HOT TOPICS IN INSURANCE A-Z

Transcription

1 HOT TOPICS IN INSURANCE A-Z LEGAL AND REGULATORY PERSPECTIVES PRESENTER PAMELLA RAISON, Senior Corporate Counsel Farmers Insurance Date October 23, 2015

2 PAM s PICKS HOT 10 INSURANCE TOPICS A-Z 1-Autonomous Cars 6. Price Optimization 2- Big Data 7- Ride Sharing 3- Cyber-Security/Data Breach 8- TCPA 4- Drones 9- UBI 5- Employment Issues 10-Widow Penalty Bonus Topics: Affordability Auto Injury Trends

3 Introduction and Presentation Overview Overview of Insurance Landscape Basis for Selection of Top Hot Topics In-house Counsel Perspective Overlay of Regulatory Influence and Impact The future often lies in the past.

4 AUTONOMOUS CARS Automation Overview Why Important NHTSA View Levels of Vehicle Automation Level 0 No automation Level 1- Function specific automation Level 2- Combined Function Automation Level 3- Limited Self-driving Automation Level 4- Full Self Driving Automation Level off-the charts DRIVERLESS VEHICLE! Google car Vehicle Manufacturers State Activities

5 Domino's Creates Its Own Delivery Car With GM, Google Partner The pizza chain plans to send 100 vehicles to 25 U.S. markets Domino s Pizza Inc., facing stiff competition and more demanding customers, is working with General Motors Co. to build its own fleet of custom delivery cars. The company is rolling out 100 test vehicles emblazoned with the Domino s logo and red-and-blue colors, as well as an oven in the rear that can keep pizzas warm during transit. Domino s plans to bring the cars to 25 markets, including Boston, Dallas, Detroit, Houston, New Orleans and Seattle, according to a statement Wednesday. Bloomberg Business

6 Driverless Cars People will be able to buy a self-driving car no earlier than 2020, Nissan executives have said, but Google's self driving car has already logged approximately 500,000 miles on California roads, so could the tech giant beat that deadline? Self-driving cars are definitely coming to the roads of the future, many lawmakers and auto market analysts agreed on Tuesday during a hearing of the House Transportation Subcommittee on Highways and Transit, but it is unclear when they will be headed to a neighborhood dealership.

7 Driverless Cars Self-driving vehicles could help make highways and fuel use more efficient and prevent accidents caused by intoxicated or fatigued drivers, said Rep. Tom Petri, R-W.I., chairman of the subcommittee. Approximately 33,561 people died in motor vehicle crashes in 2012, according to the National Highway Traffic Safety Administration. Nov 22, 2013

8 NHTSA RECOMMENDATIONS Driver Understands How to Operate On-road Testing of Selfdriving Vehicles Minimizes Risks to Other Road Users Limit Testing Operations to Suitable Conditions Submit reports and Monitor Performance Ensure Safe Transition from Self-Driving to Driver Control Mode Ensure Self-Driving Vehicles can Detect Malfunctions Ensure No Impact to Federally Required Safety Systems Record Data and Information for use in Crash of Loss of Control Restrict Approval to Testing Purposes only until human performance issues are adequately addressed

9 Additional Considerations Autonomous Cars Revised transit systems and federal funding of rail systems Enhanced vehicle safety features Fewer Fatalities/ Lower frequency/severity Pricing Driver Behavior/Piloted Driving/Less Human Interface Product Liability/Recalls New theories of negligence versus true No-fault Claims training Impact on Auto insurance provisions/repair costs Ethical and Legal Considerations of Operating Protocols

10 Big Data AIA Goal Oppose efforts to expand the definition of personally identifiable information, and eliminate or oppose state regulation that deviates from Federal Privacy standards to promote consistency across states. Ethical Considerations

11 Big Data What s the Big Deal Privacy Considerations versus Increased use of Shared Social Sites Identification and Management of Risks Transparency and Fairness versus Distrust and Fear Impact on Litigation and Discovery Costs Data Privacy and Data Protection Data Retention Increased ability for interface and analytics

