7 Stops on the Road to Mass Tort Claims Asset Recovery

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The road to asset recovery in a mass tort claim can be full of twists and turns, bumps and potholes—especially if you don’t have a roadmap! That’s not to say that you can avoid all obstacles, even with a roadmap, but at least you may have a little warning about what lies ahead and how to best navigate the process.

Before pulling out the map, let’s cover a few basics about mass tort claims. First, a mass tort claim is not just a class action suit:

Mass Tort  [definition] – civil lawsuits involving multiple individuals who have been injured against one or few defendants; each plaintiff seeks its own settlement.

VS.

Class Action Suit [definition] – multiple individuals who have been injured against one or few defendants brought into one consolidated case; all parties in the lawsuit are treated as one plaintiff and thus may divide the settlement equally, though there may be several classes within a class action.

Mass tort claims generally fall into one of four categories. You will recognize these along the road in the infographic below:

colored boxes with four different icons representing the four categories of mass tort claims: medical device injuries, harmful effects of pharmaceuticals, toxic exposure and product liability

Although no two cases are exactly the same, we have identified 7 stops along the road to mass tort claims asset recovery that you may encounter before recovering your assets—

Full size infographic in full color depicting a game-board like path with 7 stops on the way to asset recovery

The Power of Two: Insurance Archaeology + Claims Management

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When faced with mass tort claims, a defendant organization can avoid substantial losses by successfully recovering funds from current and historical insurance policies. This is often easier said than done, as many mass tort claims become highly complex due to the years, even decades, of their relevant time periods. In cases like these, the key to gaining clarity and a successful recovery of funds requires two critical functions: insurance archaeology and claims management. Together, they ensure highly effective management of insurance carrier interactions and a thorough discovery of all the coverage funds available.

Following are three real-world instances that demonstrate the favorable outcomes of engaging in both insurance archaeology and effective claims management when faced with mass tort claims.

Arcina’s Persistence Pays Millions in Environmental Claim Recovery

Mass tort claims management can rapidly grow in complexity when attempting to recover funds from eight separate insurance carriers. That’s exactly what happened when a manufacturing company sought to recover funds for environmental damage claims. 

Arcina launched an insurance archaeology effort that discovered and produced policies dating back to the 1940s and extending through the 1960s. The team then developed a strategy to engage specific carriers with favorable policy language that would enable the client to obtain a recovery from each carrier. Over a three-year time span, Arcina advised the manufacturing client in negotiating with the eight insurance carriers to recover on environmental claims spanning several decades. The advice centered on helping the client to remain focused and resolute in obtaining settlements for the claims.  

When litigation between the carriers erupted, Arcina continued to advise the client and collaborated with outside counsel. Negotiations with each carrier paid off, resulting in a multi-million-dollar settlement that also would provide resolution for any future environmental claims.   

Archaeology and Claims Advocacy Deliver Unexpected Results

A water utility, on the verge of a trial, faced a significant liability related to historic asbestos claims. The company had limited insurance to provide coverage and defense for the claims, and so, turned to Arcina to learn if they had overlooked any potential coverage or strategies to maximize the recovery of funds. 

The Arcina team immediately implemented an insurance archaeology and advocacy plan. In just two weeks, the team located significant insurance assets and arranged for defense of the claims. 

On the eve of the trial, the case settled with the authority of multiple insurers, and the insurance carriers ultimately reimbursed 100% of the defense costs, producing a seven-figure recovery for the client. Diligence and persistence resulted in the location of over $100 million in coverage for pending and future asbestos claims, providing the client with both peace of mind and a reliable insurance asset.

Claims Management Wins Coverage and Offloads Client Staff Burden

A distributor of healthcare products was deluged with mass tort claims brought by individual plaintiffs related to a medical device malfunction. The distributor’s risk management team did not have the necessary bandwidth to manage the claims and required assistance to both organize and perform ongoing management. Moreover, fees from outside legal counsel had already mounted to approximately $1 million per month. Company management needed to relieve the burden placed on their risk management team while ensuring a more cost-effective method to achieve their insurance recovery goals.

Arcina assumed the claims management function from the client’s limited risk management staff, almost instantly enabling them to focus on other critical risk issues. Over the course of just 12 months, the Arcina team noticed nearly 3,000 claims to the appropriate insurance carriers and normalized the process to include collaboration among risk management, the insurers and legal counsel. By constructing two databases to centrally manage volumes of data for the claims, Arcina enabled the insurers to access relevant data via a secure portal – a step that went a long way toward optimizing the client’s relationships with insurers.

