The PWG Report on the Future of Terrorism Insurance Availability and Affordability:
Something for Everyone?
November 2006
On September 29 2006, the Presidential Working
Group (PWG) issued its much anticipated report to Congress on the future availability
and affordability of terrorism insurance. Many insurance industry stakeholders
are already calling it the "something for everyone" report.
by James
Macdonald
Navigant
Consulting
Instead of providing clear guidance on the need for a continued federal terrorism
insurance backstop after the Terrorism Risk Insurance Extension Act (TRIEA)
expires next year, the report offers no definitive public policy position, either
pro or con.
If you agree with the Consumer Federation of America and others that the
federal backstop program has achieved its explicit "temporary" goals and should
be allowed to expire, the report supports your position with a surprisingly
positive description of the apparent increased willingness of insurers to underwrite
terrorism risk, and the hypothetical argument that the existence of the federal
"reinsurance subsidy" has "crowded out" the development of private sector capacity.
If you are convinced that some form of terrorism insurance backstop needs
to be continued, the report recognizes inherent limitations in new catastrophe
models to credibly estimate terrorism losses. In addition, the PWG authors predict
that it is highly unlikely, even if there is no federal backstop beyond 2007,
that any meaningful new capacity will develop for terrorism attacks using a
chemical, biological, radiological, or nuclear (CBRN) agent or device.
With the exception of the House Financial Services Committee Senior Counsel,
Robert Gordon, who reportedly called the PWG report a "farce," most stakeholders
in the TRIA debate have been more "politically correct." For example, speaking
on behalf of the Coalition to Insure Against Terrorism (CIAT), Martin DePoy
called the report "a positive contribution to the dialogue on this issue." Ignoring
the fact that the report was statutorily required by the TRIEA, DePoy states
that CIAT is "pleased that the issue" is "moving back into the public dialogue
well before the expiration" of the program. (See the full
PWG report.)
Rather than discounting the report as a "farce" or "something for everyone,"
my conclusion is that the report is a strong message from the Bush administration
of its desire to terminate the federal backstop, mainly through its glaring
omissions. Let's consider the important issues that the PWG report either omits
or summarily dismisses, and weigh the options for risk managers.
Whither "Make Available"?
The most striking omission from the report's Executive Summary is the failure
to even mention the federal law's critically important "make available" requirement.
In explaining the success of the federal program since the original law (TRIA)
was enacted in late 2002, the PWG paints a deceptive picture of an insurance
market that has apparently developed a strong appetite for underwriting terrorism
risk. Secretary Paulson's introductory letter to Congress discounts the importance
of the federal program by saying that TRIA "has helped support a continued increase
in private sector participation in the terrorism risk insurance marketplace."
The lead finding in the Executive Summary then states:
- Despite increases in risk retentions under TRIA, insurers have allocated
additional capacity to terrorism risk, prices have declined, and take-up
(purchase) rates have increased.
Remarkably, the "make available" requirement is mentioned only twice in the
report's 80 pages, i.e., once in the Background section (page 13) and a second
time in the final section's discussion on CBRN (page 76). Not mentioning this
feature of the federal law in the introductory letter to Congress or the Executive
Summaryâ€â€which regrettably is all a lot of people readâ€â€is roughly
equivalent to discussing the high American troop levels during the Vietnam War,
but not mentioning the draft. In a real sense, insurers have been "drafted"
into what had been a very small terrorism insurance market before the late 2002
enactment of the federal backstop program.
Although the federal law allows exclusions that otherwise apply to possibly
preclude a terrorism loss (notably the nuclear and pollution exclusions in most
policies), the unconditional requirement that insurers subject to the law offer
TRIA coverage is easily the single most important reason why the terrorism market
has stabilized. The PWG report also ignores recent surveys that indicate that
a large percent of insurers will leave this market or change their approach
if and when the law is allowed to expire (e.g., as reported in the June 2005
Treasury Department "Assessment" report on page 6). The attempt to downplay
the importance of the "make available" requirement is, in itself, a strong message
that should not be ignored.
Impact of the Softening Property and Casualty (P&C) Market
Although the PWG authors mention the cyclical nature of the insurance marketplace
(in their discussion of Economic Framework on page 16), the second conclusion
in the Executive Summary gives the complete change in the commercial cycle since
2002 no credit in improving availability or affordability of terrorism insurance.
Instead, the report states that the improvement is due to improved modeling,
better risk measurement and management, "greater reinsurance capacity," and
a "recovery in the financial health of property and casualty insurers" (page
2). The PWG authors frequently cite the Marsh Marketwatch 2006 report, improperly
suggesting that the survey's reported reduced property insurance terrorism rates
reflect an improved underwriting appetite for terrorism risk.
The PWG authors ignore the fact that, in the 5 years since the September
11 attacks, with the exception of natural catastrophe exposed property insurance,
the commercial insurance market has swung from a seller's to a buyer's market.
Falling insurance premiums encourage underwriters to offer insurance quotations
to accounts that, in a "hardening" market, they would likely avoid. The more
competitive commercial market also encourages underwriters to charge less (or
even charge nothing) for optional coverage extensions like terrorism insurance
that present little probable exposure to loss over the next policy year.
The failure of the PWG report to consider the role of the increasingly competitive
P&C market is a serious flaw. One can only assume it is another indirect expression
of the administration's ideological opposition to a permanent or continued federal
program.