12 Big Data The Internet of Things The Internet of Things is a term used to describe the ability of devices to communicate with each other using embedded sensors that are linked through wired and wireless networks. These devices could include your thermostat, your car, or a pill you swallow so the doctor can monitor the health of your digestive tract. These connected devices use the Internet to transmit, compile, and analyze data. (Big Data, Seizing Opportunities, Preserving Values. Executive Office of the President, May 2014, p.2)

13 Big Data Big Data Amongst the most cited definitions of big data is that by Gartner (2001), which is routed in magnitude of data and encompasses three Vs : Volume, Velocity, Variety. The definition stresses increasing size of data, the rate with which it is produced, and the range of formats employed. The definition has since been expanded to include a fourth V for Veracity that captures questions of trust and reliability of data. However, recent evolution moves away from seeing big data purely from perspective of their size toward complexity as a primary factor. According to NIST (National Institute of Standards and Things), big data is data that exceeds the capacity and capability of current methods and systems. Source: Zurich Insurance Group

14 BIG DATA Ethical, Legal and Regulatory Considerations Challenge: How to solve the dilemma and find the right balance of: -Societal benefits -Social and economic benefits of insurance -Interest of insurers to run business profitably Regulatory approach to regulating Big data: -Privacy regulations -Insurance specific regulations -Consumer protection laws

15 Big Data Legal Recommendations and Best Practices Proposed Framework for insurance professionals and Legal and Compliance: Implement big data conscientiously Have clear standards Mitigate unexpected consequences Check privacy policies regularly and revise as needed Make sure policy is clear, concise and conspicuous Make sure it is accurate Full Disclosure pays!

16 Big Data Questions to consider What data practices raise the key risks? How could data practices impact customers and employees? Are customers and employees entitled to know how data are used? Are customers and employees entitled to access data? Are there any personal characteristics that are off limits? What do we want to be able to say about our data practices?

17 CYBER-SECURITY AIA Goal for Promote property-casualty interests through participation in Federal cybersecurity forums and federal /state cyber initiatives. NAIC CYBERSECURITY TASK FORCE CYBERSECURITY BILL OF RIGHTS 12 PRINCIPLES FOR EFFECTIVE CYBERSECURITY INSURANCE REGULATORY GUIDANCE

18 NAIC 12 PRINCIPLES FOR CYBERSECURITY PII should be protected Alert systems to notify of breach Data should be safeguarded Regulators have a duty to protect information Regulations should be flexible Use of risk based exams and MCE s Plan for incident response Enforce third party controls Enterprise risk management Board of director accountability Awareness of Emerging trends Periodic training and assessments

19 Cyber Security Legal and Regulatory Perspectives Third circuit case affirming FTC Authority to Regulate Cybersecurity- Federal Trade Commission v. Wyndham Worldwide, No (3 rd Circuit, Aug. 24, 2015) -FTC allegations -FTC unfairness authority -Fair Notice -FTC Guidance on PII Cybersecurity Insurance versus CGL NetDiligence case CA Data Breach amendments

20 DRONES Drones Defined Commercial versus Private use Regulated through Federal Aviation Administration (FAA) Exemptions Enforcement Standards Legal and Regulatory Concerns State regulation 45 states/156 bills FL, MN, NV, ND, OR and VA have laws regulating drones CA SB 142 Restrictive Vetoed September 9, 2015

21 EMPLOYMENT MATTERS Discrimination, Gender and Equal Pay Issues Record Retention EEOC Requirements Unpaid Interns NLRB Social Media in the Workplace Criminal background checks

22 PRICE OPTIMIZATION What is it? What is the regulatory response? What is the industry response? What you need to do? Sample Potential State Bulletin Sample Potential Questions for Regulators To Ask Regarding Use of Models in Rate Filings

23 Price Optimization Casualty Actuarial and Statistical Task Force White Paper I. Background II. III. IV. Benefits and Drawbacks Regulatory Responses Recommendations Industry focus on narrowing definition. AIA Statement State activity: MD; OH; CA; NY; FL; VT; WA Also: VA; IN; PA; ME; DC; RI