The ROI of engaging Arcina was impressive. Thanks to the timely management and on demand access to information, Arcina and the client established a cooperative dialogue with the insurance markets, resulting in total avoidance of litigation. The client also obtained more than $100 million in coverage for indemnity and defense fees from multiple insurers. A collaborative relationship continues with Arcina as an established trusted advisor. And the risk management team has been free to  pursue their department responsibilities unencumbered from day-to-day mass tort claims management.

Trust the Power of Two 

These client success stories – and many more like them – demonstrate how diligent insurance archaeology, together with effective claims management, ensure proper recovery and remuneration for defendants in mass tort claims cases. Learn more by speaking directly with one of our consultants.

Confessions of a Mass Tort Claims Administrator: The 4 Biggest Mistakes I’ve Witnessed

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By Maria Magalona | Consultant, Complex Claims 

As a Complex Claims Consultant with Arcina Risk Group and nearly 40 years of claims experience, I’ve witnessed many defendant organizations with mass tort claims making mistakes in their approach to recovering insurance funds. It’s understandable. Many are experiencing their first mass tort situation, and the claims management process is both complex and unique within the insurance industry.

While the list of claims management mistakes is long, there are four that I see most frequently. Spotlighting these ‘Big 4’ mistakes will help you avoid the most frequent problems in managing your next mass tort claim and recover the maximum reimbursement from insurance carriers.

Mistake #1: Neglecting to, or being late in, noticing insurance carriers

As a mass tort claim defendant, you must notice all carriers who issued policies responsive to the claim brought against you. This may include your current insurance carrier as well as any known prior carriers. Do not ignore expired policies and the carriers that once provided them. Mass tort claims often span several years or decades, and there exists a reasonable probability that an expired policy will provide coverage for at least a portion of the claim. Let the carrier tell you that the policy they issued is not responsive and why.

To notify your current and prior carriers, you need to know the years of the alleged years of incident. Identify any and all carriers that provided coverage within those years. Aso, identify the timeframe of the event or ‘Date of First Exposure’ (DOFE) when noticing the carriers. You must provide the DOFE, as carriers will deny coverage whenever the date of first exposure or the timeframe cannot be proven to have happened within the coverage period.

In cases where the exposure stretches beyond the coverage period, you may still be able to recover funds from that policy. The insurer will simply prorate the claim(s) according to the coverage period. For example, a public school district may have had one insurance carrier providing coverage from 1960 to 1970 and a different carrier from 1971 to 1980. If a mass tort claim involved dates of exposure spanning 1968 to 1972, both insurance carriers would have coverage responsibility and allocate costs amongst themselves. 

  

At Arcina, we execute this step both thoroughly and swiftly, ensuring that we notice all past and present carriers upon discovery of coverage.

Mistake #2: Not recognizing the differences between policy types

There are two major policy types that respond to mass tort claims – an occurrence policy and a claims-made policy. An occurrence policy is the most common and most flexible of the two, because it provides lifetime coverage for the incidents that occur during a policy period, no matter when you learn about the claim. Under the more restrictive claims-made policy, incidents are only covered when they both happen and are reported during the coverage period. Make sure you know which type of policy you have, as you will need to act much faster when seeking funds from a claims-made policy. Nonetheless, once you learn about the claim, report it to the carrier so you avoid any Failure to Timely Notice denials. 

You should also perform a thorough search to discover if you have any excess coverage and/or coverage for punitive damages. An excess coverage policy is an additional policy layered onto the primary policy. Excess coverage serves a critical role in many mass tort claims, as defendants often find themselves on the line for damages that can reach into the tens of millions or hundreds of millions of dollars. Strangely, while U.S. courts often order payment of punitive damages on top of ordinary damages, U.S. carriers do not offer coverage for punitive damages. These are made available through the Bermuda marketplace, and you will want to check for any Bermuda-based carrier policies which your organization may have.

Through our depth and years of expertise, Arcina recognizes the differences between the various mass tort claim types and the inherent problems therein. This enables us to advise clients on proper claims management for optimum results and options when problems arise.

