Category: Latest Thinking

By Colleen Vallen, Forensic Services Practice Leader at J.A. Montgomery Consulting, a Conner Strong & Buckelew Company

Business interruption is a leading risk concern for many businesses, and rightfully so. While business interruption claims have always been complex, never have they been more so than in this post-pandemic world.

The COVID-19 pandemic has interrupted business operations in ways never before thought possible.  Lockdowns, mask mandates, supply chain disruptions, demand changes and constantly changing capacity restrictions have had significant impacts on businesses of all shapes and sizes. Making matters more complex, there was no way for many businesses to predict what would come next or how long it would last. These challenges and changes significantly affected the operations and financial performance of countless businesses. For many, this was a negative impact, but we can’t discuss those without also considering businesses with positive impacts. Regardless of the nature of the impact, what is consistent is the financial performance for many businesses historically looks different post-COVID than it may have in the past. Further, it may continue to look different into the future.

Considering the magnitude and complexity of this worldwide event, I have seen significant changes in the way business interruption claims are being evaluated and will continue to be evaluated in the future. Thankfully, there are several steps businesses can take today to better prepare for these changes and maximize the recovery they receive as a result of a post-pandemic loss event.

For any company impacted by COVID-19, here are the three biggest changes I have seen in non-COVID-19 business interruption claims to date. I expect these will continue in the years ahead.

1. Claims will be more complex

Going forward, business interruption claims will be much more complicated and require more time and resources to investigate. The COVID-19 pandemic impacted every business in a multitude of different ways, including shutdowns, labor shortages, supply chain issues, demand changes and more. Identifying each of these impacts, when they started, how long they lasted and their ultimate financial impact involves complex analyses.

2. Traditional trend analysis may not be applicable

Claims analyses traditionally included an analysis of past performance when calculating a business interruption loss. However, the pandemic has impacted the financial performance of many businesses significantly over the last two years. Some businesses were forced to restrict capacity which reduced revenue, while others saw skyrocketing demand which drove up revenue. Others saw significant labor impacts (employee layoffs, increased hiring, rising labor costs (salary and hourly rates)) which impacted the business’ overall cost structure. Due to the varied financial impacts, the financial results reported during the pandemic or during portions of the pandemic may not be indicative of future performance. This makes calculating a business interruption claim a much more complex and difficult task.

3. Defining “period of restoration” will remain a challenge

The period of restoration will also likely continue to be impacted by the COVID-19 pandemic. Supply chain issues and labor shortages experienced today may persist for years, impacting restoration time frames.

How businesses can better handle their next claim

There are a few steps all companies can take before and after a business interruption occurs to better prepare for their next claim. As the above business interruption challenges persist over the next several years, taking these steps will vastly improve a company’s chances of maximizing the recovery they receive down the line.

Before an interruption:

Businesses will be well served by proactively taking time today to fully understand how the pandemic has impacted their business and its finances so far. Whether it was a government-mandated shutdown, capacity restrictions, supply chain issue, change in demand or a shortage of labor (or all of the above and more), identifying the change as well as taking detailed notes on how it impacted financial performance will save time down the road and help companies best answer questions from carriers during the claim process.

After an interruption:

When an interruption occurs, taking detailed records will be critical when building a case for a business interruption claim. Businesses should consider preparing a timeline documenting changes to operations, tracking key business metrics, and detailing specific event-related business activity like cancellations. A business should also document any challenges or expected challenges it sees in obtaining permits, materials, contractors, etc. which would impact repair times. Bringing in business interruption claims experts with knowledge of what information carriers seek, what questions they ask and what documents they request can also help companies make a stronger case to carriers when the time comes.

Don’t go at it alone

When faced with a business interruption, business owners will need to spend their time managing the disruption and getting operations back on track instead of managing the many different challenges of filing a claim. These business leaders should lean on experienced counsel who can take care of the details and guide their team through the process while they focus on taking care of their employees and customers. At Conner Strong & Buckelew and J.A. Montgomery, our teams have decades of experience navigating business interruption claims and have helped countless companies through complex COVID-19-caused interruptions. Business owners are best served taking time today to prepare for their next business interruption to avoid being caught flat footed when the next interruption strikes.

