Laremy Tunsil’s Social Media Controversy Highlights NFL Draft Risks

shutterstock_212182807Last night was the first round of the 2016 NFL Draft and the lead story was that of Laremy Tunsil. By many scouts’ accounts he was one of the most talented prospects in the draft and was expected to be chosen in the top five or six. Instead, Tunsil tumbled all the way to number 13 after an untimely video was posted to his Twitter account depicting him smoking marijuana through a gas mask. The tweet was quickly deleted but not before creating a snowball effect that will likely cost Tunsil approximately $8 million in lost contract value, as estimated by Forbes based on the NFL’s Salary Cap and Rookie Compensation Pool (a player chosen at #6 would be expected to receive a contract of $20.4 million, while the 13th pick would receive an estimated $12.4 million).

If you watched the first round coverage last night, the term “risk management” was thrown around generously by commentators. In many cases, NFL draft prospects are investments worth many millions of dollars. But with each investment comes questions of risk versus return. The Miami Dolphins, who selected Tunsil, made a decision last night that the investment of approximately $12 million dollars mitigated the risks posed by a player who could have drug related issues that could violate NFL player conduct rules. Moving forward, the Dolphins will have to consider the following risks:

  • Organizational Risk: In addition to the marijuana video, Tunsil admitted to what amounts to violating NCAA rules while in college, which will certainly result in disciplinary actions against his alma mater. The Dolphins still have to sign Laremy Tunsil and now have to determine if they can expect a positive return from a player who demonstrates the potential to weaken an entire institution.
  • Reputational risk: Will there be a backlash from the fan base for drafting someone who clearly demonstrates serious lapses in judgement? Remember, these players are not just investments in terms of their performance, but in the revenue and public relations image they create for their respective team. As has been demonstrated in the past with other NFL teams, reputational risk is not just an external factor but an internal one at that that can affect team’s performance on the field.
  • Social media risk: Laremy Tunsil’s agent claims that his client’s social media accounts were hacked. Regardless of whether or not that is true, the damage has been done. But what prevents any of his accounts from being hacked in the future? Will this inspire other potential black hats to hack athlete’s social media accounts? Can the Dolphins impose a social media blackout on its entire franchise? The Dolphins will need to consider what social media risks Laremy Tunsil may pose to the franchise’s image moving forward.

Overall, if Tunsil is as talented as he is expected to be, then the risk of selecting him will likely be worth the reward. Right now, the Miami Dolphins have made a decision that their potential investment of $12 million dollars will benefit the team in the future. Let’s hope for their sake that they have a risk management program in place that will give as much consideration to the risks listed above as they presumably give to winning a Super Bowl title.

Japan Earthquake Causes Parts Shortage, Closing 4 GM Plants

The earthquake in Japan earlier this month has impacted the supply chain of General Motors, causing four plants in North America to close temporarily because of a shortage of parts from Japan, the company reported.

GM said in a statement that its manufacturing operations are expected to be down for two weeks beginning April 25 in Spring Hill, Tennessee; Lordstown, Ohio; Fairfax, Kansas andGM logo the Oshawa Flex Assembly in Canada.

The temporary adjustment is not expected to have “any material impact on GM’s full-year production plans in North America,” GM said. In addition, the company “does not expect a material impact to its second quarter or full-year financial results for GM North America.”

Japan’s Kyushu Island was rocked by a 7.0 temblor on April 16, killing 58 people and injuring about 900, according to AIR Worldwide. The quake was the strongest to strike Japan since 2011, when a massive 9.0-magnitude offshore earthquake unleashed a tsunami that killed 18,000 people in the country’s northeast and triggered meltdowns at a nuclear power plant in Fukushima, the New York Times reported.

AIR said the earthquake is expected to result in insured losses between $1.7 billion and $2.9 billion. Those losses only reflect insured physical damage to onshore property (residential, commercial/industrial, mutual), both structures and their contents, from ground shaking, fire-following and liquefaction, AIR said.

The Japan Fire and Disaster Management Agency (FDMA) estimates that more than 3,900 residences and 120 non-residential buildings were damaged or destroyed, a number of mudslides resulted, and 14 fires were attributed to the temblors.

On the same day, April 16, a 7.8 earthquake struck the central coast of Ecuador, killing 570 people and injuring more than 4,700. AIR estimates losses from that quake between $325 million and $850 million. More than 1,100 buildings are reported to have been destroyed and more than 800 damaged.

Even though they happened just hours apart, the two quakes are not related. The Times reported:

Are the two somehow related?

No. The two quakes occurred about 9,000 miles apart. That’s far too distant for there to be any connection between them.

Large earthquakes can, and usually do, lead to more quakes — but only in the same region, along or near the same fault. These are called aftershocks. Sometimes a large quake can be linked to a smaller quake that occurred earlier, called a foreshock. In the case of the Japanese quake, seismologists believe that several magnitude-6 quakes in the same region on the previous day were foreshocks to the Saturday event.

Travelers Must Cover Inadvertent Data Disclosures, Court Rules

A recent Fourth Circuit case affirmed a Virginia district court ruling that insurer Travelers Indemnity Company of America had a duty to defend a class action brought against its insured, Portal Healthcare Solutions, LLC, under a cyber liability insurance policy providing coverage for the electronic publication of certain materials. Portal Healthcare provided “electronic storage and maintenance of certain medical records” as a service to its healthcare provider clients. The class action suit alleged that Portal Healthcare negligently failed to provide services when a wrong security setting on a web access portal was selected, allowing internet search engines to scoop up not only the login page as a search result, but also the underlying sub-pages containing medical records.