Mistake #3: Not reading policies and their fine print

Recognizing the terms of the policies you purchased seems like a no-brainer. Yet, a surprising number of defendants in mass tort claims cases fail to read their policies in full, particularly the fine print. Knowing all the details is the only way to avoid the unpleasant surprise of a prompt claim denial based on policy exclusions or failure to comply with its terms.  

You must identify what is covered under the policy and promptly comply with the terms of the policy. If you do not comply, the carrier has a basis to deny your claim. While the standards for prejudicial effect vary by jurisdiction, most states will require you have reported under the policy in good faith to subdue a carrier’s assertion of prejudicial effect. 

Clearly, it is paramount that nothing is missed when reviewing policy terms. We frequently manage complex claims that involve multiple parties across multiple jurisdictions. In these cases, there are often multiple carriers, which in turn, requires the management of multiple filing requirements and terms. 

Mistake #4: Not engaging an insurance archaeologist for legacy tort claims

Legacy mass tort claims occurred many years ago. Insurance archaeologists can more effectively and cost efficiently locate historic coverage than an organization’s internal resources or a law firm. These practitioners are highly skilled in the policy discovery process and have the contacts and expertise necessary for optimizing the search results. The research can result in locating policies that could provide indemnity and reimbursement of defense fees, the latter of which can be substantial. These services are normally a fraction of the cost of a law firm. 

Among insurance archaeologists, Arcina’s seasoned team is an industry leader having researched policies for decades; who understand the nuances of insurance policy construction and its evolution over the years (think Travelers’ policy numbering convention in the 1970s vs the 1990s). As a result, we manage complicated legacy claims with ease – everything from asbestos and talc to opioids across the entire healthcare supply chain, to misconduct by religious institutions and unsuitable player protection by sports organizations. 

Clients specifically turn to Arcina because of our credentials, experience, policy knowledge and relationships with insurance markets. We produce results throughout the claims management process and aim to secure the greatest reimbursement for clients.

Excavating Proof: How Insurance Archaeology Plays an Important Role in Mass Tort Claims Success

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Any organization faced with a mass tort claim should consider insurance archaeology as part of its defense strategy. It is a vital tactic in unlocking an asset in order to obtain insurance recovery and reimbursement. Without insurance archaeology, defendants may struggle to manage a mass tort claim cost-effectively leaving them exposed to significant financial impact. This is especially true for a legacy claim that surrounds an issue or event that took place decades ago or over multiple years. For instance, events such as asbestos exposure, environmental contamination, talc-related cancer, sexual misconduct, and sports concussions commonly occurred over decades and can date back to the 1960s or 1970s.

Insurance archaeology helps offset indemnity and defense fees

Fees can mount really quickly in mass tort claims, and often, organizations with a distant or no direct relation to an event, find themselves facing a claim. Nowhere has that been more evident than in mass tort cases of asbestos that have typified the ‘sue first and get facts later’ approach. Plaintiffs routinely over-name defendants, naming 65 on average in asbestos lawsuits. Defendant organizations that are unable to locate evidence of applicable insurance coverage – from existing or expired coverages – must absorb defense fees and other fees that can climb into the millions of dollars.

Certain courts are now requiring evidence to support each mass tort claim against each defendant – an encouraging step toward tort reform. Yet, many defendants still find themselves mired in cases that have applied the over-naming approach. Small and mid-sized defendant organizations find the situation particularly frustrating, especially when they are named alongside industry behemoths with deep pockets that are legally and fiscally prepared  to address these claims.  

Insurance archaeology removes the insurance coverage mystery

A highly experienced insurance archaeologist follows a proven and effective approach to locate and access historic insurance policies. Without it, many defendants fail to account for assets which they already purchased and paid for years ago. This happens for many reasons, such as changes in company ownership, mergers or acquisitions, or the exit of key people from the company with institutional knowledge. An insurance archaeology team with the expertise, resources and insurance industry relationships can conduct a comprehensive, disciplined search via multiple channels domestically and abroad to locate potential coverage for a client. 

Engaging insurance archaeology firms also reduces the client’s cost of risk in that the rates to locate coverage are often a fraction of lawyers’ hourly rates to research historic insurance. Skilled archaeologists are accustomed to working in a world of secondary evidence – receipts, cancelled checks, board meeting minutes, etc. – to demonstrate evidence of actual insurance policies. The aforementioned disciplined and effective approach produces quicker and better results.  

