GREEN MOUNTAIN AGENT VERMONT INSURANCE AGENTS ASSOCIATION | APRIL 2020
Insurance & COVID-19 Vermont Insurance Agents Association is a statewide trade association representing nearly 100 independent insurance agencies in Vermont, with more than 900 employees. VIAA member independent insurance agents represent more than one insurance company, and as a result, can offer clients a wider choice of auto, home, business, life and employee benefits.t
Green Mountain Agent is a publication of
CONTENT ________________ April 2020
04 Letter from the President YAC Update
600 Blair Park Road, Suite 100 Williston, VT 05495 Phone: 802-229-5884 Fax: 802-876-7912 www.viaa.org
09 Feature: ISO's Business Income Response to COVID-19 15 On the Hill
VIAA Officers President Alan K. Kinney
22 E&O Corner: How to Handle Questions Concerning Possible Coronavirus Related Claims
Vice President Dan Rodliff Secretary/Treasurer Michael Barrett National Director Ron Bixby
25 Feature: Coronavirus State, Federal Officials Eye Business Interruption Intervention
Directors Chip Ams Erin Odell, CIC Paul Plunkett Jessica Fleury Ex-Officio
29 Feature: Coronavirus & Workers' Compensation
Staff
35 Insurance Commentary: How the Insurance Industry CAN Help with the Coronavirus Pandemic
Executive Director Mary Eversole mary@viaa.org
39 Company/Agency News
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LETTER FROM THE PRESIDENT ______________________________ April 2020
Life is uncertain right now and many of you are facing hard decisions about your businesses and protecting your families. Here at the association, we are doing everything we can to protect your business so you can take care of your family and your staff. We fought and won the battle to keep you running as an essential business. Whether you are working virtually or in your office, you can remain 'open for business' to serve your customers. We have compiled credible and well-sourced resources for you to use on our website, a one-stop shop you might say. Bookmark our page so you can access it easily. We, along with the Big I, are delivering training to help you with the unknown, like telework and other important issues that are evolving daily.
Alan Kinney VIAA President And we won't stop. Stay in touch with us, give us your questions, tell us what you need. We will do our best to help facilitate you through this quickly changing environment. This issue of Green Mountain Agent is focused on this worldwide Covid-19 pandemic and features information that is vital and relevant to you and your agency.
We will come through this and we will rebuild, so stay with us and we'll tackle it together.
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ISO'S BUSINESS INCOME RESPONSE TO COVID-19
BUSINESS INCOME
By Chris Boggs COVID-19, better known as the Coronavirus, originated in Wuhan, China. Latest theories point to bats and snakes as the origination points of the virus. Bats with a strain of the virus were hunted and eaten by snakes. The snakes were hunted, gathered and sold for food in markets within the Wuhan province. The disease-laden snakes were eaten by humans transmitting the virus to humans; at least this is the theory. (It's rather ironic that a mammal would transmit the virus to a reptile that transmitted the virus back to mammals.) According to the Centers for Disease Control (CDC), the Coronavirus is thought to be transmitted person-to-person through “respiratory droplets produced when an infected person coughs or sneezes … these droplets can land in the mouths or noses of people … or possibly be inhaled into the lungs." Major manufacturing operations in China have reportedly slowed or even ceased operations, travel into and out of China is at a bare minimum, and supply chains are severely disrupted in many industries. In reality, the ultimate global economic impact of this virus will remain unknown for many months after the danger and fear have passed. (Another irony of this virus is that some operations have enjoyed increased business. My neighbor teaches students in China online; since the outbreak of this virus, her student count has increased dramatically as kids are staying home to attend classes.) The Virtual University continues to receive calls and emails nearly every day regarding
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the insurance implications of this virus, and the most common question relates to business income, specifically: “Is there business income coverage if a governmental authority (civil authority) requires businesses to close?" No, there is no business income coverage. This is the short answer. Before business income responds there must be damage to property leading to the cessation of a business. This requirement applies to business income dependent property losses (supply chain) and civil authority losses covered by business income policies. Additionally, there is a specific property exclusion applicable to viruses that may (generally will) apply. This is true of “standard" business income forms; there may be some proprietary forms that respond, but these are rare. Insurance Services Office (ISO) continually monitors emerging issues and trends that may affect the insurance industry, and the unknown ultimate result of this virus certainly qualifies as an emerging issue. In response to the Coronavirus, and because many if not most policies contain a virus exclusion, ISO created two business income endorsements as a specific response to the Coronavirus:
