Tuesday, March 5, 2013 Houston, TX. 4:15 5:30 p.m. BUSINESS INTERRUPTION CHALLENGES

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1 Tuesday, March 5, 2013 Houston, TX 4:15 5:30 p.m. BUSINESS INTERRUPTION CHALLENGES Presented by Raymond S. Hutnik, CPA, CFE, CFF, FCPA Tracy Alan Saxe, Esq. Managing Director Marsh Risk Consulting Partner Saxe Doernberger & Vita, P.C. Donna Stone, CIC, ARM, CRM, CPCU Director of Insurance and Risk Management GDF Suez Energy North America When operations are disrupted to the extent that normal operations can no longer be maintained, the loss of revenue can be substantial. This session will consider the various types of coverages available to cover business interruption risks (i.e., loss of hire, loss of use, extra expense, and contingent business interruption risks), and factors to consider when buying coverage will be reviewed. Since many large business interruption claims involve disputed areas of policy interpretation, the session will also review how claims are settled. Copyright 2013 International Risk Management Institute, Inc. 1

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3 Raymond S. Hutnik, CPA, CFE, CFF, FCPA Managing Director Marsh Risk Consulting Ray Hutnik is a senior managing consultant for Marsh Risk Consulting s Forensic Accounting and Claims Services (FACS) Practice. Based out of the Philadelphia office, he serves as the FACS Northeast Region leader. Mr. Hutnik s responsibilities include supervising a staff of experienced professionals in the preparation and review of financial damages claims and insurance valuations where accounting expertise applies. Mr. Hutnik joined Marsh Risk Consulting in He focuses his practice on providing forensic accounting services in the measurement of damages, valuations, and financial investigations. The services are provided on both a national and international level. Mr. Hutnik is presently involved in the supervision of numerous financial investigations, utilizing a staff of experienced professionals to assist in the completion of the assignments. His projects encompass a wide variety of industries, including manufacturing, chemicals, life sciences, education, tech/telecomm/media, hospitality/gaming, retail/wholesale, power/utilities, financial institutions, and professional services. Since 1985, Mr. Hutnik has focused his career entirely on investigative auditing, the measurement of damages, and forensic accounting. He has diversified experience in matters dealing with loss of earnings, loss of profits, product liability, business valuations, stock losses, property losses, fidelity losses, arson, and fraud. He has also provided deposition and expert witness testimony services on various matters related to financial damages measurement and valuation. Mr. Hutnick holds a B.A. in economics from Rutgers University, New Brunswick, New Jersey. Tracy Saxe Partner Saxe Doernberger & Vita, P.C. Mr. Saxe is a skilled commercial litigator with more than 25 years of trial experience. Since 1990, he has focused his practice on insurance coverage issues, disputes, litigation, and trials on behalf of policyholders, handling cases involving coverage for comprehensive general liability, directors and officers, professional liability, builders risk, subguard, first-party property damage, additional insured, business interruption claims, and crime bonds. Mr. Saxe has handled cases involving coverage for construction defects, completed operations, product liability, property damage and bodily injury related to mold and asbestos, bodily injury related to construction, sick building syndrome, environmental claims, business interruption, employment disputes, patent infringement, contempt, RICO, unfair practices, breach of fiduciary duty, bad faith, and professional 3