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By Lisa Vanore

For some organizations, preparing for a catastrophe is embedded into business operations and always top of mind. For others, it might not even be on their radar. The truth is damaging incidents can happen anytime, anywhere. Catastrophic claims can arise regardless of the industry or size of a company and have the potential to bankrupt an organization if not protected.

The value of a claim is not always directly correlated to whether a claim is defined as catastrophic. While some types of claims are immediately identified as catastrophic, others are not easily identifiable and may develop over time. Catastrophic claims can include fatalities, serious injuries, incidents that involve multiple claimants or class actions, and events that threaten an organization’s reputation.

Catastrophic events are often unexpected but having mitigation tools in place can lessen the blow and help organizations quickly respond to and manage an incident. Partnering with brokers with a thorough understanding of the steps to take when a catastrophe occurs is key to ensuring your business is in the best possible position.

Mitigating Loss When Disaster Strikes

When a catastrophe occurs, the way in which an organization responds can change the nature of a catastrophic claim and affect the ultimate outcome. Here are the key steps organizations should take following a catastrophe:

1. Respond quickly – The top priority should be protecting people, making sure all employees and those involved are safe and receive proper care. Report the incident promptly to the insurance carrier, as delays can negatively impact the complexity of the claim and the cost. A broker should be brought in as soon as possible to help manage reporting timelines and push the process along if carriers are slow to assign an adjuster to investigate the claim.
2. Manage the loss – Secure any and all evidence from the incident. A thorough investigation should be conducted and, if applicable, defense counsel should be brought in. Depending on the type of incident, other resources, such as experts, may also be needed.
3. Determine claim strategy – Work with claim management partners to determine a strategy that ensures the least impact on the bottom line, whether that’s early settlement, litigation, or otherwise. At this stage, organizations should strategize how to find a resolution that makes sense for all parties involved.

Preparing for the Unexpected

Having the appropriate mitigation practices in place before an incident occurs is also fundamental to improving outcomes. Without them, organizations can end up with increased costs and losses. To ensure prompt and effective response, the following preventative measures must be in place:

• Loss prevention and training procedures – Organizations should have processes and procedures in place that are designed to prevent losses and minimize the impact of catastrophic events before they occur. All employees should be trained on these processes and procedures so that they can act quickly during an incident and prevent further loss from occurring.
• Crisis management and emergency response planning – Crisis management and emergency response plans should be in place and should outline procedures and actions that need to occur following an incident. An insurance broker can help organizations conduct risk assessments to determine potential crisis scenarios and identify what needs to be included in response plans to be best protected.
• Incident reporting and investigation procedures – Create and implement incident reporting and investigation procedures that clearly define what types of incidents are reportable to key stakeholders and who within the organization is responsible for reporting such incidents. Without a process for alerting various internal and external stakeholders of incidents, critical actions may be missed, ultimately adding to the complexity of the claim. When these procedures are in place and executed successfully, organizations can identify incidents early and triage effectively in an effort to prevent the incident from turning into a catastrophic claim.
• Claims management process – Organizations also need to establish a claims management process that outlines reporting procedures and names strategic partners, including carriers, expert advisors, and defense counsel. Having key partners in place prior to an incident will ease coordination efforts and reduce friction between parties when it comes to determining a claim strategy.

Taking Control of the Outcome

Insurance carriers are paying billions of dollars each year for covered catastrophic losses. Rising litigation costs, plaintiff-friendly legal decisions and larger jury awards as a result of social inflation are leading to increased payouts, losses, and coverage costs.

In this environment, it is increasingly important for businesses to prepare for catastrophic events and have the right partners in place to help. An insurance broker can be an invaluable resource when an incident arises, providing advice, consult, and guidance throughout the claims process.

