic market condition; Current and future market conditions
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Alex Anglim 0:06
Good afternoon, everyone.
This is Alex Anglim, from Santomassimo Davis. Thank you, everyone, for joining us today for the COVID-19 Insurance webinar. We’re going to get into the materials very shortly, and hopefully, give you a lot of good content that you can act on and will be actionable for you and your organizations. Before we do that, I will say hello, welcome everybody, and tell you a little bit about our agenda for the day. We’re going to start with an introduction to my firm, and to my co-panelist, Brian Leidell, and his firm. And then we’ll work through the following subjects first the types of insurance that will be or might be impacted by COVID. We’ll talk about some COVID claim examples and related policyholder considerations that, again, hopefully, are going to be relevant to your organization, and that you can use to manage your insurance program. Brian is then going to take over and talk a little bit about the impact of COVID on insurance, marketplace terms, and conditions. And then also talk about the pre-pandemic market, the current and the future market all with an eye towards what will be the impact of COVID. And again, the things that you need to think about for your organizations as you renew and develop and sharpen up your insurance programs going forward. Before I get to that, let me tell you a little bit about our firm, Santomassimo Davis, Outside General, Outside General Counsel Solutions. Our law firm is organized a little bit differently and we take a little different approach. We field in traditional outside law firms, which is that we work to duplicate what would be an in-house legal department in a very large organization, but provide that on an outsourced basis to middle-market companies that are not large enough to have a staff of in house legal specialists. We try to be as strategic as possible, understand our clients, businesses take the approach of an in-house General Counsel as an integral part of the business and an integral strategic partner in business planning and development. And we provide access to our full team and we can do that with a predictable cost structure, a fixed fee cost structure, that will allow our clients and does allow our clients to replicate salaried in house legal department but on an in house, I’m sorry, on an outsourced basis and a fixed cost. I also like to talk a little bit about my co-panelist, Brian Leidell, who’s the managing director for Fidens Insurance Brokerage, going to be hearing from Brian today, I think you’ll enjoy listening to him. He’s an engaging speaker. He’s by trade. He’s an independent representative in the insurance market. He has the designated chart, chartered property casualty underwriter designation, and his experience working in the United States, London, and Bermuda insurance markets. He’s also a lawyer by training, and he has a lot of valuable insight and input. And briefly, I’d like Brian to jump in right now and say hello. And tell us a little bit about Fidens. Brian.
Brian Leidell 3:40
Thank you, Alex, I really appreciate being here and allowing me to be part of this panel board. I mean, first of all, I will tell you that it’s fortunate that I’m not an attorney anymore because working with Alex on here, I can tell you I’ve never met such a passionate attorney that really believes in what’s going on and how to help his clients. And I would hate to when it gets him on the opposite side of me. So, I appreciate actually being a broker now not going against them because he has all the value in the world. About our brokerage, we were founded about 10 years ago, we expanded about seven offices. We service clients and the majority of states I think we’re about 38 states right now, we brokered clients into, we’re helping clients of all shapes and sizes, from a client with no employees all the way to a client with 5000 employees. It really depends on what the geographical areas and exactly a specialist in our area to support them. From there, as I said, I guess let’s continue the presentation. I’m really happy to be here. Thank you so much.
