Australian Insurance Market 2003

Christopher Coyne

Partner - Clayton Utz

Brisbane - Queensland - Australia

Australian insurance market

• Professional Indemnity ("PI") and Public Liability ("PL") insurance market in Australia entered the twenty-first century characterised by:

• well accepted policies

• competitive pricing and wording

• prolonged investment boom

• low premiums

• entrenched loss underwriting

Overview of the PIDO Market in Australia

• Post WTC

• Significant changes in market dynamics due to:

• local factors

• international factors

Factors which impacted on local market

• Recent substantial corporate collapses• HIH/FAI

• UMP

• Ansett

• Harris Scafe

• OneTel

• RE AC

• NEW CAP RE

• GIO RE

• NRMA Reinsurance in Runoff

• St Paul Withdrawing

• Independent UK

• Homeowner Warranty (Dexta)

Factors which impacted on local market cont.

• Increases in:

• APRA Capital requirements

• claims incidents/severity/class actions

• role of regulators

• availability of litigation funding

• Shareholders:

• better informed and aware of rights

• profound change in way Australians view litigation

Factors which impacted on local market cont.

• Decreases:• number of Australian underwriters, ie HIH/FAI up to 50% of the

PIDO market.

• Uncertainty as to:• legislative changes, eg CLERPA; FSRA

• Tort reform

• personal liability for directors being used as a driver to enforce legislation

• underwriting policies on a claims made basis

International factors influencing the insurance market:

• World Trade Centre terrorism attack:• Possibly largest single event insurance claim in history

• Reduction of reinsurer’s capacity

• Liquidity issues – Lloyds US Trust Fund

• Decline in equities market

• Emphasis on underwriting Profitability

• Short term increases in reinsurance rates

• Retreat from risk

• Solvency issues

• Claims incidence – particularly “stop drop” class actions

• ENRONITIS

Consequences in Australian PI and D & O market

• Fewer underwriters in market

• Reduced capacity to underwrite risks

• Higher premiums/Higher Retentions

• Contraction of scope of cover • back to basics underwriting

• terrorism exclusions

• Qualitative underwriting focusing on:• claims history

• risk profile

• demonstrated risk management strategies covering corporate governance and statutory compliance

Ansett Australia

• September 2001

• Australia's second largest airline

• Voluntary administration

• 3.6 million creditors owed A$2 billion

• Administrator's Arthur Anderson

• A$10 ticket levy - employees were paid their entitlements

• Only 70% of the airline's former employees have found work

OneTel

• administration and later liquidation

• shareholders and creditors owed A$2 billion

• Usual traits of a large scale corporate collapse:

• mislead board of directors and major stakeholders

• overly optimistic business forecasts

• exorbitant director bonuses

• questionable reporting practices

OneTel (cont.)

• The company's board of directors were actively mislead as to the solvency of the company:

• criminal charges have been laid

Effect on corporate sector

Corporate governance regulation

• Increased focus on corporate governance practices in Australia:

• "Principles of Good Corporate Governance and Best Practice Recommendations":

• value statements

• practical suggestions

• suggested steps for implementation

• not compulsory for all Australian companies

Effect on corporate sector (cont.)

• increased role of Australia's corporate regulator, ASIC:• personally pursue directors

• (eg) OneTel

Auditing practices

• Auditor's independence:

• law does not require independence of auditors from their clients

• recommended reforms that would forbid current and former auditors from becoming a member of a clients' board of directors

• the 'Top 500' companies are required to have an audit committee: "Principles of Good Corporate Governance and Best Practice Recommendations"

Effect on the insurance market

Professional indemnity and public liability insurance

• HIH/FAI

• 50% of the PI market in Australia

• UMP

• 60% of Australian doctors

The HIH Group

• Second largest insurer

• Negative net worth of approximately A$2.8 billion

• Contributing factors:

• misjudgement of risks:

• under-reserving of approximately A$5 billion

• poor management decisions

• 1998 purchase of FAI

The HIH Group (cont.)

• Arthur Anderson audited the company's 2000 accounts:

• A$468 million in net assets

• did not follow generally accepted auditing standards

• "may have knowingly involved themselves in...a quite deliberate deception".

United Medical Protection - Australasian Medical Insurance Limited• PI insurer of more than 60% of Australian doctors

• Provisional liquidation

• Net liabilities of A$418.5 million

United Medical Protection - Australasian Medical Insurance Limited (cont.)• Causes:

• A$368 million in incurred-but-not-received claims

• expansion just prior to the failure of the HIH Group

• falling share markets

• higher reinsurance costs after September 11

• regulatory changes in NSW

• increasing medical malpractice claims

United Medical Protection - Australasian Medical Insurance Limited (cont.)• Government response:

• Federal Government agreed to assume liability for claims incurred-but-not-reported until December 2003:

• recoup the costs of the scheme from a levy

• in most cases will cost less than A$1,500

• doctors practicing in high risk/high claim areas

• charged a substantially higher levy

United Medical Protection - Australasian Medical Insurance Limited (cont.)