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ISO's Business Income Response Continued Business Interruption: Limited Coverage For Certain Civil Authority Orders Relating To Coronavirus ─ Edition February, 2020; and Business Interruption: Limited Coverage For Certain Civil Authority Orders Relating To Coronavirus (Including Orders Restricting Some Modes Of Public Transportation) ─ Edition February, 2020 Note that neither endorsement is assigned a form number. Why? Because ISO did not file these endorsements on behalf of the industry. Rather, ISO made these advisory forms available for use by any member carrier. Any carrier that desires to use either or both endorsements must file them with the relevant regulatory authority. (On a side note, if ISO had filed these endorsements, both would have been assigned a CP 15 XX number because they are business income endorsements.) Coverage provided by both endorsements: Begins immediately upon suspension of the insured's operations (there is no waiting period). Extends for the time period specified in the schedule. Is provided on an annual aggregate basis limited to the amount stated in the Schedule. Both endorsements: Provide limited coverage when/if there is a suspension of operations due to closure or quarantine at the insured location ordered by a civil authority attempting to avoid or limit the spread of infection by a Coronavirus. Extend dependent property coverage (contingent business income) for named locations, if the policy includes dependent property coverage, when there is an interruption in the insured's business due to closure or quarantine to avoid or limit the spread of infection by a Coronavirus ordered by a civil authority at the dependent property.
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Apply to income loss suffered by insureds operating from a vehicle or mobile equipment, if the policy is endorsed to recognize such vehiclebased operation. The Business Interruption: Limited Coverage For Certain Civil Authority Orders Relating To Coronavirus (Including Orders Restricting Some Modes Of Public Transportation) ─ Edition February, 2020, contains one additional feature not found in the other endorsement. This endorsement adds coverage if the insured suffers a suspension of operations due to mandated closure or restricted usage of public bus, rail or ferry lines or related stations or terminals serving the area where the insured's business is located. Lastly, both endorsements specifically exclude: Intentional action by any person, group, organization or sovereign state to introduce or spread the virus; Costs to clean, disinfect, dispose of or replace any property; Costs to disinfect or dispose of any bodily fluids or waste materials; Costs of testing for or monitoring the presence or absence of the virus; Loss or expense due to fear of contagion, e.g., when customers, tenants or vendors avoid a part of the insured's premises not under quarantine; Loss or expense related to absence of infected workers or those suspected of being infected; and any fines or penalties. ISO specifically states in this filing that it has not developed policy-writing or rating rules. Each company is responsible for assessing the exposure for the classes of business written under these endorsements, developing its own rules and filing the forms as required by the regulatory authority. Whether these will be the model for future “pandemic" endorsements from ISO is not clear. For now, it is up to the individual carrier to decide whether to use these endorsements or not.
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ON THE HILL: Big ‘I’ Applauds House of Representatives on Passage of CARES Act
The Independent Insurance Agents & Brokers of America (the Big “I”) thanks the U.S. House of Representatives for passing the Coronavirus Aid, Relief and Economic Security (CARES) Act, which would provide significant funding to fight coronavirus, or COVID-19, while also providing immediate relief to individuals and small businesses all over the country. “The Big ‘I’ commends the House, and especially Speaker Pelosi (D-California) and Leader McCarthy (R-California), for their swift action to help individuals and small businesses,” says Bob Rusbuldt, Big “I” president & CEO. “We are grateful that the House leaders were able to work together to pass this important legislation by voice vote so quickly after the Senate passage to bring this legislation closer to becoming law. The CARES Act includes significant funding to keep Americans healthy while also providing small businesses with immediate tax relief and access to capital.