Alex Anglim 4:37
Thanks, Brian. Listen, just sort of as an overview, and before we jump into the material, we’re really hopeful that by having the two of us together, you get a couple of different perspectives. Obviously, I bring the legal perspective. I know a little bit about the marketplace because I’m an insurance lawyer and have some connection to it. But Brian is a market professional and is going to give you a perspective that I really couldn’t give as well. So we hope that by joining together, we give you a really strong set of content that you can use. So let’s start with a couple of the types of insurance policies that you’re going to want to think about and that may be impacted by COVID-19 issues. Directors’ and officers’ liability or DNO insurance is one of them. Workers Compensation and Employers Liability, I stress the “and” because that is one policy with two important and distinct sections, that we’ll talk about as we move forward in the presentation. Employment practices liability, commonly known as EPLI, which by now I think is almost universal. Most businesses carry and have some relevance to COVID-19. And then property insurance and I use this as a header to introduce business income, civil authority and contingent business income coverage, because really, those are portions of or adjuncts, to property insurance policies. And then cyber and privacy liability policies, which are more important now for reasons that we’ll, we’ll get to again as we move through the presentation, starting with DNO insurance, for those not familiar or unsure as to what it covers. I think it’s helpful to just start with the basics right, which is that DNO policies are intended to cover claims against directors and officers, right I mean, that’s right there in the name fairly straightforward. And it covers claims for wrongful acts. The term “wrongful acts” is defined in the policy. The definitions are typically very, very broad and include things like error, misstatement, misleading statement, act, omission, neglect, breach of duty. So typically a DNO policy is going to have a very large and broad definition of wrongful acts that will trigger potentially, trigger coverage under the DNO policy. DNO insurance typically also includes entity coverage. So even though it says directors and officers liability in the title. Another aspect of DNO coverage includes coverage for the entity, which means coverage for the company itself. And that includes claims directly against the entity like we have with publicly traded companies where they get sued in securities claims and securities class actions, but it’s not exclusively for public companies. So it’s important to keep that in mind. So most entities now of any size, are buying DNO insurance coverage, including entity coverage, even if they’re not publicly traded. So let’s talk about a couple of DNO claim examples that arrived, that arise from COVID-19. Norwegian Cruise Lines was one of the first the cruise line was sued by shareholders soon after the pandemic and the shareholders in this class action alleged the company made inaccurate statements about how COVID would affect the company’s operations. And that they omitted information regarding allegedly deceptive sales practices that were undertaken in response to COVID. So again, this is a securities class action, where the allegations are that COVID is connected to these market misrepresentations that securities purchasers and sellers relied upon. Another example is Inovio pharmaceuticals. In that particular case, the allegation is that Inovio misrepresented how far along it was with a COVID-19 vaccine and made the claim that it would start human testing as soon as April 2020. And that generated an again a securities class action against the company for alleged misrepresentations in the securities market regarding those particular securities. Other examples, Tyson Foods had some significant COVID-19 problems at a processing plant involving employee safety, AstraZeneca, a variety of other public companies have been sued in securities class actions. And again, these are not direct claims for damage related to COVID-19, but rather are securities class actions that deal with the company’s responses and statements in connection with COVID-19 issues. So that’s something that we’ve seen a variety of, and I’m sure there’ll be more in the future. Private companies though, in other words, companies that are not publicly traded, their stock is not, you know, traded on the New York Stock Exchange or another public securities market, privately held companies have directors and officers exposures potentially under DNO insurance policies that they may wish to think about. There could be allegations that the directors and officers somehow mishandled the crisis or the company’s response to the crisis. There could be allegations related to the Paycheck Protection Act, a lot of privately held companies. And in fact, most of the recipients of Paycheck Protection loans were privately held companies, right. That’s, that was the intent of the program that
Alex Anglim 10:39
took out loans out of the Paycheck Protection Program. Well, there are potential liabilities that arise from the Paycheck Protection Program. It’s a federal program, it requires that certain statements be made in order to get eligibility for a loan. And it’s possible that in the future, the government could come back and either investigate the truth of those statements, and dealing with those investigations can be an expensive event that requires lawyers quite possibly, you know, very sophisticated lawyers. And there could be litigation after that False Claims Act, Qui Tam type claims, and again, to some extent, and the extent will vary by the specific claim and the specific facts, but to some extent, policyholders will be looking to their DNO insurance policies to deal with those issues as they come in. So back to the public company examples with securities claims. These are generally covered under DNO policies. These are financial injuries and losses that are of the type that a typical policyholder would expect to be covered under a DNO insurance policy and is really one of the specific reasons that you go out into the DNO marketplace if you’re a publicly-traded company, again, Paycheck Protection related claims if those claims occur, they may also be covered. There are going to be some definitions that may matter. And if you’re a privately held company, you went for a Paycheck Protection loan may want to look at some of the terms and conditions but again, these are financial injuries, financial losses, and the cost of defending the government investigation may be included depending on the definitions of your particular policy. So if you have a Paycheck Protection Act issue, you may be looking to your DNO for defense and for recovery of your legal fees and other losses. Bodily injury claims, though in other words, people directly injured in some way by COVID-19. These are typically excluded under DNO policies. Those are not financial injuries and they’re not financial losses. That’s not what the DNO policy is intended to cover. As it with many things in the insurance area, there are wrinkles, there are different wordings of these exclusions and the wordings can matter a great deal.
