MH 17 Wreckage Denis Kornilov / Shutterstock.com

First, Malaysia Airlines flight MH370 mysteriously disappeared in March, dominating the news cycle and baffling aviation experts, government officials and civilian observers alike. This month, three tragedies in short succession have kept the industry in the hot seat. Malaysia Airlines made headlines once again on July 17 after Flight MH 17, a Boeing 777 flying from Amsterdam to Kuala Lumpur, was shot down over Ukraine. It is now the seventh most deadly aviation crash in history. Exactly who fired on the plane remains unclear, as do many questions of insurance, as war has not officially been declared, despite months of fighting in the region. An act of war would exclude losses from insurance coverage, but remaining uncertainty does as well. Plus, “Unless Russia has declared war on Malaysia, that would knock out the exclusion,” RIMS Vice President Rick Roberts told Mashable. But for it to fall under under terrorism coverage, “someone has to certify that the act that occurred wasn’t a mistake—that it was a malicious act.” The already struggling company may not be able to survive this second disaster, or the reputational devastation.

Ten Deadliest Plane Crashes

Tragedy has further plagued the industry this month. On July 23, a TransAsia flight from Taiwan crashed, killing 48. The next day, an Air Algérie flight from Burkina Faso to Algeria disappeared less than an hour after takeoff in the air space over Mali. Approximately 24 hours later, peasants found the plane’s wreckage near Gao, Mali, and French soldiers dispatched to the scene were able to recover a black box, but no survivors.

Despite the string of disasters, there is no evidence that air travel is in any way more dangerous on the whole. In fact, it is safer than ever before. Nearly three billion people fly safely each year on more than 37 million flights, the International Air Transport Association (IATA) reports, and the global plane accident rate fell to the lowest level in aviation history in 2012. Over the past 10 years, both the crash and fatality rates have trended downward, according to statistics from the Bureau of Aircraft Accidents Archives. But, little more than halfway into 2014, the number of people killed in plane crashes is more than double the total for 2013 (991 and 459, respectively).

Based on BAAA data:

Crashes per year

Deaths per year

Looking back even further, this chart from the Wall Street Journal leaves little doubt that the aviation industry has grown drastically safer:

Deadly flights

While 2014 has been more fatal thus far, the overall number of crashes continues to decrease. There have been 70 commercial-plane crashes globally so far, versus 81 for the comparable period a year earlier, according to Aviation Safety Network, part of the Flight Safety Foundation. Further, the four tragedies do not have any common root causes for their failures.

 

Insurance Changes on the Horizon

International carriers are feeling most of the strain, and that is likely to have serious implications for insurance premiums. “Given the accumulation of losses, including the loss of Asiana Airlines’ Boeing 777 in San Francisco last year, an explosion causing damage to 20 aircraft in Tripoli recently, and this week’s losses in Africa and Taiwan, these will, altogether, put pressure on the global insurance market,” said Robert Hartwig, president of the Insurance Information Institute. “I expect most of the impact to be focused on international carriers, particularly those operating in or traversing parts of the world that I would characterize as ‘hotspots,’ currently experiencing military or political instability. That would certainly include Ukraine, parts of the Middle East, and parts of Africa.”

While the recent spate of tragedies may leave many travelers wary of getting on a plane, American airlines have less to worry about regarding premiums than their foreign counterparts. There have been are no notable losses this year among domestic carriers, or U.S.-based airlines that fly internationally. As Hartwig pointed out, however, “With a few exceptions, they do not tend to traverse many of those hotspots to begin with.”

In Africa and other developing regions, “you identify accidents in many places that would have happened 30 or 40 years ago in the West, because oversight is lagging,” Dominique Fouda, spokesman for the European Aviation Safety Agency, told the Wall Street Journal. “You also see different accidents linked to local conditions.”

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From oil spills to nuclear waste to a floating garbage patch containing 3.5 million tons of plastic, man-made disasters are some of the most expensive, and, in some cases, the most difficult to clean up. Here is a list of the costliest, and the strangest, man-made disasters on the planet.

Man-Made Disasters
Source: Emergency-Management-Degree.org

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On July 2, 2014, the U.S. Court of Appeal for the Seventh Circuit entered its opinion in IKO Roofing Shingle Products Liability Litigation, No. 14-1532 (7th Cir. July 2, 2014), and vacated a district court’s decision denying class certification.

A Seventh Circuit panel of Judges Wood, Easterbrook, and Kanne found that the district court erred when it interpreted the Supreme Court’s decisions in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), and Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), as requiring plaintiff to demonstrate “commonality of damages.” Instead, the Seventh Circuit held that these SCOTUS decisions merely require plaintiffs to match their theory of loss to their theory of liability—a fact that is “equally true in a suit with just one plaintiff.”

We have previously blogged about the Seventh Circuit’s limiting interpretation of Comcast (read more here). The Seventh Circuit went further in IKO and essentially found the fact that Comcast involved a Rule 23 class action beside the point.

