Should You Respond to a Reservation of Rights Letter?

An organization buys insurance to transfer certain types of risks (depending on the policies purchased). If a covered event occurs that results in a loss, you submit a claim and get paid. Simple, right? That’s how it would seem, but many experienced risk managers know it doesn’t always go that smoothly.

A recent RIMS Executive Report discusses one of the most common instances when things don’t go according to plan, and the insurer sends along some unpleasant surprises. In “A Risk Manager’s Guide to Reservation of Rights,” we learn how an insurer protest against paying a claim is commonly initiated and communicated: the dreaded reservation of rights letter.

In case you’ve never had the pleasure of receiving one, a reservation of rights letter is “a notice that the insurer has reserved its rights to either limit or deny coverage for the claim, based on the terms and conditions of the policy or information uncovered in an investigation of the claim itself.” In other words, these legal notices can become hurdles for an organization trying to realize the value of the insurance it has purchased.

Many risk managers do nothing when they receive this letter—they assume that the insurer will act in good faith and everything will work out. The authors of the RIMS Executive Report, however, strongly encourage a more active response. At the very least, the risk manager should compare the wording of the letter to the insurance policy language in question, as well as draft a response to the letter. The authors state: “Generally, there is no requirement that a policyholder respond to an insurer’s reservation of rights letter, disagreeing with the reservation or the bases thereof. However, it is highly recommended that the policyholder do so.”

A response letter might look something like this:
In some cases, a well thought-out response can save an organization a large amount of money. A good example is the common insurer-proposed reservation to recover defense costs spent on defending a policyholder if the insurer determines at a later date that it did not, in fact, have a responsibility to defend. In order to reject this reservation and the big legal bills that could come with it down the road, many jurisdictions in the United States require that the insured respond to the reservation of rights letter and specifically disagree with this detail.

According to the authors: “Receipt of a reservation of rights notice should prompt a review by risk managers…leading to an informed decision and deliberate action: whether to accept the insurer’s interpretation of the coverage and defense obligations, or respond with a reservation of its own rights. If not, unexpected and unintended consequences may result.”

The report also includes more in-depth information on obligatory communications, the use of tolling agreements and conflicts of interest that arise in these situations. In a reservation of rights situation, there can be some tricky territory to navigate. For example, insureds are almost always contractually obligated to cooperate with the insurer’s investigation and defense of claims. Failure to communicate or cooperate with these efforts can be a breach of contract and result in loss of coverage. It is important for the insured (i.e., the risk manager) to “understand its obligations in the claims management and settlement process, and the continuing obliga­tions when a reservation of rights notification is issued.”

The balancing act is that “Insureds need to continue cooperating…regardless of any coverage disputes, to preserve the continuity of claim management as well as meet the policy obligation.”

As the coordinator between functional areas and the in-house risk expert, risk professionals have an important role in all of these stages.

Record Snowpack Brings Mixed Blessings to California

This year’s Sierra Nevada snowpack, one of the largest on record, has brought relief to California, which is still reeling from a five-year drought followed by record flooding. The snowpack is twice its average size, with some areas as deep as 80 feet, according to NASA. But with some rivers and dams still at higher than average levels, the fear is that warm temperatures or heavy rainfall will cause the snows to melt faster and bring more flooding.

Colorado and other mountain states, which also experienced heavy snowfall this winter are also concerned with runoff issues. Canada has faced severe runoff problems, after a heat wave earlier this spring resulted in major flooding in Quebec and British Columbia, the Wall Street Journal reported.

“The real wild card is if we get hit with a big rain event,” Frank Gehrke, chief snow surveyor for the California Department of Water Resources, told the Wall Street Journal as he monitored a rushing stream in late May. “That could throw the whole system into tilt.”

The Los Angeles Times reported last month that the rapid snowmelt has kept public agencies busy managing water levels across the state’s network of reservoirs. Water district managers must conduct daily conference calls to coordinate releases of water in order to monitor the amounts released into California’s rivers, creeks, bypasses and canals. This coordination is critical, as reservoir releases impact water levels downstream for days. Since one reservoir’s release may meet with another, managers must determine how much water the rivers and levees can support before overflowing.

A number of dams levees and weirs in the state are at least 60 years old, and in some areas more than 100 years old, according to a state Legislative Analyst’s Office report. It noted that flood-management responsibilities in California are spread across more than 1,300 agencies managing an infrastructure of more than 20,000 miles of levees and channels and more than 1,500 dams and reservoirs.

One reservoir in Los Angeles, the Silver Lake Reservoir, is benefiting from the snowpack and ample water supply. No longer used to store drinking water, the reservoir was drained in 2015. It sat empty and was seen as an eyesore, until recently when it was able to be refilled ahead of schedule.

According to the L.A. Times, the Silver Lake Neighborhood Council expressed its pleasure that the reservoir was refilled. The council’s co-chair, Anne-Marie Johnson, a second-generation Silver Lake resident, said she is “more than excited” that the landmark will no longer be an eyesore. “I am grateful to Mother Nature for providing us an abundance of snow. I don’t take that for granted,” she said.