Broadly speaking, there are two types of bodily injury exclusions that are typically attached to DNO policies, with the broader of the two exclusions, and again, I’m generalizing here to say that there are two versions there are more than two and they do vary. But broadly speaking, there are two types. And with the broader type, you might see insurers try to avoid covering COVID-related DNO claims, by invoking the bodily injury exclusion. So what are the two main forms of wording? I’ve got them here on the screen for reference, the broader of the two forms says there’s no coverage for claims, quote, alleging, based upon or attributable to, arising out of, in consequence of or in any way related to bodily injury. So I think it’s fairly self-evident, just based on the language that the intention of the drafters here we’re looking to make this exclusion as broad as possible, right? Anytime you see these clauses with lots of commas in them, you know that lawyers have been involved and you need to get ready for, you know, difficult task and working way through it. The narrower form of the exclusion is much more straightforward. It says that there’s no coverage for claims for bodily injury. So under the latter of these two, it would be very, very clear that all the claim examples that I gave earlier, would not implicate the bodily injury exclusion. I would certainly argue that even the broad form of the exclusion should be no obstacle, to any of the claims that we gave examples of earlier, however, for safety, you would want to try to avoid the broader firm form, if you can, I think that’s self evident. But it’s something that you’ve probably should keep in mind. Brian is going to focus on some renewal considerations, again, from the broker perspective. But I do want to mention here that this bodily injury exclusion is something you should probably make note of in your own renewal process, right? If you’ve got the broad one, you probably should think about pushing for the narrower version at renewal. If you already have the narrow one. You want to be on the lookout. When you get your renewal quote, for attempts by your insurer to start to rely on the broader one, there, that really is something you should be on the lookout for. And this sort of highlights overall, that wording matters. And it’s something you should be considering when you work with somebody like Brian, you know, make sure you listen to their expertise into what’s available. And don’t just take for granted that these stacks of paper are all the same. And all that matters is the premium. It’s certainly not true. Okay, Workers Compensation and Employers Liability. As I said at the outset, this is one insurance policy that has two distinct forms of coverage. The workers comp is your statutory worker’s compensation remedy that you’re obligated to provide as an employer in the particular states in which you do business. That policy, that part of the policy, in so many words says it covers your covers what you’re obligated to provide as an employer. So it’s pretty much defined by the statute. And that’s the familiar, no fault compensation program for work-related injuries, you don’t have to ascertain, you know, whose fault it was that a construction worker stepped on a nail on the job, it’s a no fault situation, that’s a work-related injury is going to be covered. The employers liability section of the policy protects you against lawsuits, right, not just that no fault compensation system that we refer to as workers compensation, but some kind of an employment-related lawsuit for job related injuries. That’s, you know, for one reason or another, falls outside the workers compensation system.