At Conner Strong & Buckelew, our insurance brokers lead the industry in catastrophic claims guidance and have strong relationships with carriers to ensure coordination and the best possible outcomes for clients. Our robust team of claims consultants and safety experts work side by side with our clients to deliver a holistic approach to managing and preventing catastrophic claims, with expertise in managing claims and implementing safety and risk control programs.

To review your current coverage and make sure you are protected when catastrophe strikes, contact a Conner Strong & Buckelew representative.

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BY Jim McGlynn,  Michelle Leighton, Travis Shaffer, Juanita Gadsden

As all New York property owners and general contractors know, Section 240 of  New York State Labor Law, the official name of the state’s Scaffold Law, presents a wide range of legal, insurance and risk management challenges. While originally passed to protect construction workers from serious falls, falling objects and other elevation-related accidents, the Scaffold Law has evolved into a major area of risk that can lead to multi-million-dollar lawsuits.

The Scaffold Law imposes strict liability on property owners and general contractors in the event of an elevation-related accident on a job site. Because of this, injured workers who would normally receive workers’ compensation from their employer also have the ability to file tort lawsuits against the owner or contractor for additional damages. Even if the worker was partially at fault for the accident, property owners and contractors can find themselves being held liable for damages.

Famously high payouts have occurred as a result of these lawsuits, causing considerable financial damage for the defendants. For example, a New York county jury previously awarded $96 million to the families of two workers who were killed during a workplace accident in 2015. The prior year, a jury awarded $62 million to an injured worker who fell from a building roof while on the job.

These lawsuits negatively impact property owners and general contractors in a number of ways. Aside from leading to increases in defense costs and multi-million-dollar claims, the Scaffold Law has led to increased insurance costs that drive up overall construction costs in New York. These additional expenses elevate the total construction costs of a given project by as much as 10% on average, according to a recent report from the General Contractors Association of New York.

As insurance brokers for many general contractors and property owners in New York, we understand the importance of mitigating risk, maintaining worker safety and keeping insurance costs down. In our decades of experience working with New York contractors and property owners, we’ve identified three ways these organizations can limit their exposure to the Scaffold Law. Here’s how:

1. Taking enhanced workplace safety measures

In general, and particularly considering the Scaffold Law, taking a proactive approach to worksite safety is critical. Property owners and contractors should start by ensuring scaffolds, ladders and other access points to the worksite are properly designed, constructed,  and well maintained. Similarly, all construction and safety equipment must be inspected regularly to confirm they are in good working condition.

Worker training is another crucial aspect of mitigating risk and liability. Contractors and property owners should consider creating a system to verify that every worker on-site has been properly trained on general safety, but also on jobsite specific hazards that may be encountered on a project. Contractors and property owners should also properly document and maintain records of all education and training for workers, as well as safety meeting attendance.

Hiring subcontractors with strong track records of safety performance is also important. Starting this due diligence process by reviewing their qualifications, verifying their licenses and searching their citation history on OSHA’s website are good places to start. Additionally, contractors and property owners should consider hiring a site safety manager to oversee any worksite where elevation-related accidents could take place.

2. Signing risk-transfer agreements

One of the most critical steps property owners and general contractors can take to limit their exposure to lawsuits is to contractually transfer their potential Scaffold Law liability to subcontractors. By writing appropriate language into their contracts, including hold-harmless provisions and broad indemnity agreements, property owners and contractors can shield themselves from liability in the event of an accident.

New York law is unique in that it voids construction agreements that attempt to transfer a party’s liability for its own negligence. Therefore, property owners and contractors need to ensure these agreements are written such that negligence is not a factor that triggers these protections. Additionally, property owners and general contractors should require subcontractors to name owners and general contractors as additional insureds on General Liability and Umbrella / Excess liability insurance policies to ensure these subcontractor organizations have the financial means to honor their indemnity agreements.