Travelers argued that it had neither a duty to defend nor indemnify under the 2012 and 2013 policies acquired by Portal Healthcare. The 2012 policy included a “Web Xtend Liability Endorsement” applicable to coverage for “Personal Injury, Advertising Injury and Web Site Injury Liability.” The 2013 Policy contained a Commercial General Liability Coverage Form applicable to “Personal and Advertising Injury Liability.” The applicable definitions included:

  • “Advertising injury” means injury, arising out of one or more of the following offenses: … electronic publication of material that … gives unreasonable publicity to a person’s private life
  • “Personal injury” means injury, other than “bodily injury,” arising out of one or more of the following offenses: … electronic publication of material that … gives unreasonable publicity to a person’s private life
  • “Web site injury” means injury, other than “personal injury” or “advertising injury” arising out of one or more of the following offenses: … electronic publication of material that … gives unreasonable publicity to a person’s private life …”

Travelers asserted that it owed a duty to defend Portal Healthcare only if the underlying class action complaint alleged “(1) injury arising out of the offense of “electronic publication of material that … gives unreasonable publicity to a person’s private life” (2012 Policy) or (2) injury caused by the offense of “electronic publication of material that … discloses information about a person’s private life” (2013 Policy).”

The Fourth Circuit, however, held that the Eastern District Court of Virginia correctly analyzed the matter under the “Eight Corners” rule, where the court must look first to the four corners of the contract (the insurance policy) and then the four corners of the complaint. The policy provided coverage for “publication” of electronic materials which either gave “unreasonable publicity” to or “disclosed” information about an individual’s private life.

Travelers argued that there could not be “publication” when the insured’s business was the protection of information and there was no evidence that a third party actually viewed the information. The District Court determined in the first instance that “publication” does not refer to intent (whether intentionally or unintentionally disclosed) so that argument was rejected. As to the second element, the court noted that publication occurs when placed “before the public,” without reference to whether the public actually reads the information.

Under the second requirement for coverage, Travelers maintained that “publicity” required a proactive step to “attract” interest, and “disclosure” requires a third party to actually view. The District Court held that publicity was unreasonable due to the nature of the sensitive information contained in the medical records and there was no requirement that the insured take overt action to attract attention to the information. As to the “disclosure” argument, the District Court held that disclosure occurred when the possibility of viewing by a third party happened, not when or if a third party actually viewed the information.

The District Court also addressed the fact that there was no express exclusion of the actual security failure involved and at a minimum the insurance carrier would have to defend (although it could still later argue it had no duty to indemnify) based on the law that such an ambiguity is decided in favor of the insured.

This makes it clear that it is critical to pay attention to the type of coverage purchased and to the fine print. It may also be helpful to have an insurance agent review the types of coverage you have, to look for gaps based on your business and possible risks, since each policy type includes those risks which are intentionally covered and others which are expressly excluded. Although the types of policies continue to expand to cover new technologies and new risks, depending on the carrier and the policy’s exclusion language, the coverage may not be what you think it is.

Houston Faces ‘Largest Flooding Event Since Tropical Storm Allison’

Historic flooding has left the Houston metropolitan area inundated once again this week, killing at least seven people, flooding 1,000 homes and causing more than $5 billion in estimated damages in Harris County alone. Gov. Greg Abbott declared a state of disaster for nine counties in and around the Houston area. The widespread nature of the disaster prompted the city of Houston to call this the largest flood event since Tropical Storm Allison, which devastated southeast Texas in 2001, causing $9 billion in damage and $1.1 billion in insured losses.

According to Harris County Judge Ed Emmett, about 240 billion gallons of rain fell on the Houston area this week. That’s the equivalent of 363,400 Olympic-size swimming pools, CNN reported. After 10 inches of rainfall fell in six hours Sunday night into Monday, powerful, slow-moving thunderstorms had paralyzed the region Monday, but storms continued through Wednesday.

Having some of the hardest rainfall overnight helped a bit to mitigate the dangers this week. While this made it difficult to predict, it allowed people to better make choices about going out, as opposed to last year’s floods around Memorial Day, Emmett told the Houston Chronicle. Nevertheless, emergency crews made more than 1,200 high-water rescues, many residents had to evacuate to shelters, and for those who were able to shelter in place, 123,000 homes had no power at the height of the flooding. Officials have also expressed concern about two local dams that have been rated “extremely high risk and are at about 80% capacity, but they are not in immediate danger of failing.

As I wrote in Risk Management last year, the city’s rapid urbanization and approach to land development have made it extremely vulnerable to flooding perils because there is little land surface that can absorb water in foul weather. Rivers, bayous and other receptacles for runoff are easily overwhelmed and take a considerable amount of time to return to normal levels, making the heavy, concentrated, sustained rainfall seen this week even more dangerous in such an urbanized setting. Last May, record rainfall and severe thunderstorms caused tremendous damage across Texas and Oklahoma, killing 32 people and flooding more than 5,000 homes in the metro regions of Houston, Austin and Dallas.

With this latest storm, Houston again offers a powerful reminder about the natural catastrophe perils compounded by urbanization and the need to prepare, both in the form of routine disaster preparation and urban planning. From the August issue of Risk Management:

The city has invested hundreds of millions of dollars to battle the effects of urbanization. On Buffalo Bayou alone, for example, flood control efforts totaling half a billion dollars in the past decade have included bridge replacements, the addition of detention ponds for runoff, and creation of green spaces that serve as parks in normal weather while offering more land surface that can absorb water in foul weather.

But the investments are not enough. “Houston may be doing things to try to improve…but there’s a long history of pre-existing stuff that is still there,” Walter Peacock, an urban planning professor at Texas A&M and director of the school’s Hazard Reduction and Recovery Center, told Time. “Think about every time you put in a road or a mall and you add concrete—you’ve lost the ability of rain to get into the soil and you’ve lost that permeability. It’s now impermeable, and therefore you get more runoff.”