Alex Anglim 17:31
The reasons that employers’ liability claims might be outside the worker’s compensation system is a little too much for us to cover here today. But just important to be aware that these policies have that section so that if you’re sued in a situation, you know, in Superior Court in New Jersey, for example, rather than in workers compensation court, by an employee alleging an employment-related injury, you probably need to put your workers comp employer on notice of that of that claim. The workers compensation laws do vary by state. But there are certain things that we can generalize about that are pretty fair across the 50 states is, number one, sudden accidents at work, right, cuts, orthopedic injuries, crush injuries, the sudden accidents that cause physical injuries, those are of course, what the workers comp system is intended to protect against, and those are going to be covered. Also occupational diseases by which we typically mean diseases that are traceable to some type of prolonged exposure at work, could be toxic substances could be repetitive motion, noise and hearing loss is actually a fairly large category of occupational disease. Again, these are things that are they occur over time and they’re traceable directly to workplace conditions. Again, those are typically going to be covered, depending on the particular state that you’re in. What’s referred to as the ordinary diseases of life, right? The common cold, the flu, you name it, it’s generally understood that those are not eligible for workers’ compensation. They those are, they’re just in the air, they’re in the environment generally, not really traceable, typically to your workplace. Naturally, like almost everything else. COVID-19 has changed this to some degree. For example, in New Jersey, we have a new law, that creates a rebuttable presumption. That’s some lawyer’s wording right there, rebuttable presumption of workers compensation coverage for a COVID-19 case, that is that involves that essential employee during the pandemic. This new law was passed in late 2021 2020, I’m sorry, but it’s retroactive to March 9, and essential employees is a fairly broad category, there are some specific categories in the law, police, fire, medical workers, also workers who have physical proximity to to members of the public and fall into a bunch of categories like hotel, transportation workers, food services workers. But there’s also a catch all that’s quoted here on the screen for any other employee deemed an essential employee in one of the government’s pandemic orders. So trying to figure out who’s an essential employee might take a little bit of reading. But I think you get the overall gist of it, which is the types of employees who would have contact with the public, and which were deemed to be essential and continue to operate in proximity of the public, there’s going to be a rebuttable presumption that their COVID-19 is connected to their employment. It is rebuttable, as it says above, so there could be proof offered by the employer, that the worker got the disease someplace else outside of work, for example, maybe there’s good evidence that,
you know, the worker prior to being diagnosed, a couple of days prior was someplace where a lot of people had positive tests, and it’s more likely than not that they got the disease there and not at work in that case. If it’s more likely than not that they got the disease somewhere else, then the presumption that they got it at work would have been successfully rebutted. This is one example here in New Jersey. But it’s important to be aware if you’ve got multi-state operations that other states have, have enacted or might enact similar laws, it does vary by state, so you’ll have to look at the particular states in which you operate to figure that out. We also have EPLI or employment practices liability insurance. If you’re familiar with this coverage, you know that it is mostly intended for things like employment discrimination claims, for example, that’s probably the major exposure and the major concern, the reason that companies go into the marketplace and buy this coverage, but it may be also impacted by COVID-19. For example, there could be OSHA violations or allegations of OSHA violations, for example, employees who complain that there’s an OSHA violation, it might be might be that there isn’t one. But complaints can be made. Similarly, Family and Medical Leave Act violations, again, whether or not there is a violation, there could be complaints, or there could be, you know, requests by employees to exercise rights that they have under these statutes, those specific complaints, and those specific claims are not covered under EPLI. However, if the employer takes some adverse action that follows after the employees complaint or the employees exercise of those rights, it could be alleged to have retaliated against that employee in response to that particular complaint. So if there’s adverse action that is arguably retaliation for the exercise of rights under these statutes, then that retaliation claim could then be covered under your EPLI policy. So again, important