State and Federal Coronavirus Issues
Yeah. Sure. Good segway. Not only are the regulators and legislatures in disbelief as to the coverage that is or is not afforded here. But the plaintiff’s bar is taking full advantage of that sentiment in the unfortunate times we’re all in. I’m going to give here a very brief outline for those of you who have not been following this closely at home, although I’m sure a lot of this is not new to you all. Very much a, what I’ll call a level 101 review of the litigation landscape. There’s been a flood of cases brought by some of the more powerful plaintiff’s firms. These are very well-financed institutions, including, among them names like the Lanier Firm and Boies Schiller, who are world class at what they do. Over the last eight weeks, there have been over 120 insurance coverage lawsuits filed seeking compensation for, from insurers for income loss due to the COVID 19 virus. Of those suits, almost 40 are class actions. Some in federal court, some in state court. The predominant activity happening, it seems, in California, New York, Illinois, Oregon, Ohio, and Pennsylvania, just to name a few. By way of background, the plaintiffs are taking up cases, as Mike has alluded to, principally addressing declination of coverage related to two key points found in the typical commercial insurance property policy. First, coverage for business interruption or what’s also known as business income disruption. With, whether that is property damage related or civil authority related ie. all the various orders that have come down. And the other fight that’s going on in the context of these litigations are the, whether or not there’s a viral and bacterial infection exclusion. And if, and to what extent it would apply if it’s theirs? Plaintiff’s efforts have principally been focused on asserting that the cases in question have questions of fact and law that are so similar they should be heard in the context of class action. In addition, given the multitude of cases being brought, the plaintiff’s bar is looking to use a federal bench organizational tool, known as multi-district litigation, where they’re going to amass together these class action lawsuits in one or another single federal court. Some efforts are underway in Pennsylvania to create an MDL and in Illinois as well. If you want to understand what an MDL really is all about, think about mass product liability litigation in the pharma industry and what have you. In turn, the insurance industry, of course, is pushing back not only in the legislative area, but also in these cases. They’re pushing back against class certifications and they’re pushing back, possibly, although the jury’s out on that one, on whether or not multi-district litigation is in their favor. A key question in both these instances is question of commonality. A prerequisite, as most of you know, to the various business insurance policies at issue is the requirement of a direct physical loss or damage to property. Industry is challenging these claims, seeking to create class actions and MDL, arguing that each of the business interruption claims are unique, and therefore should not lend themselves to a class analysis. Questions would include individual evidence of physical damage, individual evidence of suspended operations. In an effort to get the federal courts to consolidate some of these cases into the MDL format, the plaintiffs have asserted a common theme in nine federal cases that simply stated all these business interruption claims arise from the various shelter in place orders, at both national and local levels. The industry’s challenge to this claim is that asserting the central issues will not be the same across all cases. Specifically, again, like I said, questions of alleged physical damage, the nature of the virus exclusions will not be the same, for instance, across disparate industries such as retail, hospitality, manufacturing, and professional services. And another challenge, and I think this perhaps might be an even stronger one, apart from the facts, is that there is not predominant, a predominant common issue of federal law. There is no, if you will, RICO or Controlled Substance Act interpretation at issue. And all you on the phone will probably be very familiar, of course, with the multi-state regulatory nature of the insurance industry. That alone should support why these actions should not be handled in an, in an MDL context. This process is at its earliest stages and will be very much a long and drawn out process. It is not helpful at all, much as we’re all experience remote working conditions, those very safe for about working conditions are adding significant challenges to the legal court process. We expect hearings to take place in the Illinois federal courts. Will not be heard until the middle to late June. Plaintiffs have sought accelerated hearing at the next MDL. Court says nope, we’re going to go with the ordinary process. There’s no rush here. You know, as much as that sounds awful, but that’s what’s going on. And the action in Pennsylvania maybe heard earlier. So, it’s still yet to be seen. That’s an, again, a high level, you know, outline of what’s going on in the class action and MDL world relating to these litigations. We are representing at least one care in the space. I’ve been on calls in the context of joint defense agreements with perhaps like close to 40 law firms, and at least that many insurance carriers, if not more. And the themes are quite common, as I just said. The industry lobbyists as well are also very much supporting in the space filing amicus briefs. You name the alphabet soup of an industry lobbying group, and they’re involved in this. So that’s what’s going on at a high level. We are happy to, you know, give guidance or answer any questions that anyone has. Just reach out to us after this. Mike, back to you.
