A catastrophic event property deductible (“CAT deductible”) differs from a traditional property insurance deductible. CAT deductibles are a significantly higher out-of-pocket expense to the policyholder and apply to specific perils (e.g. named storm, hurricane, flood and earthquake) rather than to all perils. The appearance of CAT deductibles emerged as a way for insurers to offer property insurance in high catastrophic risk areas while keeping the coverage affordable, although policyholders will likely disagree on this point.
The format of a CAT Deductible will be as creative as the underwriters, agents, brokers and policyholders negotiating it. The three most popular forms of CAT deductibles are a high fixed dollar amount deductible, a deductible expressed in terms of National Flood Insurance Program (“NFIP”) limits, and a percentage deductible.
A CAT deductible may be expressed in terms of a large fixed dollar amount. The fixed dollar amount will apply to certain property, per location or, more commonly, per occurrence.
A flood deductible may be expressed in terms of NFIP limits. For example:
The meaning of these provisions is not the same, and the potential impact to a policyholder is significant. Courts have wrestled with how to interpret this wording. The NFIP has different programs and maximum limits available. Consider the financial impact of a maximum available limit deductible of $500,000 per building and $500,000 for its contents or $1,000,000 per building/contents. Often, there is a time element deductible in addition to this substantial deductible (e.g. $100,000) because the NFIP does not insure time element.
To the extent possible, the harshness of this deductible approach should be tempered with a deductible application road map that includes, but is not limited to, the following elements:
One of the most common CAT deductible expressions is as a percentage. Percentage deductibles were originally applied in high hazard earthquake zones. Hurricane percentage deductibles in coastal areas started to become popular in the 1990s after Hurricane Hugo (1989) and Hurricane Andrew (1992). This deductible strategy applies to risk profiles susceptible to named storms (such as hurricanes, typhoons, tropical storms and cyclones), earthquakes, floods and sometimes even traditional wind/hail events.
This approach applies a percentage to the value of the property and business income & extra expense (“BI/EE”). However, the other criteria will set one insurer’s application of a percent deductible apart from another insurer’s application. Additional criteria may include, but not be limited to:
The property values that are used to calculate the percentage-based deductible can vary. For example, is the deductible calculated utilizing:
Clearly, the calculation result will be significantly different depending on the methodology used by the insurer.
The valuation date of the property also comes into play. In some cases, the difference between the valuation periods in the deductible calculation may not be significant. However, as the economy improves and property and BI/EE values increase, the importance of this distinction becomes clear.
The geographic region in which the property is located must also be considered. Flood and earthquake geographic qualifiers are expressed in terms of “zones,” while hurricane and named storm are expressed in terms of “wind tiers.”
The coastal areas along the Gulf Coast and Atlantic Ocean, often called Tier 1, will have a higher percentage deductible (e.g. 5%) than areas lying 150 miles or more inland, which are referred to as Tier 2 or Tier 3 areas (e.g. 1-3%). Geographic areas may be defined as an entire state (e.g. Florida) or by counties and are placed in these various hazard tiers for purposes of applying deductibles and limits of insurance.
Similar geographic classifications apply to earthquake and flood. Property in high hazard earthquake zones like Alaska, Hawaii, California, New Madrid and the Pacific Northwest will require a higher percentage deductible than property located in other areas of the United States. The deductible percentage for property located in high hazard flood zones, such as A or V, will be higher than for property located in a region of the country which rarely floods.
The timing of loss, damage or destruction may affect the application of a CAT deductible. A CAT deductible may include the following timing conditions:
Is an hour period good or bad? It depends. What if the named storm hovers over a geographic area for five days? The risk profiles of policyholders are not the same and the “good or bad” analysis should be performed on a case-by-case basis.
The policy will define whether an event is considered a hurricane or named storm. A hurricane CAT deductible will apply when the loss, damage or destruction of property is caused by a hurricane and not some other weather-event category. NOAA has stated: “When a storm's maximum sustained winds reach 74 mph, it is called a hurricane.” A named storm includes a hurricane and other named storms, such as tropical depressions and typhoons.
Unfortunately, it can be difficult to determine if the storm is a hurricane or some other storm category when loss, damage or destruction occurs. This can create challenges and frustration during the claim adjustment process. When a hurricane becomes a lower category storm, the insurance and government regulators may guide insurers as to what deductible will apply. For example, Hurricane Sandy was a hurricane as the storm traveled up the Atlantic coast. However, the storm was downgraded to a tropical storm before making landfall. While some insurers applied their hurricane CAT deductible to this lower category storm, the Governors of New York, New Jersey and Connecticut disagreed.
To avoid this situation, many insurers prefer to use a named storm CAT deductible instead of a hurricane CAT deductible. The application of a named storm definition requires the CAT deductible to apply on a broader scale than just a hurricane.