to be aware of that it’s not that it’s going to pay for your OSHA violations or pay for your FMLA violations. It will not but when we get into this issue of retaliation, may have coverage on your EPLI policy. And now we’re moving into the what I had under the header at the beginning of property insurance. And you know, this is probably the most well reported of the possible business of the possible COVID-19 insurance claims, right. It’s been very surprising to me to see people on national news casts being interviewed about business interruption claims as an insurance lawyer. They don’t often see that insurance is front page news insurance claims often flow from front page news, but there was a fair amount of publicity around the fact that a lot of insurance companies will not covering business interruption claims it’s it’s very well understood by everybody that businesses have suffered greatly and have lost a great deal of money. So a lot of people expected that insurance companies would step in and protect those businesses under the business interruption coverage. So to help you understand why that’s happening, I’m not saying that the claims are right or wrong. But it is helpful to understand a little bit of background about business income coverage generally. And the first and most important piece of background is that it’s a form of property insurance, right, so you buy a property insurance policy, it has a number of different sections in it. One of the sections is the building section. So if your factory burns down, the building section of your property policy, is going to pay the benefits associated with the cost to either replace or to repair the damage building, it’s pretty obvious. In the same insurance policy, there’s going to be a business income section. And for that same loss event, right, that same damage the burning of that
factory, the business income section might compensate the insured for the income loss while the business is shut down until it can be repaired. And it was originally for for much that reason. It was originally called Use and Occupancy insurance, later it eventually became known as business income coverage. This is a sample of a business income coverage grant, which I’m not going to just read out loud, but I just focus our listeners here on the two underlined sections of the coverage grant, because those sections create what is referred to and what I refer to as the causal chain. Right? These are the elements that a policyholder must prove, in order to recover under this section of the policy. The first element right is that the suspension of their operations must be caused by direct physical loss of or damage to property. And the second element is that the loss or damage must be directly caused by a covered cause of loss, which I’ve read abbreviated below CCOL, covered cause of loss. So if you take that language, and you put it into the order of operations in which these events occur, you get the covered cause of loss first must cause physical loss of or damage to property. And then that property damage must cause a suspension of operations. So all those things have to be present in order to have a successful claim under this part of the policy. Civil authority is similar with another wrinkle here, and again, we’ve just underlined for you. The operative, the three elements that I’ve summarized at the bottom and in the causal chain is that the covered cause of loss must cause some physical loss or damage to nearby property, right that nearby will be defined in the policy some policies say within a mile, some would say within 1000 yards, it’ll vary. But generally speaking, you need a covered cause of loss that causes some property damage near the insurance property. That property damage must in turn result in an order that prohibits access to the policyholders premises. And then that order must in turn cause the policyholder to suspend their operation. So again, we have a causal chain, it just has an extra link in it, it’s just a little bit different. But the calculus is very similar under civil authority coverage. So what’s a covered cause of loss in an all risk policy, which is a term most people hear but don’t often fully understand. And all risk policy is really anything that isn’t excluded. So a covered cause of loss is just some cause that can’t be found in the list of exclusions. And that’s where we get to the very important virus exclusion, which is attached to a prop, you know, property policies in a variety of different forms. Sometimes there’s the the ISO version of the virus exclusion, there’s micro organism exclusion, they vary. The ISO version is very common, says we will not pay for loss or damage caused by or resulting from any virus. And then there’s some other language here, but obviously, we are dealing with a virus so that’s, that’s as far as we need to go into that language. The microorganism exclusion is a different one. And not only does it use some different language about, you know, microorganisms versus viruses. It also includes the phrases That the loss or damage is excluded, regardless of any other cause or event.