Implementing a Safety Culture for Company Drivers

Organizations with a safety policy in place for drivers of company vehicles may believe they are protected from liability in case of an accident. What they may not realize, however, is their defense could hinge on documentation of steps they have taken to ensure that the policy is being followed by employees, according to the study, Creating a Safety Culture: Moving from politics to habits, by SambaSafety.

The study found that, regardless of the policy in place, “simply saying that you didn’t know about poor driving behavior will no longer cut it – not when people’s lives and companies’ well-being are at stake. With the data readily available today, the courts are sure to ask how you didn’t know.”

To implement a successful program, it is important for employees to understand that the company’s policies must be followed by employees at all levels. “If someone in senior management breaks the rules and suffers no aftereffect, what’s the motivation for others to keep things in line?” the study asks.

Additionally, safety policies are not limited to employees whose primary responsibility is driving, or to those who drive company-owned or leased vehicles. According to the study:

Employee-owned or rented vehicles that are used for work-related journeys also must be part of the equation. To decrease liability (in addition to improving safety), policies should clearly state this fact and affirm that the same safe behavior is expected of every driver in the organization – on and off the job. That behavior might include non-distracted driving, for example, or even properly maintaining a personal vehicle used for company business to ensure safety and a positive refection of the organization.

Employees need to know that their employer can be held responsible for anything that happens while employees are conducting company business. Organizations also need to see that reimbursed drivers have adequate insurance, as well as administering signed driver agreements, providing uniform driver training – and ensuring that all drivers’ behavior and records are continuously monitored.

To move into a safety culture, SambaSafety advises organizations to keep their program in line with company principles, values and brand. Also important is working with the company’s existing culture:

Employees in a high-energy, competitive environment, for example, may enjoy contests between regions vying for the safest driving records. In a top-down culture, on the other hand, employees might respond best to regular tips and reminders from respected senior leaders.

In any case, clear communication can keep drivers from feeling micromanaged or worrying about their privacy and personal information. It can also mean fewer accidents and a higher level of safety for employees.

5 Strategies to Maximize Your Risk Assessments

While risk assessments enable organizations to understand their business issues and identify uncertainties, the best assessments go further. They prioritize top risks, assign risk ownership, and most critically, integrate risk management and accountability into front line business decision-making. Simply put, “checking the boxes” just isn’t enough to achieve an organization’s real objectives.

Effective risk assessments can also give organizations a true advantage. Our sixth annual Risk in Review study–comprising viewpoints from more than 1,500 corporate officers in 80 countries—finds that companies shifting risk management leadership and collaboration to the first line of defense are measurably better equipped to succeed. We call these companies “front liners.” While a majority of companies agree that front line decision-making is ideal, somewhat surprisingly, front liners represent only 13% of survey respondents.

Front liners use effective risk assessment strategies to enable revenue and profit growth, while also creating agility to bounce back from adverse events more quickly than their peers. They also outpace the pack when it comes to using risk management tools and techniques (such as a risk rating system or scenario planning).

Based on the study results, here are five strategies you can adopt to gain a front liner advantage:

  1. Put your risk assessments to use in real-time

For true impact, organizations incorporate risk assessment findings into their business decisions. Assessments should be efficient, and actions should be implemented quickly to address immediate challenges. Annual assessments are a best practice, but our study shows front liners have a robust risk culture, conducting regular assessments. Ongoing collaboration across all three lines of defense, reinforced by continuous monitoring, enables the organization to more effectively align business strategies with risk appetite.

  1. Develop actionable guidance and insights for leadership

Effective risk assessments are relevant and actionable. Be sure to interpret risk information and recommend next steps to help management incorporate the findings into their strategic decisions. Make it easy for boards and senior management to understand the key findings by providing thorough insights. Data will mean a lot more if you identify the recommendations, target outcomes and next steps. Gaining the front liner advantage is best achieved by integrating risk guidance holistically into the organization, including planning, growth strategy and investments to M&A, staffing, disaster recovery and crisis management.

  1. Speak in lay terms

Leaders outside the risk management function may perceive risk assessments as an onerous process loaded with abstract language and a heavy focus on negative outcomes. To help leaders see value in these assessments, define the risks, drivers and consequences in familiar terms using meaningful scenarios that are specific to the organization.

  1. Balance automation with the human touch

While automation enables mass data collection, organizations benefit most when risk assessment surveys are combined with facilitated discussions. Gathering important qualitative information, facilitators can bring together multiple viewpoints and encourage productive debate. Pre-reads may also be a helpful tool to level-set on the organization’s strategic objectives and overall risk landscape.

  1. Adopt a realistic view of risk management

It can sometimes be difficult for management to accept the findings of a risk assessment, especially if they believe there is a low probability such events will occur. To support strategic, risk-based decision-making, risk scenario analyses can spur productive discussions about the organization’s overall risk landscape, while dynamic, engaging tools like a risk scenario dashboard can help to draw in even the most reluctant participants.

Following these strategies can help your risk assessments to not only be relevant, but also essential to your organization’s business strategy and growth objectives.