Some insurers require a CAT deductible approach for other wind/hail storms, as well. This is a deviation from traditional industry practice. Other types of storm events occur throughout the country. While the risk profile of an insured is always a factor in determining what the deductible structure will be, it is important for policyholders to understand whether their insurer requires a CAT deductible approach to common storms.
When a policyholder has high property deductibles, some insurers will negotiate an aggregate and trailing or maintenance deductible. The aggregate deductible will place a cap on the amount a policyholder will pay in high deductibles during a policy year. Once the aggregate deductible cap is reached, the deductible going forward during that policy year for future loss events is a significantly lower amount (e.g. $25,000). The application of an aggregate deductible with a trailing or maintenance deductible will differ between insurers and isn’t offered by all insurers.
Ideally, deductibles should not stack in a policy. However, sometimes this cannot be avoided. Policyholders should understand how their policy will respond when more than one deductible may be applied after a loss event. This is particularly important when a policy has one or more CAT deductibles because of the substantial cost-shifting to the policyholder.
For example, during a named storm, a policyholder may incur loss from wind, flood and even other perils, like looting, fire or explosion. There is much litigation concerning how two or more deductibles apply to an event. Deductible provisions apply in conjunction with all policy provisions and are not stand-alone provisions.
Catastrophic events do not always result in loss to property or BI/EE values reflected on a Statement of Values. Sometimes, the loss to a policyholder will only affect sub-limits on the policy (e.g. debris removal of landscaping). Deductible wording may allow insurers to apply the CAT deductible to this kind of loss. If possible, the deductible wording should be amended so the smaller “all other perils” deductible applies in this situation. However, this is not a common approach and isn’t available in many situations.
State laws and insurance regulations are designed to protect consumers. Insurers must follow state laws and regulations when the insurer binds property coverage in a state. Failure to follow state laws and regulations may result in deductible provisions being found null and void.
While there are exceptions or carve-outs in laws and regulations for non-admitted insurers (excess & surplus lines), it cannot and should not be assumed that non-admitted insurers have no obligations to consumers. To make this assumption would be an error.
CAT deductibles place a substantial cost-shifting burden on policyholders. Policy wording is crucial to determine the potential financial impact of high deductibles. It should not be assumed that all parties involved will interpret wording the same way.
This article was authored by Jennifer Walker, CPCU, CRM, CIC, CEBS, CIT, GBA, ARM, AIM, AIC, ALCM, associate broker with AmWINS Brokerage of Georgia in Atlanta and member of AmWINS’ National Property practice.
Legal Disclaimer. Views expressed here do not constitute legal advice. The information contained herein is for general guidance of matter only and not for the purpose of providing legal advice. Discussion of insurance policy language is descriptive only. Every policy has different policy language. Coverage afforded under any insurance policy issued is subject to individual policy terms and conditions. Please refer to your policy for the actual language.
(c) 2017 AmWINS Group, Inc.
Over the last few years, the legal cannabis industry has seen rapid growth and had a significant impact on the U.S. economy. With states continuing to legalize its use, insurance needs for cannabis-related businesses are becoming a popular topic of discussion. This article examines the evolving cannabis industry by exploring five key issues impacting coverage.
Construction contract negotiations, which determine the kind and amount of insurance required for a construction project, can be time-consuming, complicated and frustrating. Project owners require contractors on a project to name the project owner as an additional insured on the contractor’s casualty insurance program. It's important that both project owners and contractors understand the coverage provided by these additional insured endorsements. This article discusses four common ISO additional insured endorsements related to commercial general liability policies purchased by contractors, including their limitations, conditions and exclusions.
A common complication during the claim process is the late reporting of claims. In some cases, a late claim can put the agent or broker's own E&O policy in jeopardy. There are many reasons for missing a reporting deadline; however, in most cases, they will not matter to the insurer or the courts. This article discusses typical claim reporting requirements, common causes of late reporting, and recommendations to mitigate the risk of late notice claim denials.
The theories of recovery, as well as the ensuing loss provisions, contained in property insurance policies are often complex and, at times, seemingly in conflict. Although a policy may not directly address these theories, their application by courts plays a significant role in the coverage determination process after the claim. It is essential that brokers understand the primary theories of recovery – Efficient Proximate Cause, the Concurrent Causation Doctrine, and the Anti-Concurrent Causation Doctrine – in order to navigate the challenging post-claim process and effectively serve their clients.
Ordinance or Law insurance coverage provides limited protection for costs associated with repairing, rebuilding, or constructing a structure when physical damage to the structure by a covered cause of loss triggers an ordinance or law. Compliance with ordinances and laws after a loss can add 50% or more to the cost of a claim. This article will help you educate your insureds on exclusions and limitations and help them take a proactive approach to their insurance program.
In 2017, the issue of sexual harassment – especially in the workplace – gained greater awareness as accusations of harassment by high-profile individuals were constantly in the news. In many cases, sexual harassment lawsuits seriously impacted businesses and their respective insurers. Employment Practices Liability Insurance not only provides protection against employee lawsuits, but can also help your clients mitigate their sexual harassment risks.