3. Pursuing rigorous workers’ compensation claims mitigation

Another way to mitigate risk is by taking an ultra-responsive and thorough approach to workers’ compensation claims, especially those with the potential to turn into Scaffold Law-related claims. Property owners and contractors must promptly report all workers’ compensation claims and quickly develop a mitigation strategy. By getting ahead of the claim, policyholders can control it from the onset. A field investigator should be assigned to conduct a full on-site investigation immediately after the accident, and legal counsel should be brought in early to mitigate risk and form a defense strategy in case a lawsuit is eventually filed.

It is critically important to preserve all evidence that could be useful in a case, including comprehensive incident reports with photos of the accident scene, and any equipment involved in the incident. This investigation process should also include securing witness statements and contract information for the investigator and defense counsel to use during any follow-up. Time is of the essence. The faster these actions can be performed, the better protected property owners and general contractors will be.

Don’t go at it alone

Issues around the New York Scaffold Law can present general contractors and property owners with serious legal headaches that can lead to  inflated claim values. It is critical these parties not go at it alone. Working with an insurance broker who is familiar with the exposures and claims surrounding the complexity of the Scaffold Law can ensure these organizations have the support they need in the event of an accident. Experienced insurance brokers can help property owners and contractors prepare for these incidents before they arise by establishing a process for responding to elevation-related accidents. With a plan in place and support from an expert team, property owners and general contractors can best protect themselves from a potentially devastating financial situation

By Joe DiBella, Managing Director, Executive Vice President, National Health & Benefits Practice Leader at Conner Strong & Buckelew

New technology, medications, and medical procedures have vastly improved healthcare providers’ ability to diagnose and treat severe illnesses.

These medical advancements are incredible for patients and can save lives. But they are also increasing the frequency and severity of large and catastrophic employee benefits claims. This can lead to financial stress for self-funded employers. In fact, a 2020 survey conducted by Sun Life found that nearly 25% of employers had at least one member with over $1 million in claims between the years of 2016 and 2019.

Large claims will become the norm as medicine continues to advance. In turn, employers need to ensure these claims are managed properly and that they’re not overpaying for certain procedures, treatments, and medications.

ClaimCheck from Conner Strong & Buckelew was built to help self-funded employers accomplish just that. ClaimCheck is a proprietary employee benefits claims screening process that closely examines large and catastrophic claims. It automatically ensures these claims are being properly managed by the complex healthcare system, adjudicated pursuant to the plan of benefits, and paid properly.

ClaimCheck follows a 5-step process that has been methodically developed, ensuring no large claim is overlooked or mismanaged throughout the course of engagement. Here’s how it works:

• Step 1: A claim will be flagged for review by a Conner Strong & Buckelew clinical nurse once it reaches either $100,000 or 50 percent of the client’s stop loss deductible, whichever comes first. The claim is reviewed for eligibility, care management and ongoing monitoring to ensure all needed care management oversight is in place.
• Step 2: If immediately needed, a clinical nurse will review the care management plan and options with the health plan’s care management team. When warranted, the claim will be elevated to the Conner Strong & Buckelew physician Chief Medical Officer for a more thorough clinical review.
• Step 3: Once flagged, these claims remain under “open” management by the clinical team at Conner Strong & Buckelew to ensure appropriate care management. This ensures proper evaluation over the course of the engagement.
• Step 4: Claims remain open until treatment is concluded and/or the client receives applicable stop loss payment. Even after payments are made, claims are monitored for ongoing appropriateness.
• Step 5: Finally, any claim more than $200,000 goes through a case audit of the carrier’s adjudication accuracy of the claim to ensure all claims were paid properly.

With large and catastrophic medical claims on the rise, self-funded employers need to ensure these claims are being managed properly. Overpaying for an already expensive procedure or medication is not an option. With ClaimCheck, these business owners can rest easy knowing their claims are being handled as efficiently as possible.

Contact us for more information on how to ensure your claims are being managed properly.