The $350 billion in small business loans, which would be forgiven if certain criteria are met, will prevent countless workers from losing their jobs and be vital in keeping businesses afloat. We now urge President Trump to sign this package as soon as possible.” The majority of Big “I” members and many of their clients are small businesses and have been deeply affected by government closures and other restrictions, labor force limitations, supply chain interruptions and the curtailment of ordinary activities. This bipartisan agreement between the Trump Administration and congressional leaders would provide approximately $2 trillion in funding to fight COVID-19, keep businesses open and provide individuals with financial assistance. In addition to providing $350 billion in small business loans, the CARES Act would also allow employers to delay the payment of their 2020 payroll taxes until 2021 and 2022, leading to approximately www.viaa.org
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On the Hill Continued $300 billion of extra cash flow for businesses. “The CARES Act is urgently needed to mitigate the damage that the COVID-19 crisis has already caused,” says Charles Symington, Big “I” senior vice president of external, industry and government affairs. “As the pandemic and the federal government’s response continue to
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develop, the Big ‘I’ remains committed to working with the Trump Administration, Congress, our colleagues in the insurance market, and other stakeholders to identify and implement solutions to help businesses and consumers who are dealing with the ongoing health and economic challenges caused by COVID-19.”
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C E O & R O N ER
How to Handle Questions Concerning Possible Coronavirus Related Claims By James C. Keidel, Esq., Keidel, Weldon & Cunningham, LLP
During the past two months, the world has been severely impacted by the coronavirus pandemic. The effects on individuals and businesses have been many and far reaching. Due to the spread of the virus, sporting and concert events have been cancelled, schools have been closed, and the restaurant and travel business has been hit hard. During this time, many insurance agents and brokers have reached out to us to ask how they should handle inquiries from their insureds concerning coverage for potential claims that they many have related to the effects of the coronavirus. There is no doubt that the coronavirus will result in insurance claims being made. But, will there be coverage for those claims? The answer is not entirely clear, but most insurance policies contain exclusions that would exclude coverage for coronavirus related claims. But, whether there is ultimately coverage for a particular claim will depend upon the individual circumstances involved and the language contained in the subject insurance policy. Insurance agents and brokers should be prepared for an influx of claims and remain diligent in their claims handling procedures in order to both help the customers through the process and also protect the agency or brokerage from an E&O Claim during this very uncertain time. As we have cautioned repeatedly over the years, since the insurance company is the one that will ultimately make the determination of whether or not to cover a particular claim, the question is most appropriately answered by the insurance 22
company and not by the agent or broker. If you are faced with a customer who is asking about coverage for a particular type of coronavirus related claim, the best practice would be to have that the customer put the inquiry in writing to you. Having the request in writing will avoid any confusion as to what information is being sought and will provide an easier means for transmitting the inquiry to the insurance company. The quickest and most efficient way to transmit the written request for information is by e-mail or fax. As a general rule, do not summarize or editorialize the inquiry that you receive from the customer. While this may be done with all the best intentions, it might lead to an inaccurate translation of the question or possible confusion. Keep in mind that the more specific the inquiry is that you receive, the more likely an accurate response can be provided whether there is coverage or not. After providing the written inquiry concerning coverage for the potential claim to the insurance company, it is prudent to then request that the company provide its response in writing. If a request for a written response is rejected by the insurance company, this should possibly raise some red flags. Nonetheless, to exercise caution, it may be wise to confirm any conversations in writing, and then be sure to save that writing. It is also wise to forward the verbatim response that is received from
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Questions Related to Coronavirus continued the insurance company back to the person who has asked for the information. Once again, this helps to avoid any miscommunication or information getting lost in translation.
you receive from an insured should be submitted to all insurers an insured may have that may possibly provide coverage for the claim. Again, it should be the insurer that makes the coverage decision and not the insurance agent or broker.
As with any communication that concerns issues of coverage, the agency or brokerage should be certain to retain in the customer's file the writing containing the inquiry, along with the transmittal email or telefax and the response from the insurance company, so that information is available in the event an issue arises later on.
Careful handling of coverage inquiries will help guide the customer in connection with any claim that they may potentially have, even if it is related to the coronavirus. In addition, allowing the insurance company to respond to the inquiry will help the insurance agency or brokerage protect itself against possible E&O claims and lawsuits related to the claim.