Michael, I know Dan Brown was going to cover items three and four. He’s stuck on pause, I think.
Actually, Dan is on. I see him on.
Hey, I’m on.
Yep, okay. Oh, great. Go ahead.
So, item three, this waivers of commercial liability it’s been coming up, and this is limited, by the way, to the auto, private-passenger auto and transportation network company sphere. So it doesn’t apply to everyone. But it’s an example of one of the ways that claims could be coming up later on, because the issue is that a lot of states of either requested or required auto carriers to waive the commercial exclusion in their policy. And, you know, the way that works is that nearly every private-passenger auto policy says, look, if you’re going to drive delivery, if you’re going to drive for hire, we’re not covering that. You need to get your own commercial liability for that. And so states have said, look, in these unusual times where now people who used to be waiters have suddenly become delivery people, and they’re driving their car to take food to people instead of people coming to them. Let’s waive that. But the regulators have been pretty careful and consistent in saying, but by the way, this does not apply to people who are driving for TNCs, transportation network companies. Why? Because they’re supposed to already have their coverage. But the regulations do apply if people are driving in support of essential businesses, and essential businesses specifically include restaurants. So the questions are coming up. Well what if someone’s driving for, we’ll just pick Uber Eats? There’s all sorts of other Doordash, those types of things, but let’s say what if they’re driving for Uber Eats? Well now they’re driving in support of a central business, the restaurant, but they’re also a TNC. So which applies? And so we’ve, I think we’ve come to an accommodation in understanding what the regulators will expect there. I, what I believe regulators expect is that if someone’s driving for Uber Eats, they’re in an accident. Primary carrier is their commercial liability coverage, right? They’re driving for TNC, that’s who should be there. If, for some reason liability exceeds coverage, then I fully expect regulators to point back to, kind of, these notices or bulletins and saying, now that they’re coming back to you and they still have exposure, well, do you think you should waive that commercial exclusion? Unclear to me that they have the authority to do that, but I think that’s the way these things are drafted. So just a bit of inquiry that’s out there that might be coming your direction, seeing that you’re involved in these areas. Then the NAIC data call was going to be someone else. I don’t remember who that was. I think Tom.
Andrea, you want to cover that? I know you were looking at it from the surplus lines insurer perspective.
Yeah, sure. Happy to. Yeah so, last week the NAIC announced a data call that the states will be issuing to the insurers licensed in their state, seeking information about basically the impact of COVID 19. There are several spreadsheets that need to be completed through a portal that insurers have to register for. So, so all licensed insurers, including US surplus lines insurers that are, they’re licensed in their home state, will have to complete that. And that, I believe those, those emails are going out now-ish, I think, from the, or letters from the states. The a, a couple of days ago, the NAIC International Insurers Department, which covers the alien surplus lines insurers, also announced their own data call, which is going to be due on June 5th, that insurers have to complete in return by email as well. So it’s, it’s similarly seeking information about the impact of COVID 19on insurers businesses. And looking at, it actually also asks for copies of any similar responses to data calls to domestic regulators, you know, in other jurisdictions, which is bringing up some interesting confidentiality questions as well.
So, Andrea, is this an NAIC template that the individual states are administering or is this—I know, I know in the case of non-US insurers, it’ll go the IID, but for, for the first one you mentioned, is that being administered by the NAIC or by individual states?
So it’s being administered by the NAIC. There’s an NAIC portal that insurers need to log on to. They need to email and get, get access to register for it and do it that way. But it’s just, it’s just that the announcement is coming from the states.
Is it, and is it, do you think, is it more onerous? Same, less onerous than some of the other data calls that individual states have already done? In your view?
That’s a good question. I think it’s maybe, some of the ones I’ve seen from individual states were pretty open ended. I haven’t sat down and compared in detail for, for the admitted insurers one.
It’s surely less onerous than California’s.
Yeah, yeah. So I think, I think it’ll, I think it’ll vary depending on that. I think that’s the reason the NAIC had, a few weeks ago, put out a note to tell people that they were working on this and to tell the states not to, not to hold off on issuing their own data calls for the time being because they were working on their own template.
And it’s, it’s not the same. Like it doesn’t have the component that New York was asking about, basically asking insurers for their coverage positions on this interruption? There’s nothing like that, right?
I don’t believe so. Dan, did you notice, I don’t think in that level of detail, no.
That’s correct. Yep.
Okay, thanks. John Finston, you want to, want to talk about the California updates?