Insurance archaeology provides value beyond locating coverage

Arcina has differentiated itself over the years by assisting clients beyond locating their historic insurance coverage. The act of locating insurance alone is often just the tip of the coverage iceberg, as clients need to understand how the coverage can be applied to their specific mass tort claim case. 

To bring clarity, Arcina provides clients with an overview of their historical insurance assets via a multi-layered chart of the coverage history. It clarifies the terms of each coverage policy, the limits, the solvency status and past impairments. Such a cumulative snapshot of historical insurance coverage helps to quantify the assets and model the best course of action to recover any monies due to the insured. This gives defendants the confidence to pursue a claims strategy and peace of mind to optimally manage their risk related to future legacy mass tort claims.

Beyond insurance archaeology, Arcina has developed a well-defined process to “perfect the claim” which makes it easy for clients to maintain confidence throughout the claim’s lifecycle. Close collaboration with the insurance carrier and legal counsel enables a non-adversarial approach further reducing the cost of risk and increasing the probability of a positive outcome. 

6 Pitfalls of Mass Tort Claims Management – and How to Avoid Them

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Mass tort cases are highly complex, can involve a large number of people and entities, and can drag on for several fiscal years. If your organization is a defendant in a mass tort case, you need to follow an effective process when managing the claims. Not doing so could end up costing your organization hundreds of thousands of dollars – even millions – in lost coverage. 

In our experience, following are the 6 most frequent pitfalls that can adversely impact your mass tort claim management. 

1. Failure to notice the insurance markets 

Insurers often move slowly in response to complex and costly mass tort claims. Therefore, as soon as circumstances that might give rise to a loss or a claim come to light, you should provide notice to the insurer(s). If there is even the slightest hint of potential coverage, contact your insurance broker and request that they notice your current carriers and those known to have placed coverage previously, even if you do not have the actual policy in hand. 

Be sure to submit your notice to insurers properly. Coverage policies normally provide detailed instructions regarding how to send a notice and who should receive it. Specifically following these instructions helps to avoid potential coverage disputes down the road. 

If you hire a lawyer to respond to a claim, include that information in your notice to the insurer. Request from the insurer immediate acknowledgment and assistance regarding your intentions, as this will further minimize disagreements on what is or is not covered. Keep in mind that coverage often includes defense costs with the carrier potentially having a say over attorney assignment. If you do not have an attorney, the carrier can appoint one on your behalf. It is important to read your policy as some may have provisions regarding attorney appointment.

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2. Failure to find responsive coverage 

“Find” is the pivotal word in this potential pitfall. As a mass tort case defendant, you need to find all the insurance policies your organization owns and identify any of those that could potentially respond to the events or risks. Many defendants are actually not aware of the insurance coverage they once had. For businesses that have changed ownership or merged over the years, current owners may not know that the original owner had coverage dating back to the claim period. 

Maximize your potential coverage by engaging an insurance archaeologist to locate evidence of historical insurance. Even if you do not have the actual policy, carriers have a duty to investigate your claim and determine if they have responsive coverage. To support your claim, share any located evidence, such as broker correspondence, internal records, and accounting records. 

Early noticing to an insurance carrier supported by documentation found during an investigation or insurance archaeology, can translate into assumption of, or reimbursement for, hundreds of thousands of dollars in defense fees when it triggers current or historical coverage. It all works in your favor, as long as coverage exists that is responsive to the allegations of the complaint.

3. Failure to consider excess policies 

If you are not considering excess policies, you are simply leaving money on the table. Yet, many defendants never notice the excess carrier that can provide another layer of coverage, because this coverage is not triggered by claims. Claims always trigger primary coverage first. In fact, excess policies will not respond until the cost threshold of the primary coverage is reached.

The damages in many mass tort cases can reach well above the primary coverage threshold and into the millions of dollars, making identification of excess policies vital. Make sure you know who the excess carriers are and include both in the noticing and updating of your claim. 

4. Failure to comply with the policy 

Simply put, insurers can deny coverage when you fail to comply with one or more terms of the policy. Beyond navigating certain policy exclusions such as asbestos or misconduct, etc., you should be aware when policy terms extend beyond what is covered and the coverage period. Many policies incorporate strict terms for timely reporting of a claim, and some even direct the insured to a specialty department for legacy claims. It is not uncommon for a specialty claims department to use its own unique intake method, different from standard coverage lines like general liability or workers compensation.