24 PRICE OPTIMIZATION Delaware Insurance Commissioner Karen Weldin Stewart issued an official bulletin to insurance companies to disclose any use of so-called price optimization and highlighted the state s prohibition on any use of pricing techniques unrelated to risk, such as price elasticity of demand. Commissioner Weldin Stewart stated clearly that price optimization is illegal. The bulletin states: To the extent that price optimization involves gathering and analyzing data related to numerous characteristics specific to a particular policyholder and unrelated to risk of loss or expense, insurers may not use price optimization to rate policies in Delaware. Delaware is the 13 th jurisdiction to notify insurers that price optimization violates state insurance statutes that require cost-based pricing and prohibit unfair discrimination in setting insurance premiums. Montana, Rhode Island, Washington, D.C., Maine, Indiana, Washington, Florida, Maryland, Ohio, California, Vermont and Pennsylvania have previously issued notices to insurers with the same message as the Delaware bulletin: utilizing non-risk related consumer characteristics to set insurance prices is illegal.

25 Ride Sharing UBER LYFT SIDE CAR RELAY RIDES ZIP Car Personal Vehicle Sharing

26 Ride Sharing Risk shifting Commercial v. Personal Livery exclusions inadequate Coverage for gap period and trolling risks Litigation Regulatory Responses

27 CA Position Statement and Findings Redefine when TNC services commence Require $1mm primary commercial liability for the 3 exposure periods Require additional coverage by TNC s to protect drivers and passengers Require notice to personal auto insurers Require TNC s to share app data Require TNC s to provide Evidence of Insurance

28 Ride Sharing Review policy provisions for livery Make revisions to cover gaps Follow state legislative action and proposed bills Engage trades and lobby, as needed Train claims Determine how to underwrite exposures Determine disclosure requirements Consider opportunities for new product offerings

29 TELEPHONE CONSUMER PROTECTION ACT DEFINED ROBO CALLS PRIOR EXPRESS WRITTEN CONSENT REQUIRED ATDS DO NOT CALL LISTS USE OF THIRD PARTIES IN SOLICITATION RISK MITIGATION

30 TCPA Regulatory and Litigation Climate FCC Ruling 2012 (effective October 16, 2013) FCC Ruling July 10, 2015 Expands what constitutes ATDS Addressed reassigned numbers Rejected intended recipient argument One call exemption if number reassigned Addressed revocation of consent Call to action texts Exemptions Bank and Healthcare related

31 Litigation and Settlements 9,720 cases filed in federal courts in 2014 $500 per violation Up to $1500 for willful, repeat or knowing violations No cap for aggregated damages Limited defenses apply High profile settlements encourage plaintiff action EXAMPLES: HSBC; AT & T Mobility; Capital One

32 Recommendations and Best Practices TCPA Risk Mitigation View from In-house: Clear processes to obtain consent Ability to reproduce/confirm written consent was obtained Identify potential areas of exposure and mitigate Strengthen vendor obligations contractually Increase indemnification and insurance coverage requirement Training

33 USAGE BASED INSURANCE DEFINED The technology of sending, receiving and storing information and data via telecommunications devices Monitoring driving behavior via an onboard diagnostic telematics device Travel distance Behavior Speed and braking Type of roads traveled Time of day

34 USAGE BASED INSURANCE BACKGROUND Identified in 1930 s Paul Dorweiler President Casualty Actuarial Society

35 USAGE BASED INSURANCE Benefits More accurate pricing Behaviors modification Remote car access for lock outs

36 USAGE BASED INSURANCE Legal and regulatory concerns: Consumer data privacy issues Accuracy Verification of driver that caused the negative information Process to challenge Ownership of data Portability

37 USAGE BASED INSURANCE What has been the regulatory response to date? NV law prior approval requires all UBI models to be filed with the state and must receive prior approval CA The regulatory scheme for auto insurance requires strict compliance with that states mandatory rating factors and Optional rating factors are specifically listed in the regulations (Title 10, Chapter 5, and Subchapter 4.7 Section That section also specifies that the use of a technological devise is strictly limited for the purpose of collecting vehicle mileage information

38 USAGE BASED INSURANCE What has been the regulatory response to date? DE bill limiting telematics and prohibits the use of telematics devices for anything other than premium discounts. That regulation (HB 56w/SA3 passed in 2014). Requires the insurer to disclose to the insured others who may have or gain access to their data Prohibits insurers from releasing such data to others.