4 malpractice. He is well versed in issues relating to late notice, allocation, subrogation, contribution, indemnification, and the duty to defend. Mr. Saxe was a principal at the law firm of Sachs, Berman, Rashba & Shure, P.C., from 1987 to He joined that firm following 4 years as an associate with Wofsey, Rosen, Kweskin & Kuriansky in Stamford, Connecticut. During that time Mr. Saxe tried numerous civil and criminal trials, including a murder trial in which his client was acquitted based upon self-defense. He left in 1994 to open the Connecticut office of Anderson, Kill, Olick & Oshinsky, a firm specializing in insurance coverage on behalf of policyholders. In 1996, Mr. Saxe founded Saxe Doernberger & Vita, P.C. Mr. Saxe has successfully tried numerous jury and court trials in state and federal courts, has litigated cases before the federal, state trial, and appellate courts in Connecticut, New York, Pennsylvania, Virginia, Maryland, Massachusetts, California, Washington state, Texas, Florida, Delaware, Indiana, and Michigan, and has successfully mediated and arbitrated many disputes. Mr. Saxe has been an adjunct professor of law at Quinnipiac University School of Law where he has taught courses in insurance law. He is also a frequent lecturer nationally on insurance coverage topics. Mr. Saxe holds a J.D. from Georgetown University Law Center, 1983, and a B.A., policy studies, magna cum laude, Phi Beta Kappa, from Syracuse University, His admissions include the state courts of Connecticut, New York, District of Columbia, Commonwealth of Pennsylvania, and Washington State. His federal court admissions include U.S. District Court, District of Connecticut; U.S. District Court, District of Columbia; U.S. District Court, Southern District of Indiana; U.S. District Court, Eastern District of Michigan; U.S. District Court, Southern and Eastern Districts of New York; U.S. Court of Appeals, Second Circuit; U.S. Court of Appeals, Sixth Circuit; U.S. Court of Appeals, Seventh Circuit; and U.S. Supreme Court. He is American Bar Association Insurance Coverage Litigation Committee (ICLC) Construction Subcommittee cochair and ABA ICLC Program Committee co-vice-chair. His other professional activities include membership in Association of General Contractors of America and the Connecticut Bar Association. Donna L. Stone Director of Insurance & Risk Management GDF SUEZ Energy Ms. Stone s focus is identification and analysis of corporate property and liability risks, including placement and administration of various insurance risk transfer programs. Previously, she was insurance manager for Texaco/Chevron. 4

5 Ms. Stone has worked in the insurance industry for over 38 years and has held positions in multinational insurance brokerage firms and insurance companies and as an independent insurance consultant in the private sector. She is a licensed General Agent and Risk Manager in the State of Texas and holds several professional designations including: Chartered Property Casualty Underwriter, Associate in Risk Management, Certified Insurance Counselor, and Certified Risk Manager. 5

6 Notes This file is set up for duplexed printing. Therefore, there are pages that are intentionally left blank. If you print this file, we suggest that you set your printer to duplex. 6

7 Business Interruption Challenges Presented By: Raymond S. Hutnik, CPA, CFE, CFF, FCPA Marsh Risk Consulting Tracy Alan Saxe, Esq. Saxe Doernberger & Vita, P.C. Donna Stone, CIC, ARM, CRM, CPCU GDF Suez Energy North America RECENT CATASTROPHIC LOSSES A SIGN OF THINGS TO COME? 2012 was a quiet year until Superstorm Sandy, Q

8 OBTAINING APPROPRIATE INSURANCE Direct physical damage Time element losses Contingent losses Civil authority Increased building costs Ingress/Egress Service interruption Preservation of property Valuable papers Loss adjustment consultant coverage 3 PREPARING FOR THE UNPREDICTABLE ENSURING THAT LOSSES ARE FULLY RECOVERED: STEP ONE Step one: work with your broker and confirm that policy coverages and limits for your property and potential loss of income are sufficient How accurate are your reported values for property and business interruption? Test your business income limits, and calculate your anticipated maximum business interruption loss amount for key locations Are deductibles too high (flood, earthquake, wind)? Are limits and sublimits sufficiently high (property, BI, service interruption)? Are contingent business interruption (CBI) coverages in place for both direct CBI and indirect CBI events? Exclusions, waiting periods, valuation considerations 4 8

9 PREPARING FOR THE UNPREDICTABLE ENSURING THAT LOSSES ARE FULLY RECOVERED: STEP TWO Step two: have your team in place In-house team - Risk manager - Claims manager - Safety manager - Corporate counsel - Operations, finance, IT Outside experts - Claims advocacy - Forensic accounting - Claims engineering - Legal 5 COVERAGE OBLIGATIONS Don t lose coverage because of an oversight! Timely notice Protect evidence, including computer information and s Responding to insurers/outside adjusters Proof of claim compliance Preservation of property (sue and labor) Avoidance of voluntary payments Independent appraisal (sometimes) 6 9