5. Failure to understand how to juggle multiple carriers 

Mass tort claim defendants seldom anticipate the challenges of managing multiple insurance markets – a process that is rarely straightforward. For instance, excess carriers follow protocols that vary, based upon three major criteria: carrier, geography and claim type.

Geography impacts the claims process more than any other criterion. Reporting protocols change by location, with the London, Bermuda, and U.S. markets each having their own specific protocols. By far, filing a claim is easiest under U.S. protocols. With Bermuda carriers, even if the excess carrier has a U.S. counterpart, you must file your claim with the Bermuda carrier, as it is considered to be a different entity from the one operating in the United States.

London serves as the de facto epicenter of excess coverage. Lloyds of London has the major share of the excess insurance market and is the usual concerned entity. The good news is that London markets and brokers commonly retain records back to the 1950s.

6. Failure to know your own story 

Many organizations, especially those with long histories or those that have undertaken mergers or acquisitions, do not understand their full corporate genealogy and applicable insurance history. This is particularly true for organizations that did not have a document retention strategy or robust means for transforming and tracking paper-based information into electronic formats during the 1980s and 1990s. As a result, mass tort claim defendants often find themselves surprised to learn that they own valuable assets in never-before-mentioned locations – even in remote storage facilities. Information assets spread far and wide can contain valuable information about ownership, broker history, insurance carriers and other data that can support  a potential claim.

As noted in these 6 Pitfalls of a Mass Tort Claims Management, there are a lot of moving parts once a mass tort case arises. Most often, mistakes are made because of a lack of internal expertise and resources. Because we specialize in managing mass tort claims on behalf of defendant organizations, we not only understand the pitfalls but also know how to avoid them. For a more in-depth discussion regarding your own unique situation, please contact us directly. 

Perfecting the Claim, Part 2: The Arcina Advantage

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Welcome to Part 2 of our 2-part series on Perfecting the Claim. In Part 1, The 5 Steps of Mass Tort Claims Management we explained the five core steps of the mass tort claim management lifecycle. In this post, we discuss the Arcina differentiators that we apply to every client engagement to perfect the claim and ensure optimal results.

 

Tracking with Technology

 

Today, technology plays a critical role in organizing, analyzing, monitoring, and the tracking of a mass tort claim. This is due to the often-voluminous claimant and financial data. Arcina has the experience and technology tools to perform all of these tasks in unison, at scale, by leveraging a centralized technology platform that provides access to data, analytics, statistical information, and important details of the claim. In fact, Arcina has built databases for the sole purpose of gathering and maintaining all relevant claim information. This includes, but is not limited to, information on the number of cases, financial data, and geographic data.

While modern technology underpins claim tracking, how an insurance archeology firm applies the technology is equally important. Unlike the vendors of risk management information systems (RMIS), Arcina treats the technology as an enabler, not as the end game. We first  assess our client’s requirements and determine the tracking that needs to happen while engaging historic insurance and constructing a digital policy library. We then apply our technologies to track and manage the claim. Instead of clients relying on spreadsheet-based tracking, they receive our modernized, automated documentation output. Arcina also uses automated tools to report to insurance carriers, track their responses, and respond to their requests for more information. 

For organizations that do not have deeply experienced claims personnel or a high degree of tech savvy, engaging Arcina dramatically raises the level of certainty that nothing will get missed and that everything is reported in a timely fashion. Many Arcina clients actually have modern technology systems in place. Yet, they lack familiarity with best-practice mass tort claim management. In such circumstances, Arcina adjusts the claim management process to align with the client’s unique workflow and systems.

Without the type of expertise Arcina brings to bear, many defendants in mass tort claim cases have failed to recover money due from carriers. The number one reason? Defendants simply did not respond within the established time limits dictated by the terms of the policy. Arcina ensures that does not happen.  

 

Case Study One: Healthcare Products Distributor

 

In one recent case example, the Arcina team was engaged to manage the influx of thousands of mass tort claims brought by individual plaintiffs against a distributor of healthcare products related to medical device malfunction. Over the course of a year, the team noticed the claims to the insurance carriers, constructed two databases to centrally manage volumes of data for these claims, and normalized the process to include collaboration among risk management, the insurers and legal counsel. In the end, Arcina established a dialogue with the insurance markets which avoided litigation and obtained more than $100 million to cover indemnity and defense fees which were averaging $1 million per month. 