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Anyone who has experience in risk management will agree with Stanford professor Scott Sagan’s statement that “Things that have never happened before happen all of the time.” Planning for the unknown is inherently uncertain. The high-water line on a Venice canal is only the highest until the next historic flood, just like the largest cyber attack is only the largest until the next bigger one.

Luckily for risk managers and corporate executives, there are tools to help minimize uncertainty. Enterprise risk management (ERM) is one such tool that business leaders in nearly every industry can leverage to better identify, understand and mitigate risk. Conversely, it can help propel an organization forward by embracing the rights risks at the right moments.

ERM is defined as a holistic process of scanning for and identifying, assessing, managing or otherwise treating internal and external risks. What separates ERM from traditional risk management is the emphasis placed on creating a consistent, structured and continuous process that produces a 360-degree view of the risks facing an organization and sharing that view with complete transparency across the entire organization.

This process pushes traditional risk management a step further by approaching risk in a way that accounts for the organization’s strategic business goals. With an intimate understanding of all areas of risk at the enterprise level, business leaders can most effectively allocate their resources in ways that address both insurable and non-insurable risks while aligning with underlying business objectives.

Implementing an ERM process can be a sizeable undertaking, but doesn’t have to be. When properly employed, it promotes transparency of risks between senior staff and board members in ways never before possible. In doing so, businesses can position themselves to thrive today and be prepared to capitalize on opportunities and avoid pitfalls in the future.

In over 20 years of helping implement ERM programs into a wide range of businesses, I’ve identified a number of benefits that nearly every organization can reap through the process. Here are just four of the undeniable benefits of ERM:

1.) Bringing intentionality to your treatment of risk

The number one benefit of an ERM program is its ability to create a systematic and intentional process to identifying and addressing risk. Too often risk management is thought of as an ad-hoc exercise where liabilities are addressed as they are discovered.

ERM provides a repeatable process that can be implemented across the organization to continually monitor and identify areas of liability or opportunity. Most importantly, it introduces the opportunity for business leaders to best address these risks. The result is an ongoing process for continuous improvement and optimization of the organizations’ risk management efforts.

2.) Embedding risk considerations into operational decision making

Risk management assessments aren’t very effective unless they are communicated up and down the organization in ways that allow employees to implement them. When risk management is conducted at the enterprise level, it goes a long way in producing a risk-oriented culture across the entire organization. When managers and decision makers on the front lines can be consulted on and informed of risks facing their departments, they can simply and easily implement risk management best practices into their daily operations.

3.) Breaking down silos to build transparency

Almost all organizations that experience organic growth will naturally at some point end up with silos separating different departments within the larger enterprise. Various operating and staffing units begin working in their own ways based on their own individual mandates and objectives. This can lead to risk management issues when clear lines of communication are missing between silos.

When risk management is implemented at the enterprise level, ERM breaks down these communication barriers and builds transparency into risk management efforts by taking a high-level, holistic approach that is carried out throughout the entire organization.

4.) Comprehensively managing risk with creative solutions

When implemented correctly, ERM programs are able to help business leaders find creative solutions to various areas of risk facing their organization. For example, these solutions can include alternatives to traditional insurance programs, such as captive insurance, that allow companies to gain greater stake in their insurance costs and risk management programs.

Alternative finance structures can provide organizations with the opportunity to add to their bottom lines when claims are low, while staying protected when the unfortunate occurs. With an enterprise-level view of risk management and insurance needs, it becomes much clearer for decision makers on when and how to implement creative solutions.

Leveraging ERM Expertise

While the benefits of ERM are clear, many business leaders are hesitant to dive into an ERM program because it can be difficult to know where to start. Partnering with a broker experienced in implementing ERM programs can help.

Conner Strong & Buckelew’s ERM experts are able to provide a strategic hand, whether your organization is looking for a consultant to optimize a specific element of your existing ERM process or a full-fledged partner to help you build a program from the ground up.

With new risks evolving by the day, risk management professionals must think holistically, strategically and at the highest level to protect their organizations, starting with enterprise risk management.