39 WIDOW PENALTY Recent headlines: New Research Shows That Most Major Auto Insurers Vary Prices Considerably Depending on Marital Status (Published by Consumer Federation of America) Higher Rates for Widows Than for Married Women, and Other Marital Price Differences, Raise Questions about the Fairness of Auto Insurer Pricing Regulatory Response: -PA and DE -Rate reviews

40 Additional Trends Impact of Trends: Affordability Auto Injury

41 Affordability Traditional issues of Accessibility and Affordability still dominate the insurance national press. While this is an old issue, it is reemerging as concerns for affordable insurance are driven by a tightening economy and socio-economic gaps/ Issue: Driven

42 Affordability by Consumer Groups Unaffordable auto insurance leaves many Americans in the predicament of either not driving, which dramatically restricts their economic opportunities, or driving without insurance, which not only is illegal but puts them and other drivers at risk, the groups wrote. GOAL: The protection of the right to all to have access to affordable insurance Resource: Letter to FIO (Federal Insurance Office)

43 AFFORDABILITY Federal Insurance Office (FIO) notice entitled Monitoring Availability and Affordability of Auto Insurance published in the Federal Register on July 2, Consumer Federation of America (CFA) Press Release

44 AFFORDABILITY Groups Say Basic Auto Insurance Should Not Cost More Than Two Percent of Income for Low- and Moderate-Income Americans The undersigned consumer, community and civil rights organizations commend the U.S. Treasury Department s Federal Insurance Office (FIO) for recognizing the importance of auto insurance availability and affordability to lower income consumers and underserved communities because of the necessity of automobile ownership, state insurance mandates, high rates of uninsured motorists, and typical premium levels paid by lower income drivers. Any reasonable and meaningful definition of affordability must be based on premiums charged to lower income drivers.

45 AUTO INJURY CLAIM TRENDS INSURANCE RESEARCH COUNCIL STUDY AND FINDINGS 32,719 traffic crash fatalities in 2013 Second lowest number recorded since mid s Non-fatalities also declined

46 AUTO INJURY CLAIM TRENDS REASONS: Impaired driving campaigns Increased use of seat belts Improved road and traffic control designs Increase vehicle safety CRASH AVOIDANCE TECHNOLOGY RIGOROUS VEHICLE TESTING EFFECTIVE VEHICLE SAFETY STANDARDS

47 AUTO INJURY CLAIM TRENDS DECREASED AUTO INJURY CLAIMS BUT: RISING CLAIMS COSTS INCREASED USE OF MEDICAL SERVICES INFLATION HIGHER VEHICLE REPAIR COSTS

48 Role of In-house Counsel Legal Perspectives Issue Identification Issue Awareness See the Big Picture Identify Risks Identify opportunities Stay open minded Observe precedent Analyze and apply learnings Improve internal and external networks The role of the in-house counsel is to identify emerging trends to determine where and how those intersect current or proposed business practices and proposed thoughtful, compliant and effective solutions.

49 GETTING IT RIGHT Consequences if we don t: Public concerns and bad business practices may lead to disruptive or reactive legislation Regulation may take the place of business decisions Loss of customer and employee trust Loss of revenue Talent drain Take personal accountability and responsibility for learning!

50 Resources Consumer Federation of America Trends in Auto Injury Claims - Insurance Research Council, Sept 2015 A Unified Ethical Frame for Big Data Analysis by The Information Accountability Foundation (2014), available at IAF-Unified- Ethical-Frame-v1-08-October-2014.pdf.

51 Q & A