Alex Anglim 25:53
etc. that contributes concurrently or in any sequence to the loss. So, again, this is language that’s intended to be much broader and I’ve just dropped a reference here. We’re going to speak momentarily about a few cases this, this particular exclusion is in the hen-Henderson road case. So in the business income area, the first thing I wanted to share with the audience is that we’ve had already a lot of results, there’s been a lot of litigation that’s been filed against insurance companies and some trends are emerging, that you should be aware of the first is that there have been a lot of early insurance company victories. A lot of the cases have been dismissed before any discovery. So right after the complaints filed, the insurance company filed a motion to dismiss and says to the court, you do not need we do not need to do discovery, we did not need to trial, the case should be dismissed right now. And in many cases, they’ve been successful. And getting those motions granted by courts. There’s been the each of these are some of the common grounds. The first is that, although COVID-19 is all around, there’s not any direct damage to the policyholders property right in the form of actual provable contamination by the virus. Another group of cases, has held that the shutdown orders do not constitute, excuse me do not constitute direct physical loss or damage. Another group of cases is held that even if it’s true, that the had the insurance property had some contamination of the virus, the insurance losses were not due to that contamination, they were due to shutdown orders, like statewide or city wide shutdown orders. And then finally, and not unexpectedly, some of these cases have been decided, based on the virus exclusion, in other words, that there is not a covered cause of loss. There’s a reference here to this one SA and T case, which really is just for anyone who’s interested in looking into this. That particular decision collects and cites a whole bunch of these cases, if you’re so inclined to read it, that would be a starting point. And if anybody listening to this, once they get a copy of that decision, they can let me know I’d be happy to send a copy. An interesting case to consider very illustrative is this Pez Seafood case decided just a few days ago, coming out of the Eastern District of California, the policy language, which I’ve summarized here, was very typical, very straightforward, not unusual at all. The virus exclusion was essentially the ISO virus exclusion I highlighted earlier. And the allegations in the case was that the restaurant was not physically damaged. In other words, there’s no allegation that it was physically contaminated with the virus. The policyholder argued that the phrase loss of included its inability to use the restaurant for one of its core functions right as a restaurant as a dine-in restaurant. The court did not accept that argument, though it held that without some virus present, that the property just something like a preventive measure, like shutting down to avoid transmission of the virus does not constitute physical loss. So the policyholder lost that argument on the civil authority portion of the claim. The court agreed with the policyholder
that
the orders, which said that dine-in service, right, indoor dining was prohibited. The court agreed that that order specifically prohibited access to at least part of the property right to the to the policyholders dining room. So maybe people could get into the property for takeout for and to work there. But they couldn’t use the dining room. So the court agreed that that was an order that specifically prohibited access to a portion of the property, but unfortunately, came to the conclusion that the virus exclusion applied, and therefore granted judgment for the insurance company. So interesting case, because it summarizes a lot of the arguments and goes through them in some detail. I also want to point out that there have been some recent policyholder victories. Some of the motions to dismiss have been denied, not dispositively, but they’ve said that the policyholder is at least entitled to Pursue discovery and keep the case going so it won’t be dismissed immediately. A recent example there is the Westfield YMCA case which is in New Jersey. The recent Cherokee Nation case and again, all these are just in the last few days. The Cherokee Nation case against Lexington. Summary judgment was granted for the policyholder, but it’s very unclear. The order is only one page. It doesn’t give us a lot of detail. So it’s it’s difficult to tell what were the basis the grounds for this particular decision? It’s something that I’m going to be looking at and trying to get more detail about what were the key issues in that particular case. Another one is the Henderson road case, which I alluded to earlier, where there was summary judgment, again, in favor of the policyholder judgment for the policyholder, not just that it could continue in discovery. And in that court case, the court found the policy language was ambiguous. And I think quite significantly, it had the very broad microorganism exclusion that I highlighted earlier. And the court found that the purpose of that exclusion was to deal with microorganisms that are at the insurance premises not just to deal with microorganisms that might be out generally. And it also relied in part on statements by insurance companies to Department of Insurance, insurance in Ohio, when they were seeking approval to use the exclusion and policies essentially found that the insurance industry told the insurance department that the exclusion was much narrower that they late than they were later arguing and litigation and use those statements against them. That’s unusual. It’s not the first time it’s ever happened. In a case, there’s a famous case in New Jersey where that was done, but it is notable. The takeaways from the business income litigation are many but I think can be reduced from two these points for you for most purposes. The first is that the policy language is going to matter, right, not every policy is identically worded. And before you decide that these cases apply to your situation, you have to look whether the courts were construing, the same policy language or if your policy language might be different, and it might be different in a way that is decisive, a small wording change can be decisive. The language and scope of the emergency or-orders that have been issued by states, municipalities, cities, it varies. And again, that can be decisive. The arguments regarding the misrepresentation about the scope or reaches a virus exclusion, or an interesting issue, that may have some currency as we move forward and have more courts, analyzing just how far the virus exclusion goes. Keep in mind, most of these cases are in an early stage. So this law is going to continue to develop as these more decisions come in, and more cases are filed. And then finally, some of these results aren’t really final results, right? These are trial court decisions, and many of them are likely to be appealed. And when they are the appellate courts are going to be able to review them de novo, which is to say, they’re not just looking for clearer error, they’re going to consider the entire situation over again, just as the lower court did. So all of that bears watching. Alright, now I’m going to turn it over to Brian, I’m trying to Brian, I’m trying to give you the remote control. Hopefully that works. If it doesn’t then just give me an A next slide every time you want to advance. Brian, you’re on mute.