10 TYPES OF COVERAGE CIVIL AUTHORITY AND SERVICE INTERRUPTION Losses caused by acts of civil authority that impact access to their facilities May apply when government acts prohibit access to property of suppliers, providers, or vendors Some policies require a prohibition of access Often limited to 30 days from date of civil action prohibiting access Damage to utility (electric, gas, data) interrupts service to your location Damage to transmission and distribution lines typically excluded Caused by covered peril (wind versus flood) What happens when utility intentionally shuts down grid to prevent further damage? 7 POST-LOSS ACTIVITIES INITIAL STEPS FOR OBTAINING FINANCIAL RECOVERY Perform initial damage assessments Inspect loss site Take photographs and/or videos to capture extent of damages Create inventory/lists of damaged items Meet with vendors/contractors to obtain replacement cost or repair costs for damaged buildings and equipment Experts needed? Create overall estimate of loss Present estimate to adjuster Adjuster sets reserves Adjuster processes advance payment 8 10

11 MEASUREMENT OF THE LOSS MAXIMIZE RECOVERY BY ALLOCATING TO THE RIGHT COVERAGE BUCKETS Physical damage Buildings, equipment, inventory Sublimits: debris removal, expediting Exclusions: nuclear, environmental Time element losses Business interruption/mitigating costs Inefficiencies and additional costs to operate = extra expenses Time element extensions Extended period of indemnity Contingent time element/cbi Service interruption Ingress/egress, possibly civil and military authority 9 ISSUES THAT INHIBIT SETTLEMENT ISSUES ENCOUNTERED FOLLOWING RECENT CATASTROPHES Period of Indemnity Multiple Perils Consequential Loss Nuclear Exclusion Rolling Blackout Actual Loss Sustained Loss of Market/ Market Conditions Idle Period Concurrent Causation Contingent Business Interruption 10 11

12 CONCURRENT CAUSATION Efficient Proximate Cause Fire Sprinkler Triggered Water Damage Mold Damaged Sheetrock What is proximate predominant, first, or most recent cause? 12 12

13 CBI POLICY LANGUAGE Direct physical loss or damage to a dependent property (supplier or customer) The loss or damage is caused by a covered cause of loss The loss results in a suspension of operations at a location of supplier or customer 13 EXAMPLE OF TYPICAL 2011 JAPAN EARTHQUAKE LOSS SCENARIO Guardsman Nisto Wheaton Digital Indirect Auto Maker 1 Freeweight RENA Indirect Auto Maker 2 National Axle Delta Direct Auto Maker 3 MAX Manufacturing 14 13

14 EARTHQUAKE DAMAGE: RESULTING BI, CBI CLAIMS (EXAMPLE) Policyholder: BI/CBI Loss Guardsman $20 million Nisto $10 million Wheaton Digital $50 million Freeweight $100 million Rena $300 million National Axle $40 million Delta $30 million Max Manufacturing $50 million Insurer 1 $140 million Insurer 2 $245 million Insurer 3 $215 million BI = $300mm CBI = $300mm 15 KEY TAKEAWAYS Being faced with an event... just a matter of time? Be prepared Review coverage Team in place Have your facts and evidence in place Be proactive Take charge of the claims process Differences are inevitable Assess your options 16 14

15 Raymond S. Hutnik, CPA, CFE, CFF, FCPA Marsh Risk Consulting Donna L. Stone, CIC, ARM, CRM, CPCU Director Insurance Risk Management GDF Suez Energy North America Tracy Alan Saxe, Esq. Saxe Doernberger & Vita, P.C

16 Notes This file is set up for duplexed printing. Therefore, there are pages that are intentionally left blank. If you print this file, we suggest that you set your printer to duplex. 16