Let me get off mute, mute here. So two, two issues in California that are very much in the forefront. The first being bulletin 2020-3, which is the bulletin where the insurance commissioner requested that insurers consider reduction in premium consistent with rating plans for any policy holder that has been substantially affected by the COVID 19 virus and has had a significant change in the, in its risk profiles as a result of that. So typical example that the department used in the notice was that auto insurance, for example, where people are driving less, and therefore the number of miles that they’re driving is significantly reduced. And to the extent that their number of miles that they’re driving significantly reduced, if you look at most insurers rating plans here in California, that would mean that they would have a lower premium associated with that lower amount of driving. So the executive order, I mean, the, the order issued by the commissioner via a bulletin basically orders companies to assess how their policy holders have been affected by the virus and to, and provide a premium reduction consistent with the rate plans for the period March through April. And I expect that’s going to be extended to include March through May. I haven’t been seen an order doing that yet, though. And, and also based on our conversations with the commissioner, allows companies to prorate March, since March wasn’t a full month that was affected by COVID 19. I’ve been working with number of carriers with respect to complying with this requirement. There, people are working feverishly, quite frankly, especially larger carriers with large books of business, to figure out how to comply. The bulletin is very vague with respect to, or at least I would say vague, the department says provides significant flexibility, with respect to how insurers are to comply. A number of insurers are going to basically provide a, either a percentage discount on the monthly premium. That would be fairly common for personal lines of insurance, like auto or small business, you know, programs where people are insuring restaurants and other types of policy holders that are clearly significantly impacted by the virus. And then there are, but when you get into some of the larger insurers, the bulletin allows you to do that sort of analysis on case-by case-basis. But what it requires is reach out by the insurance companies to their policy holders to basically allow them to access such a case-by-case reduction in premium. Key there is, again, the larger the insurer, the more difficult it is for them to develop that process. And they have, the bulletin basically requires them to develop that process and implement it within the first 60 days, so by sometime in June, and provide a report to the department exactly how they’re implementing the order. And then within 120 days, basically provide a report as to confirming that they’ve reached out to all their policy holders. That reach out, however, that we’ve confirmed with the department can either be directly by the insurers of policy holders, or could it be a reach out to the to the agents and MGAs or producers requesting that from the insurance company, requesting that the agent or producer reach out to the policy holder to determine whether or not they were substantially impacted. So again, that’s something that many insurance companies and MGAs are working on developing that compliance plan. The second thing that is very current out here in California is yesterday, I believe it was, it might have been the day before, the governor issued an executive order. Basically, executive order N-62-20 saying that there is aa rebuttable presumption that anyone who, any employee, that is, is basically working, not at home, at a employers facility and has come down with the virus after March 19th, is presumed to have basically incurred the virus as part, in their place of employment. Therefore, is covered by worker’s comp insurance in California. This is something that will create a significant amount of additional liability for the insurance industry. There are some carveouts in paragraph five of the order, basically provides with respect to disability or disability benefits, they are suspended to the extent that they’re, if the employee is able to obtain either, I think it’s benefits, through some of the federal programs, but it still would provide for health benefits and death benefits via the worker’s comp system. The WCRB is doing an analysis right now of the financial impact of this. They had already performed, there was a similar proposal several weeks ago that would have been applicable only to first responders and essential personnel. And the WCRB had done analysis of financial impact of that proposal and had estimated that the financial impact in California would be anywhere from $2 to $61 billion dollars, with the median estimate at about $11 billion dollars.
This is significantly broader than that, than that initial proposal, because it applies to anyone working in their employer’s place of employment. So it’s not just essential personnel. So the WCRB is revising that analysis now. Now, that analysis also was based on infection curves that were developed fairly early in the, in the COVID 19 timeframe. And California’s been a little bit more successful than some of the other states in flattening the curve. So I think the, the more current analysis will probably take that into, into account. But again, the real exposure here, I think is, this is a long-term expos—you know, change. And if we have a rebound or anything like that, I get the, the amount of exposure created by this order could be fairly significant.
And John, so it sounds like if you’re working, like so, it’s not just going to be limited to being at a facility, right? If I get it on my way home because I pick up food or I’m a delivery drive or—I mean if I come down with the virus and I’m currently working, I guess not at home, but…
There’s a express exclusion for people working at home. So that’s, they’re not covered by this. But anyone who, delivery person exactly, Michael, anybody who is actually working in their ordinary, of course, you know, place of business or delivery driver or something like that would be covered by this.