Although the IKO decision arose outside the employment context, we anticipate that plaintiffs’ counsel will argue that it spells bad news for employers faced with class claims, particularly in the Seventh Circuit, and that it further limits defendants’ ability to use disparate damages as grounds to oppose class certification.

Factual Background

Purchasers of organic asphalt roofing shingles brought suit against IKO Manufacturing contending that it falsely told customers that the shingles met an industry standard known as ASTM D225. Plaintiffs asked the district court to certify a class that would cover IKO’s sales in eight states since 1979. The district court denied the motion.

The district court noted that Comcast and Wal-Mart require proof that plaintiffs, “will experience a common damage” and that their claimed damages “are not disparate.” The district court found that the inevitable differences in consumers’ experiences with IKO’s tiles prevented class certification. Subsequently, Plaintiffs sought interlocutory review under Rule 23(f), which the Seventh Circuit granted.

The Seventh Circuit’s Opinion

The Seventh Circuit disagreed with the district court’s reading of Wal-Mart and Comcast.  It noted that, if the district court’s reading is correct, class actions about consumer products are “impossible.”

With respect to Wal-Mart, the Seventh Circuit explained that the case “has nothing to do with commonality of damages.” Instead, at least according to the Seventh Circuit, Wal-Mart deals with the need for “conduct” common to members of the class. In that case, damages differed but only because the underlying conduct differed. The Seventh Circuit reasoned that “[i]n a suit alleging a defect common to all instances of a consumer product, however, the conduct does not differ.”

With respect to Comcast, the Seventh Circuit recognized that the case “does discuss the role of injury under Rule 23(b)(3), though not in the way the district court thought.” The Seventh Circuit explained that, there, plaintiffs specified four theories of liability, and their damages expert estimated harm resulting from all four. Because the district judge certified a class limited to one of the four theories, plaintiffs lacked a theory of loss that matched the theory of liability.

The Seventh Circuit held that, in IKO by contrast, plaintiffs had two “theories of damages that match[ed] their theory of liability” and, therefore, plaintiffs did not run afoul of Comcast. The Seventh Circuit noted that, although a buyer-specific remedial approach (purchasers whose tiles actually failed are entitled to recover damages if non-conformity to the D225 standard caused the failure) “would require confining any class certification to questions of liability,” it “is not hard to frame liability issues suited to class-wide resolution.”

Implications for Employers

The Seventh Circuit’s ruling is plaintiff-friendly and cuts back on defenses that other jurisdictions have utilized to cabin class actions. In Comcast, the Supreme Court noted that, to meet the predominance requirement, plaintiffs must show that damages resulting from the alleged injury are “measureable ‘on a class-wide basis’ through use of a ‘common methodology.’” The Supreme Court went on to hold that plaintiffs’ model fell short of establishing that damages were “capable of measurement on a class-wide basis” and that, without another methodology, plaintiffs could not show Rule 23(b)(3) predominance:, “[q]uestions of individual damage calculations will inevitably overwhelm questions common to the class.”

Despite the Supreme Court’s language, in IKO, the Seventh Circuit specifically held that a plaintiff need not demonstrate “commonality of damages” to obtain class certification under Rule 23(b)(3). It remains to be seen whether the Seventh Circuit’s interpretation is faithful to the Supreme Court’s intent, and whether this interpretation will be applied to workplace class actions.

This blog previously appeared on the Seyfarth Shaw website.

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The final attribute of the RIMS Risk Maturity Model should be of great interest to risk managers responsible for establishing an enterprise risk management (ERM) program. Without some level of business resilience and sustainability built into your program, the iterative, cultural changes that are created by the ERM process will wane and your exposure to loss events will increase.

Understanding Consequences

Traditionally, business continuity plans have focused on technology platforms, but resiliency means much more than ensuring that your information technology infrastructure is prepared for disaster recovery. Consider that the IT infrastructure that is the focus of your business continuity plans is likely to play a critical role in the execution of your mitigation activities (for example, a server that supports access rights and security). A lack of capability to explicitly identify relationships between these entities can result in huge increases in short term risk exposure at the worst possible time, as rapidly deteriorating business environments require even stronger change management ability.

Analysis Based Planning

The key is to determine the downstream dependencies and effects that various external events may have on your operations, and to re-evaluate and assess the potential impact of these events on a frequent basis. Typical business impact analysis (BIA) identifies critical functions, but does not account for a business area’s inherent risk exposures or confidence in mitigation plans.

An ERM approach prioritizes not just business functions, but also mitigation activity and emerging risks that require increased attention. These factors should be weighed against each other and reevaluated as part of the business continuity process. In fact, the concept of “Proactivity,” or the third dimension of the RMM assessment, is specifically geared to evaluate an organization’s ability to prepare for and manage surprises before they materialize.

Looking to integrate Business Continuity with Risk Management? Download our guide on Integrating Governance Areas with ERM.

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