Brian Leidell 38:59
Yup. Can you hear me there?
Alex Anglim 39:00
Alex? Yeah, much better.
Brian Leidell 39:02
Okay. All right now. Great job. Alex, you brought up some fantastic points. And I really hope the audience, you know, is edified from all your notes. Moving on, one thing I wanted to start with the don’t might be people on this call. I know we’ve had several clients that even the rise of COVID, they kind of really realized that some of these coverages they really should have had in place even though they didn’t, or they might have had insufficient coverage. So they realized that this time, so I did want to start with the first time purchasers, is if you’re looking for this insurance, really the proper way to kind of approach the marketplace. You know, one thing I did want to mention is when you purchase insurance, you know, what are you really paying for? Many people don’t realize that it’s all about accessing capital. In reality, you’re paying a predetermined amount to access the carriers capital if a triggered event arose. So that being said, if you’re a new company, or let’s say your company that’s already been established, and you’re looking, you know, for directors and officers coverage approach that insurance marketplace as if they were an investor because you are asking to access their capital, if needed and if a triggered event happens. Now, what what what does this come about with? You know, if you went to an investor, would you just base it just off your application? Or would you show all the supplemental information that might create an investor that actually bite and maybe join your company or even accept your risk as in the underwriting platform? The reason I say this, as many times when I get an application, I I asked the insured before we even submit to the marketplace, Can Can you submit a pro forma? Can you show established financials? What when the event if you need more capital, do you guys have guaranteed funding that you could access in that event, you would always want to make sure that you submit this, you know, prepare it, review it, make sure your broker reviews it for you add some information, because you want to close off all four boxes of that underwriters mind to say that that risk is acceptable. The minute that our risk has declined, let’s say he’s looking at the application. And he’s not aware of certain factors that you didn’t bring forward, that could have changed his decision. What’s the declination happens, it’s very hard to override that. And unfortunately, that declination is in their system historically, even when you go to try to get a new policy in the future. Regarding employment practice liability, we’ve had several clients that realized that they wanted a more comprehensive policy and they wanted it in place. One important aspect, if it’s cost effective, is it’s important to find an underwriter willing to issue a new policy that provides prior acts coverage for the insurance formation date. For example, let’s say you’re a company that’s been around for five, six years, you had employees, you’ve had not had this insurance before 90% of the policies are going to be issued will have a retro Inception date. That means that if there is any act that gave rise to a claim before the policy inception, but the claim did not actually give rise till after the policy was the place that would be excluded. Now, in this event, if you did get a policy that provides prior acts from the insurance formation date, that means that it’s going to cover any acts that arose even before you had the policy. Excuse me, any acts that gave rise to a claim before the policy and after the policy was in effect. So it’s very important to do that. And, and I know for us with the many of our clients, you know, was there a premium factor between two policies. For example, one policy could be, let’s say, $5,000 a year, verse $7,000, a year at the $7,000 a year provides prior acts coverage, it’s generally worth it at that time. And the reason I say that is yes, it’s a little bit more money, but it’s providing you the coverage for any acts that you might not be aware that might give rise to a claim, but also the next year of renewal as long as that policy providing prior acts, it gives you full rein in the following year to reshot with all the carriers. And most times if you were to change a carrier with a more cost effective option, that carrier will honor the prior carrier’s policy meaning they will also extend to the extent of the company’s formation, date for any accent duel, that may give rise to a claim.
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