One additional thing to keep in mind is that any potential claim or potential claim that
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Coronavirus: State, Federal Officials Eye Business Interruption Intervention
Business Interruption
By Wes Bissett
As millions of individual Americans and businesses struggle in the midst of the unprecedented coronavirus outbreak, policymakers and government officials are considering what can be done to lessen these hardships and to provide financial assistance to people and entities most in need. Unfortunately, some legislators and others are posing ideas that could threaten the insurance industry and undermine the economy more broadly. Some have suggested that insurers be required by law to provide compensation for financial losses resulting from the coronavirus crisis as part of a policyholder’s business interruption insurance coverage. These proposals may be well-intentioned, but they are misguided, misdirected and would place an entire financial services sector in turmoil. Business interruption policies generally do not and were not designed to provide coverage against pandemics of this nature, and it would be inappropriate and troubling for insurers to compensate www.viaa.org
businesses for events that were clearly excluded. Forcing insurance companies to pay for billions of dollars in losses that they did not agree to cover and did not charge for would be unfair and likely unconstitutional, and making insurers absorb these enormous unanticipated costs would have lasting adverse consequences for the national economy and threaten the viability of individual insurers and agents’ markets for their customers. Despite the many flaws with this concept, it has been proposed by a small number of state legislators and members of Congress. One such bill was introduced in the New Jersey State Legislature nearly two weeks ago. This proposal has received considerable media attention, but it was not approved by either chamber before state policymakers tentatively adjourned until early May. Similar bills were introduced this week in Massachusetts and Ohio, but many 25
Business Interruption Intervention continued observers do not expect these proposals to be enacted into law.
retroactively pay unfunded COVID-19 business interruption claims that insurance policies do not currently cover.” They noted that “[b]usiness interruption policies were generally not designed or priced to provide coverage against communicable diseases” and that any proposals to require the payment of claims that are not covered “would create substantial solvency risks for the sector, significantly undermine the ability of insurers to pay other types of claims, and potentially exacerbate the negative financial and economic impacts the country is currently experiencing.”
No federal legislation along these lines has been introduced so far, but several members of Congress have urged insurers to retroactively include coverage for coronavirus losses in business interruption policies or have contemplated legislation mandating such an outcome – either retroactively or prospectively. The Big “I” and three sister industry associations responded in writing to a letter from 18 federal legislators calling for carriers to compensate businesses for these uncovered losses. This week, the Big “I” and two insurer trade organizations jointly addressed a similar call from the Congressional Problem Solvers Caucus and pointed out numerous deficiencies and problems with the proposal.
The National Council of Insurance Legislators (NCOIL) also weighed in yesterday in letters to state leaders and members of Congress. The organization stated that such proposals are “inadvisable for policy and economic reasons” and “very likely unconstitutional,” and they expressed concerns about the damage this would cause to the broader economy. NCOIL noted that legislative action to require payment for such losses would destabilize insurance companies, “render them unable to pay claims for which they did accept the risk,” and “jeopardize the solvency of any number of insurers.”
One of the most distressing aspects of retroactive coverage mandate proposals is that they offer false hope to many Americans who are suffering and do nothing to address the plight of businesses that did not purchase business interruption coverage of any kind. The reality is that any such measure that makes it through the legislative process will almost certainly be challenged in the courts and very likely overturned.
The Big “I” and its members certainly understand the frustration and uncertainty that families and businesses are facing. We are in the midst of a national crisis that requires a significant and swift national response, and the Big “I” will continue to work with state officials and Congress on solutions that address the current economic crisis in the short term and better prepare our country for similar devastating events in the future.
The good news is that most policymakers and regulators have not called for such backward-looking governmental action. In fact, the two most prominent organizations of state officials with expertise in the insurance sector have spoken up and expressed significant concern. In a statement issued by the National Association of Insurance Commissioners yesterday, the regulator group cautioned against and expressed opposition to “proposals that would require insurers to 26
Wes Bissett is Big “I” government affairs senior counsel.
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Coronavirus and Workers’ Compensation
workers' compensation
By Chris Boggs A pandemic is defined as, an outbreak of a disease that occurs over a wide geographic area and affects an exceptionally high proportion of the population." Although the media lives by the motto, If it bleeds, it leads," declaring a pandemic anytime more than a few people contract a virus, this time even the World Health Organization (WHO) is warning of a possible Coronavirus (COVID-19) pandemic. One Coronavirus expert, Professor Gabriel Leung, Chair of Public Health at Hong Kong University, says that unchecked, the virus could infect 60 percent of the global population meeting the definition of a pandemic. My intent is not to accuse the media of sensationalism, nor to intimate that WHO is overreacting (I don't think they are); my purpose is to answer the question, what makes an illness an occupational illness" and thus compensable under workers' compensation? More specifically, how does or might workers' compensation respond to the Coronavirus? Two tests must be satisfied before any illness or disease, including the Coronavirus, qualifies as occupational and thus compensable under workers' compensation: The illness or disease must be occupational," meaning that it arose out of and was in the course and scope of the employment; and The illness or disease must arise out of or be caused by conditions peculiar" to the work.