 

Proactive and Collaborative Approach

 

Arcina takes a nuanced approach to the mass tort claim management process that recognizes its people-driven nature and high susceptibility to interpersonal relationships. Not only does this include the dynamic between client, insurance carrier and legal counsel but oftentimes, Arcina has navigated within the client’s various functions bringing together the risk management, general counsel and finance offices together. 

As such, Arcina applies a unique set of best practices to perfect the claims notification process that encompasses not only specific actions, but also a targeted manner for performing each action. The Arcina approach entails the following:

 

  • Acting proactively and in a cooperative manner throughout the lifecycle of claims management.
  • Employing a claims normalization and collaborative advocacy approach with the insured, their legal counsel, and the insurance carrier.
  • Avoiding (as much as possible) an escalation of claim investigation beyond normal protocol.
  • Preserving relationships by allowing the claims process to play out.
  • Securing participation for defense fees and/or indemnity.

 

Case Study Two: Water Company

 

The proactive and collaborative approach of Arcina recently paid off in the millions of dollars for one water company client. On the verge of a trial, the company was facing a significant liability related to historic asbestos claims and had limited insurance to provide coverage and defense for the claim. Arcina immediately implemented an archaeology and advocacy plan, located significant insurance assets, and arranged for defense of the claims. On the eve of the trial, the case settled with the authority of multiple insurers, and the carriers ultimately reimbursed 100% of the defense costs and provided $100 million in coverage for pending and future asbestos claims..   

 

Targeted Deployment

 

Arcina’s primary goal in all mass tort claim cases is to get claims into the hands of the right people at insurance carriers to ensure a successful outcome and to avoid (or minimize) litigation. That may sound simple. Yet, this is where Arcina is differentiated from other insurance archaeology and claims management firms. 

The differentiation starts right at the beginning of carrier outreach. Arcina recognized long ago that the right person is rarely reachable via a carrier’s common intake form, inbox or ‘1-800’ number. So, Arcina avoids sending a claim to an insurer’s general claims email/contact address. Doing so unnecessarily prolongs the claim management process and prevents specialized treatment of the claim.

So, how does Arcina find the right individuals? This is where Arcina’s team with decades of insurance carrier knowledge comes into play. Arcina experts have spent years discovering and facilitating relationships with the appropriate insurance department and/or insurance personnel who handle legacy claims at the many carrier companies. Additionally, since Arcina takes a collaborative, non-adversarial approach, we have built up substantial goodwill with the likely participants in a mass tort claim. 

Put it all together, and Arcina’s combination of knowing who to reach and having pre-existing relationships with them reduces escalation of claim investigation and accelerates recovery for our clients.

 

Why defendants find the Arcina approach optimal

 

  • Non-adversarial, non-litigious
  • Preserves relationships
  • Secures participation for defense fees and/or indemnity 
  • Reduces expenses
  • Speeds recovery

The 5 Steps of Mass Tort Claims Management

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Perfecting the Claim, Part I

Risk managers, CFOs, corporate claims managers and regional brokers all strive to increase their organization’s success rate when defending against mass tort and other complex claims. Doing so requires two critical elements: (1) adherence to the proper claims lifecycle, and (2) the experience and tools needed to optimize each lifecycle step.

All too often, the second element is overlooked. Certainly, there are many organizations that can (and do) follow the proper claims lifecycle. Yet, truly performing each step with maximum efficacy is what separates the winners from the rest of the pack.

Read on to gain a high-level view of the 5-step claims lifecycle and how performing each step in a performant manner can have a dramatic impact on coverage outcomes. 

The five steps of the mass tort claim management lifecycle occur in this order:

 

  1. Review the claim and the applicable insurance 
  2. Map the claim to the appropriate coverages
  3. Deploy the claim
  4. Track insurance carrier communications
  5. Obtain insurer participation

 

Let’s take a closer look at each step.  

 

Step 1: Review the claim to identify the triggering event and potential applicable insurance

 

For any claim, the trigger is the action that causes an organization to have a loss or potential loss and to seek coverage against said loss with  specific identifiable insurance. Current insurance policies cover many claims. However, mass tort claims and class action claims tend to reference past acts that can be decades old, sometimes dating back as far as the 1940s. In these cases, defendants turn to older insurance policies to gain their desired coverage.

