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.

Flood, Wind Dominant Natural Hazards in 2016

While most natural hazards occurring in the United States last year saw average or below average activity, the exceptions were flood and wind, according to the CoreLogic report Natural Hazard Risk Summary and Analysis, released today.

Severe flood events driven by substantial rainfall were the dominant natural hazards, with Louisiana and North Carolina floods being the major loss contributors. As in 2015, hurricanes and tropical storms in 2016 continued to cause inland flooding through increased and intense rainfall—even when not making landfall, according to the report.

The National Oceanic and Atmospheric Administration (NOAA) said there were 12 individual weather and climate disaster events in the U.S. with losses exceeding $1 billion in 2016.

According to the report:

  • Based on NOAA and CoreLogic analysis, the overall flood loss in 2016, driven by six, 1,000-year plus rain events, was approximately $17 billion, which is six times greater than the overall flood damage experienced in 2015.
  • The U.S. Geological Survey (USGS) recorded 943 earthquakes of magnitude 3.0 or greater in 2016, with more than 60 percent of these earthquakes located in Oklahoma.
  • The National Interagency Fire Center (NIFC) reported a total of 5,415,121 acres burned from 62,864 separate fires in 2016. While the total acres burned in 2016 fell below the 10-year average, significant losses occurred, with thousands of homes in California and Tennessee destroyed by several smaller fires that burned in populated areas.
  • Wind activity in 2016 was slightly above average, due in large part to strong winds brought by Hurricane Matthew.
  • Hail activity in 2016 was near the average, and Texas experienced the worst of this natural hazard.
  • Tornado activity in 2016 was near average compared with previous years.
  • Hurricane Matthew developed late in the year and grew to a Category 5 storm, resulting in substantial damage along the southeastern seaboard.
  • There were below-average levels of tropical cyclone activity in the western North Pacific Basin encompassing East and Southeast Asia in 2016.

However, 2016 became known as the year without a winter. Nine winter storms impacted the U.S. in 2016, the most notable being the late-January winter storm in New York.

“History has continually shown us that it is impossible to determine exactly when or where the next wildfire, flood or earthquake will strike, which is why preparedness, response and post-loss assessment are paramount,” CoreLogic said.

Authorities Examine Hotel Owner’s Request for Help Before Italian Avalanche

avalanche barriers
As the search for survivors at an Italian hotel buried during an avalanche continues, an investigation has been launched into a distress call and emails for help by the hotel’s owner. Triggered by a series of earthquakes, the avalanche claimed the lives of at least 14 people, with 15 still missing, according to reports. A staff of eight and 20 guests were reported to have been at the hotel at the time.

Bruno Di Tommaso, owner of hotel Rigopiano, a popular ski resort, reportedly sent an email asking for help from authorities in the nearby town of Pescara. “The phones are out of service. Customers are terrified by the earthquakes and have decided to stay outdoors. We tried to do everything possible to calm them but, unable to leave because of blocked roads, they are willing to spend the night in the car,” his email read. “With our shovels we were able to clean the driveway, from the gate to the SS42 (state road). Aware of the general difficulties, we ask you to intervene.”

The UK’s Telegraph reported that prosecutors in Pescara have opened an investigation into the situation, questioning why there was no attempt to evacuate the hotel. Investigators looking into possible manslaughter charges are examining Di Tommaso’s email.

According to the Telegraph:

Authorities had reportedly promised to send a snow plow to clear the road to the hotel on Wednesday afternoon, but its arrival was constantly postponed and in the end it did not turn up at all, amid reports that some snow plow in the region were out of service while others had been dispatched to other emergencies.

There have already been claims that when the alarm was first raised, by a man who survived the avalanche by luck because he was collecting medicine from his car, his pleas for help were initially rebuffed by emergency services.

The quakes struck near Amatrice, one of the towns destroyed in August by an earthquake that left almost 300 people dead and thousands homeless.