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Whether an illness arises out of and in the course and scope of employment is a function of the employee's activities. The simplest test toward determining whether an injury arises out of and in the course and scope of employment" is to ask: Was the employee benefiting the employer when exposed to the illness or disease? Be warned, this test" is subject to the interpretations and intricacies of various state laws. Qualifying as occupational" is the relatively low hurdle. The higher hurdle is whether the illness or disease is peculiar" to the work. If the illness or disease is not peculiar to the work, it is not occupational and thus not compensable under workers' compensation. An illness or disease is peculiar" to the work when such a disease is found almost exclusively to workers in a certain field or there is an increased exposure to the illness or disease because of the employee's working conditions.
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Coronavirus and Workers' Compensation continued For example, black lung disease in the coal mining industry is a disease that is peculiar to the work of a miner. Coal miners are subject to prolonged exposure to higher-than-normal concentrations of coal dust leading to black lung disease. This makes the disease peculiar to the coal mining industry. Another example of an exposure peculiar" to the work is a healthcare worker contracting an infectious disease such as HIV or hepatitis as a result of contact with infected blood. The worker's unusual or peculiar" exposure to such diseases results in an illness that is occupational and compensable. Qualifying an illness or disease as occupational and, more importantly, peculiar to the work (and thus compensable) may ultimately require industrial commission or court intervention to sort medical opinion from legal facts. No one test" is available to declare an illness or disease compensable or noncompensable; each case is judged on its own merits and surrounding circumstances. Concluding that an illness is occupational, peculiar to the work and ultimately compensable is not necessarily based on the disease in question but on the facts surrounding the worker's illness. Factors investigated and considered by medical professionals and the court include: The timing of the symptoms in relation to work: Do symptoms worsen at work and improve following prolonged absence from work (in the evening and on weekends); Whether co-workers show or have experienced similar symptoms; 30
The commonality of such illness to workers in that particular industry; An employee's predisposition to the illness (an allergy or other medical issue); and The worker's personal habits and medical history. Patients in poor medical condition (overweight, smokers, unrelated heart disease, etc.) and/or with poor family medical histories may be more likely to contract a disease or illness than others in similar circumstances. Bad habits and poor medical history (and heredity) cloud the relationship between the occupation and the illness. For example, smokers may be ill-equipped to fight off the effects of illnesses to which others may have no problem being exposed. What About Coronavirus? Judged against the qualifying factors presented, does any disease or virus declared a pandemic create a true workers' compensation exposures? Does the Coronavirus crate a workers' compensation exposure? The short answer is, not likely." Other than the fact that the Coronavirus is currently garnering intense attention, in most cases it is no more occupational than the flu. Unless! Only if it is proven that the employee has an increased risk of contracting the virus due to the peculiarity of his or her job might the Coronavirus be considered occupational and thus compensable. Remember, compensability as an occupational illness requires something about the job that increases the risk of exposure and illness.
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Coronavirus and Workers' Compensation continued As intimated earlier, healthcare workers may be able to prove the necessary peculiarity being face-to-face with sick people ALL day to assert a compensable injury.
to the illness even if the employee is working for another employer or even retired at the time the disease manifests itself. The Coronavirus Isn't Special
Which Policy Responds to Qualifying Occupation Illnesses and Diseases?
Coronavirus may be a humankind exposure rather than one peculiar to most employments. Contracting the virus at work is not enough to trigger the assertion that it is a compensable occupational illness. To be occupational and compensable requires something peculiar about the work that increases the likelihood of getting sick. It is unlikely that both the occupational" and peculiar" thresholds can be satisfied to make most illnesses compensable" for the vast majority of individuals; the same is true of the new Coronavirus.