And that’s, I mean, California, obviously very broad. I, we do think that there are other states that have issued similar orders. Those would be on that, the tracker that we’ve, that we’ve sent around that I think a lot of you have signed up for. So if you’re interested in that there, there may be other states on there that have taken a similar approach. Other states that have addressed this issue have done it as John mentioned where it’s first responders and others that you would expect are in and around the virus all the time. Healthcare workers, etcetera. Most states, if they said anything have limited to those workers, have not, not gone beyond. So what California has done. But I think it is more than California.
Yeah. So it is broader than the other states. And, and there are some minor compromises. As I mentioned paragraph five of the order, it basically says, if you have temporary sick leave benefits, you have to take those sick leave benefits before you’re entitled to the disability benefits under workers comp. That’s basically intended to take advantage of some of the extra benefits under federal law, but again, it’s limited to sick leave benefits, not unemployment benefits and things like that. So, it’s a very broad order. The industry is currently trying to decide how to address it. The, whether that challenged, you know, in court is really up in the air right now. Because there are also pending in California’s several legislative proposals that might be even worse than the executive order. They don’t have some of the provisions that the executive order has. And the governor has basically told the industry that if you if you oppose this executive order, then I’ll work with the legislature to get something worse for you.
So and, and he said, but if you don’t oppose the order, I’ll basically veto anything coming out of the legislature. If you work with me, I will work with you. So, we’ll see.
Got to love California. Got to love California.
Yep. So that’s, that’s what’s new out here.
Dan, do you want to talk about the travel insurance class action that was filed this week?
Yeah, so we won’t spend much time on this, but … found this one. This is, as far as we know, it’s the first reported class action in the travel insurance space. It’s got some of the exact same issues that Mr. Halsband and Mr. Byrne already mentioned with respect to the, the business interruption coverage. The plaintiffs are just saying, look, I was supposed to go on a trip, I couldn’t. Surely you must know me money. And not a lot of detail on the policy wording. It’s more of an emotional thing. So it’s been filed in Illinois. They do cite, of course, you know, the actual coverage terms, those types of things. But could be another wave of class action similar to business interruption. But just something to watch this space and especially if you’re already, if you’ve got this book of business, and I know some of you on the on the call do, just start seeing how consistent your exclusions are, those same type issues, same type of issues that you’re looking at on the business interruption side.
Thanks, Dan. Andrea, do you want to talk about electronic filing signatures and all that other exciting stuff?
Sure. Happy to. But before that, I did want to circle back to your question on the NAIC data call for a second. I had a chance to refresh my recollection on the survey for the admitted insurers because I’ve been looking more at the surplus lines one. It’s basically a split into two. There’s two key spreadsheets that insurers need to complete, and one is providing information on premium for policies that cover business interruption for states. And the other template is providing information on claims for, for business interruption coverage. So it’s not, it’s actual claims, not, not some coverage positions or potential, you know, guesses and exposures. And there’s no narrative questions just those two.
Right. So facts, not— great, thank you.
Exactly. Sure. The one for surplus lines insurance, by the way, for aliens, is actually more, more open ended. And it’s kind of essay form. FYI. So the electronic filings and signatures. Well, there’s been a couple of different approaches that, that states have been taking. If you’re, you know, following our tracker charge, this information is on here as well, but nearly every state has done something with respect to electronic filing and signatures, whether it be allowing remote notarization during this state of emergency, or whether it just be reminding carriers that they are already allowed to do electronic signatures or electronic filings. Or letting them know that they can do it temporarily. A common approach has been to allow people to do filings, insurers and producers to make filings electronically for the duration of the state of emergency, or maybe plus a few days. But then, within usually 60 days after that to follow up with a hard copy. You know, notarized or whatever, you know, requirement there may be full hard copy, normal signed document. So there is an indication that it seems like a number of states are, at least for the time being, assuming that once the state of emergency is over, they’re going to go back to normal with, with doing filings and hard copy as they used to. But some of the some of the bulletins or orders are a bit more open ended it and don’t have, you know, an end date. So it is possible that, you know, some states may realize once they set up this flexibility that, actually, it’s easier for all parties to do these kinds of filings electronically.