Is Terrorism Risk "Not Inherently Uninsurable"?
In a section entitled "Two Commercial Terrorism Insurance Markets," the PWG
report wanders outside its statutorily defined objectives to make one of its
most questionable conclusions. In discussing the positive state of the domestic
terrorism insurance and reinsurance market (which is not included in the federal TRIA program),
the authors suggest that the health of this segment proves that all terrorism
is insurable:
- Although not the subject of this report,
the functioning private market for domestic terrorism risk insurance (not
including CNBR) indicates that terrorism risk is not inherently uninsurable." [Emphasis
added, page 12.]
This surprising inference ignores at least four practical considerations
that encourage insurers to underwrite domestic coverage, particularly whenever
the foreign coverage under TRIA is purchased:
- According to the modeling firms, the risk of a major domestic terrorism
act is much lower than a foreign-sponsored act.
- Although only modest compared to the charge for foreign coverage under
TRIA, some additional premium is permitted if domestic terrorism is included.
- Commercial insurance policies exclude coverage if a given loss is expected
or intended from the standpoint of the insured.
However, losses from intentional acts by third parties are often insured
(regardless of whether the third party is a criminal, a prankster, or a
terrorist). For example, commercial property insurance frequently includes
coverage for crime, vandalism and malicious mischief. Liability policies
normally have a significant duty to defend, and are also exposed to possible
vicarious liability claims or allegations that better safety measures should
have been taken.
- Terrorism presents a unique insurability challenge in that, by definition
under the TRIA law, the intention of the perpetrators and the sponsorship
of the act are the critical coverage determinants. As we have seen in the
still unknown details of the 2002 anthrax letter attacks, we may never know
whether the next attack in the United States qualifies as a "terrorist"
act, and whether it is sponsored by a foreign interest or person as required
by TRIA.
In combination, agreeing to provide domestic terrorism coverage adds only
limited additional exposure, adds some additional premium, and reduces the probability
of disputes with policyholders. The sum of these "real-world" factors explains
why an ample market for domestic terrorism insurance exists today. Property
and liability underwriters have essentially "drawn a line in the sand," agreeing
to cover smaller losses regardless of the intentions involved.
Property insurance terrorism exclusions filed by Insurance Services Office,
Inc. (ISO), and many insurers do not apply if the total industry insured property
loss is less than $25 million (with the exception of CBRN attacks). Liability
terrorism exclusions have two thresholds below which the terrorism exclusion
does not apply (also excepting CBRN): a total insured property loss of less
than $25 million or less than 50 defined "serious injuries" (mainly death or
permanent injury).
It is important to note that there is no "line in the sand" that can be established
in the uniquely challenged workers compensation line. This is due to the fact
that no state allows workers compensation insurers to exclude terrorism risk
or place a limit on their coverage.
These practical initiatives do not, in any sense, imply a theoretical underwriting
agreement that all terrorism risk is insurable. The PWG report's conclusion
is best understood as an inappropriate ideological "zinger." It is an apparent
effort to dismiss the important argument that, much like war, terrorism is a
uniquely "public" risk essentially different from the "private" risks that are
the traditional subjects of the voluntary insurance market.
No Proposals for Congressional Review
Finally, and possibly most disappointing of all, is the failure of the PWG
authors to use their seemingly broad Congressional mandate to define any creative
options for policymakers to explore over the next year. The lack of any such
effort can only be interpreted as yet another strong message from the executive
branch that it wants to bring an end to the federal program.
The implications to risk managers and underwriters seem clear: Proceed on
the basis that no federal backstop will exist on January 1, 2008. In times of
crisis, policyholder-backed solutions are historically the best alternatives.
ACE and XL are two examples of today's "traditional" insurers originally created
by policyholders (to address the liability insurance crisis of 1985). AEGIS
and OIL Limited are two additional time-tested policyholder solutions in the
utility and energy sectors. The American Nuclear Insurers liability pool, formed
initially in response to the Price Anderson Act of 1957, is probably the closest
model to consider for terrorism risk as we collectively contemplate long-term
options.
Many policyholders are wisely taking action now to prepare for (or to mitigate)
the possibility that the TRIEA will be allowed to expire. The recent terrorism
insurance pool proposal by the Real Estate Roundtable is one good example of
a proactive initiative to provide new capacity. The creation of Belmont Insurance
by SL Green Realty to provide up to $100 million in property terrorism insurance
is yet another recent example. Regardless of whether these initiatives are active
or contingent on continued, high-level federal support, they send a positive
message to public policymakers that the private sector is doing everything within
its means to address this risk.
Conclusion
In conclusion, discounting the PWG report as an ineffectual "something for
everyone" addition to the TRIA debate is a mistake. As the terrorism insurance
debate resurfaces, the many questionable omissions and conclusions in the PWG
report need to be clearly addressed. It is also a mistake to lose valuable time
"dancing in the end zone" over the PWG report's concession that CBRN is a long-term
problem. In fact, the current focus on CBRN attacks could prove to be dangerously
myopic. As we all saw on September 11, 2001, weapons of mass destruction take
many forms. Any new solution we develop to ensure the future availability and
affordability of commercial terrorism insurance needs to be as dynamic as the
terrorism threat itself. It also needs to recognize the unique challenges terrorism
risk presents to workers compensation, the single largest line of commercial
insurance.
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