Organizations across nearly all industries used to rely on general liability (GL) policies before insurers started to more narrowly define – through exclusions – what they would and would not cover. Organizations protected by a GL policy (sans exclusions) are far more likely to obtain coverage today, even though the adverse event took place long ago and was just recently discovered. Another significant benefit of older GL policies is that many provide coverage for the  defense of the  lawsuit in addition to the indemnity

When reviewing current and aged policies, it is important to differentiate between ‘claims-made’ and ‘occurrence’ policies. Claims-made policies only provide coverage for incidents that occur and a claim is reported during the policy period. By contrast, occurrence policies give lifetime coverage for incidents that occur during a policy period and have no time restrictions regarding when the claim is made.   

 

Step 2: Map the claim to historical coverage

 

Understanding all the potential coverage options for a claim can present a major challenge. Many companies are, or fall within, multifarious organizations that have merged with others over the years or expanded into numerous and varied markets. So, one frequently discovers multiple insurance policies, each with its own coverages, riders and/or tails. More often, companies realize the historic policies are nowhere to be found.At this stage, it may be prudent to engage an insurance archaeologist to locate historic insurance and supplement the known available insurance assets.  Having a clear and consolidated view of the full scope of insurance coverage can dictate how an organization will respond to a claim. 

To obtain a consolidated view of historical coverage, we construct  a coverage chart. Beyond identifying each policy’s type, the coverage chart  also shows policy-specific terms and limits, solvency status and potential impairments. Solvency status reveals if the insurer is still in business, and impairments data clarifies how much value of the insurance has already been used. We then map the facts of the claim including key dates, injury, jurisdiction and damages to the available insurance coverage provisions such as dates/term, bodily injury and any exclusions. 

In reviewing the image below, it is clear that the coverage chart  provides two major benefits: assurance that nothing gets missed and the basis for preparing the defendant advocacy plan (see subsequent lifecycle steps). 

Graph that shows the insurance claim mapping process

 

Step 3: Deploy the claim

 

Once evidence of historical policies has been uncovered and mapped, the next step is to deploy the claim. And wIth mass tort, there may be many claims.This requires that the defendant organization (or its representative) notify the appropriate insurance carrier(s) regarding the claim(s). When it comes to legacy claims, insurers often have dedicated personnel to handle them. 

Upon notifying the  insurer(s), the tricky work of advocacy really begins. Here, the defendant’s representative advocates for the defendant/insured and manages their obligations related to the claim. This is where insurance industry relationships prevail. A well-connected and highly knowledgeable advocate oversees the claim from inception to closure, all while driving accountability and optimum results. 

 

Step 4: Track carrier acknowledgements & responses

 

Following Step 3, the defendant organization and its representatives need to track acknowledgements and responses from the insurance carriers. These quickly impact one’s understanding of the coverage chart against  each insurer’s coverage position – ‘covered’ or ‘denied’.

This step may sound simple, but is often where the ball gets dropped. Many organizations and the firms that represent them are not equipped with the right combination of in-house tools, technical resources and claims expertise to properly manage the onslaught of responses. Proper oversight in this step of the claims lifecycle requires vigilance at many levels, including: 

 

  • Claims data collection
  • Aggregate limits erosion
  • Processing of defense costs and indemnity payments
  • Insurer billings

 

In complex cases or cases involving multiple policies, having junior staff members armed only with email and Excel spreadsheets leads to poor advocacy results. 

 

Step 5: Communicate with carriers to obtain insurer participation

 

This final step flows from everything the defendant’s representative does in the first four steps of mass tort claim management. Here, the defendant representative responds to an insurance carrier’s investigative needs in order to obtain insurance participation. Oftentimes, the advocate must demonstrate that the facts of the claim fit the coverage. This involves sharing factual evidence beyond insurance records – items that can help the insurer with its investigation.  

 

Experienced hands manage each claims lifecycle step better

 

By breaking down the mass tort claim management process into five lifecycle steps, an organization will be better prepared to defend itself against a claim when the time arrives. That said, mass tort claims often expose organizations to millions, even billions of dollars of losses. That is why we recommend that your organization seek the advice of experts with decades of experience across industries who are fluent in each step of the claims lifecycle and can deliver the highest ROI in almost all cases.  

In part II of this series, we will take a closer look at how Arcina approaches these five steps on behalf of our clients and how this approach saves them time, money and yields successful results. 

If you have questions about your own claims management needs, we would be happy to speak with you. Get to know the professionals at Arcina Risk Group by setting up a free consult with one of our team members.