While the Coronavirus has a relatively short gestation period, other occupational illnesses and diseases often have long gestation" periods. Employees may be exposed to the harmful condition for many years before the illness manifests. It is also possible that the employee doesn't contract the disease until years after the exposure ends. The workers' compensation policy specifically states that the policy in effect at the employee's last exposure responds
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How the Insurance Industry CAN Help with the Coronavirus Pandemic
William C. Wilson, Jr. CPCU, ARM, AIM, AMM is the founder of InsuranceCommentary.com. He retired from the Independent Insurance Agents & Brokers of America in December 2016 where he served as Assoc. VP of Education and Research and was the founder and Director of the Big "I" Virtual University for over 17 years. 34
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Recently I posted this analysis of a lawsuit filed in New Orleans seeking a declaratory judgment that business income insurance covers losses arising from governmentmandated business shutdowns or curtailments: "Business Income Insurance...Does It Cover Coronavirus Shutdowns?" I received the following comment on LinkedIn: "A great read Bill. Thank you! I wouldn't presume to say I agree with the analysis (the student still has much to learn from the master), but it is obvious to me that this seems like yet another case of 'we don't care what the contract says, somebody has to pay!' "Understanding that yours is a coverage analysis and not public policy commentary, I do think the insurance industry needs to do more than simply say, 'It's not covered.' Based on what some folks from congress have written and our association responses, I believe we are falling short. "There must be logistical tools that insurance carriers have at their disposal or investment platforms, something that allows us to be part of a solution and not just the brick capped off with a sentiment like, 'We stand behind our clients....'."
techniques other than insurance to address the exposures. But there are things insurers can do that won't bankrupt them. For example, you usually can't reduce coverage mid-term in an insurance contract but you probably can improve coverage without imperiling financial stability. To illustrate, many restaurants are closing their dining rooms and either allowing regulated carryouts or making deliveries. In some cases, servers are now being compensated for driving their autos to make these deliveries rather than serving food in-house. Otherwise, they'd be out of work. So, how about GEICO and Progressive and Liberty Mutual and other carriers that sell personal auto insurance investing the BILLIONS they spend on inane TV commercials into adding 6-month endorsements to personal auto policies that cover food delivery in the event that their policies would otherwise exclude such delivery?
This was my response (edited and updated): I'm not sure there's much the industry can do for the pandemic other than explain why it's not covered. It's a catastrophic exposure. We're talking trillions in costs of all kinds. There is the potential here to bankrupt many insurance companies and, when that happens. there won't be enough in reserves and guaranty fund assessments to pay for losses for which policyholders did pay premiums to cover. Pandemics are a societal and governmental problem, not a business solution problem. It's an issue that requires risk management
'Pandemics are a societal and governmental problem, not a business solution problem.'
How about commercial auto insurers adding broadening endorsements like the ISO CA 99 33 Employees As Insureds on their business auto policies, at least for certain industries? This may adversely impact loss experience, but not significantly much less to the point of insolvency. I believe insurers can do things like this to help and such actions would benefit them, their policyholders, and the country far more than running a bunch of silly commercials. This is just one idea. I'm sure our industry brain trust can come up with all kinds of suggestions to help consumers and businesses while educating them and making them understand why this is such a great and indispensable industry.
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COMPANY & AGENCY NEWS 38
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Co-operative Insurance Companies designated A (Excellent) by A.M. Best Co-operative Insurance Companies' financial strength rating was affirmed at A (Excellent) by insurance industry credit rating organization A. M. Best Company in late 2019. A.M. Best also reaffirmed the outlook on Co-op's rating as stable, demonstrating their continued belief in Co-op's ability to meet its financial obligation to its policyholders. The organization based the rating on Co-op's extremely strong level of risk-adjusted capitalization and low underwriting leverage ratios; its adequate operating performance despite the competitive, regulatory, and weather challenges of a northern New England market; and its appropriate and effective enterprise risk management. "We are proud to have been reaffirmed by A. M. Best with a rating of A (Excellent) and a stable outlook," said Lee Dowgiewicz, president and CEO Elect of Co-operative Insurance Companies. "This rating is not achieved and maintained without the hard work and diligence of our employees, directors, agents and business partners." Founded in 1899, A. M. Best Company is a global full-service credit rating organization dedicated to serving the financial and health care industries, including insurance companies, banks, hospitals, and health care system providers.
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