Yeah. Yeah, I think that’s the area where we’ve talked about on a couple of these calls. Where, when, when, when, when the time is appropriate, and it’s probably not yet, some kind of outreach to these states, or all states, to continue those, the relaxation of those requirements as just not being necessary. I think there will be, again, there will be a time where if we wait too long, the argument is going to be harder to make. But you also don’t want to do it too soon because it seems insensitive with everything going on right now. So we’ll have to continue to keep that in the back of our minds as a way to, to pursue that coming out of this in addition to some of the other issues we, we flagged before. You guys, Andrea, you and Dan have been, have been doing a lot of the work on the tracker. Any sense yet as to extensions of the emergency orders or emergency regulations as some states don’t open, reopen the economy or come back to some limited workforce? Any, any sense yet of any extensions or new items coming out as maybe this this lasts longer than insurance regulators thought it would about a month and 1/2 ago?
Sure. I mean, I think a few states, a couple, have extended their, you know, emergency grace periods for the most part. And I don’t know, Dan, if you’re, you’re seeing the same thing. But I think for the most part, most states are still within their, you know, emergency moratoria, whatever temporary measures they, they published. So, we haven’t seen really many extensions yet. One interesting one to watch is, is Louisiana, where they have the emergency rule that expires, they’re supposed to expire on May 12th. And that’s quite a quite an interesting political situation going on there, where I think the state legislature is looking to come up with a plan to limit the governor’s authority to declare state of emergency and may actually get some emergency legislation passed to terminate the state of emergency earlier than May 12th, in which case the rule would terminate earlier than it was planned to. But the governor is also meant to make an announcement on May 11th about the state of emergency, so we may see, we may learn then that it’s extended. So, for example, I think there’s probably a number of these political debates going on in a, in a few states.
We’ll keep an eye out for those. And, sure, that will be a topic. Especially if we don’t reconvene until after Memorial Day. We’ll have obviously a better idea of what the future looks like. Hopefully, it looks less bleak than we see some, somewhere every day. You want to just cover New York real quickly? I know there was an update on the FAQ that the department put out on the, on the emergency grace period for a payment of premium.
Yes, sure. So I’m trying to remember when we, when we last had our call. So the, the FAQs that New York had put out with respect to their emergency regulation and their moratorium on cancellation and non-renewal for 60 days, which, which was published on March 30th. The, they, the department had added to their FAQs few weeks ago to say that it does not apply to commercial excess lines policies covering the peril of fire. And so, well they said commercial fire insurance policy is written on an excess lines basis. And then this, I believe this week, it’s not dated, you just notice that it happens, they updated their, their FAQs, further to clarify that when the department says that it, the, the order applies to excess lines commercial policies covering fire, they need any policy covering the peril of fire. So whether on its own or in combination with other perils. So that, you know, potentially isn’t of any, any property policy, any all-risk policy in New York issued on that commercial…
Right. And that’s, and that’s consistent with their position after 9/11 on use of terrorism exclusions in the standard fire policy. So it’s any covering any peril of fire, the emergency order and regulation requiring a grace period for payment of premium does apply to commercial excess line policies if they cover the peril of fire. Is that, is that accurate?
Yes, that is accurate.
And that’s a, that’s a change from their position of a few weeks ago, but consistent, I guess, with their position over the past 17 years or so on that issue. So, just wanted to update everybody on that. There’s just one question on here. Let’s see. I don’t know if you covered that Andrea, an update regarding extending emergency order in New York. It came out yesterday. I don’t know if that’s come across your, your screen yet, but sounds like they’ve extended the moratorium.
The question—well the, so the grace period is well, I just said that they’re currently in effect through the end of the state of emergency. So yes, I think if that’s extended, then it may be extended right now. The DFS website, I think, still has on there that it’s just through, t’s just for 60—they still have the guidance on there that it’s for 60 days from the, from, from….
Yeah, I think it came out, getting from, from Mike Black here, that it came out last night, so we’ll, we’ll look at that. And add that to the tracker.
It will begin today’s update.
Yeah, yeah. It was late last night, I think, from, from the governor. So, thank you, Michael. For that update, that will be in the tracker. And then if anything comes out of that, we can, we can talk about next call or in the interim. If no other questions, we can cut, we can cut this a bit short. Thanks, everybody again for joining us. Look for the updates to the tracker or sign up if you haven’t already. And we will be back in touch about following up, reminding you about the next call, which is on May 29th, I believe. And then there was a survey for any topics you’d like to see us cover. And we will let you know what the results of that were. So thanks, everybody. Stay safe. Have a great weekend. And we’ll talk soon. Thanks.