• Technically insolvent:

• government's assumption of liability scheme and the court settlement would allow the company to trade out its current difficulties

• the court deterred a winding up order.

Effect on the insurance market (cont.)

• Demise of these insurers has altered the insurance market in Australia:

• decrease in the number of underwriters

• reduced capacity to underwrite risks

• increased focus on claims history, risk profile and existence of demonstrated risk management strategies covering corporate governance and statutory compliance

• increased claim costs, higher premiums and deductibles

• contraction of the scope of cover available

Effect on the insurance market

• Legal profession:

• escaped some of the rise in PI insurance premiums due to state based schemes

• medium and small law firms effected significantly in excess market

• tenfold increase

• top tier firms:

• modest increases

• 10% - 20%

Director & officers insurance

• Strategic Insurance & Risk Solutions (Sirs)

• Survey:

• underwriters' and brokers servicing the Australian D&Oinsurance market

• accuracy of the information that has been disseminated in the media

• views on the market and its future

Results

• Premiums increases:

• extent of premium increases have varied:

• average ranged from 10% to 30%

• factors driving significant premium increases:• exposure to the jurisdiction of the USA

• poor underwriting

• increased reinsurance costs

• continuing increases of between 10% and 30%

Results (cont.)• Capacity:

• significant capital has left the D&O insurance market:

• collapse of HIH

• withdrawal of St Paul Insurance Company, Gerling Insurance, GIO

• rationalisation

• still sufficient competition

• capacity in excess of $200 million:

• larger and complex clients

• competition

• six insurers

Results (cont.)• Access to that capacity is stiff:

• shrinking market

• increased regulatory requirements:• increased insurer capital adequacy requirements

• Consequently more scientific underwriting practices:

• ensure capital is being appropriately utilised

• completely satisfied with the information provided to them

• Excess Layer Capacity was no longer simply a function of premium

Results (cont.)

• If the risk is not a poor quality risk and is presented correctly, obtaining insurance not impossible

• Submission of information to underwriters:

• may require additional information:• business activities

• annual reports

• financial statements

Results (cont.)

• Require significant and proactive participation by the insured:

• take control of the process

• be proactive

• no longer rely upon underwriters seeking information

• provide information before being asked

• commence the process early

Results (cont.)• demonstration of good governance:

• Governance Statement

• membership of industry associations

• independent report on an organisation's governance policies and practices

• Fundamental change:

• change in the structuring of layered cover in Australia

• maximum now available

• $50 million for any one risk

• protect themselves from significant loss by "buffers"

State and Federal Government response to the crisisMinisterial summit - May 2002

• Cost and availability of PL insurance

• Concluded crisis attributed to:

• law of negligence unclear and unpredictable

• too easy for plaintiffs in personal injury cases to establish liability

• damages awards in person injuries cases are too high

State and Federal Government response to the crisis (cont.)Response to the findings of the first Ministerial summit

• Established the Negligence Review Panel:

• enquiry into the law of negligence

• develop a series of proposals

• principled approach to reforming the law of negligence

State and Federal Government response to the crisis (cont.)

• report on:• matters relating to professional negligence

• interaction of the Trade Practices Act 1974 with common law principals

• statute of limitations

• task:

• changes to impose a reasonable burden of responsibility on individuals to take care of others and to take care of themselves

• strike a balance between the interests of injured people and those of insurers

Implementation of the recommendations of the Negligence Review Board• inconsistent state reforms

• ineffective patchwork solution

• compounded the industry's problems

Effect of Inconsistent State Reforms

• Increased compliance costs

• Forum shopping among jurisdictions:• proportionate liability

• limitations period

• Make claims practically unworkable:

• differing heads of damage

• different statutory provisions

• administratively unworkable

Need for consistent national reforms

• Nationally consistent reform package combining:

• professional standards legislation

• a consistent application of proportionate liability

• appropriate amendment of the Trade Practices Act 1974 (Cth) ("TPA")

• extend the Australian Competition and Consumer Commission’s ("ACCC") powers from a supervisory role to include clear investigative and enforcement powers

Ministerial summit - 6 August 2003

• Endorsed a nationally consistent reform package of:

• professional standards legislation;

• a national model for proportionate liability;

• legislative amendments to the Trade Practices Act 1974 and section 54 of the Insurance Contracts Act 1984.

Professional standards legislation

• Caps the potential liability of participating professions in return for mandatory levels of PI insurance cover and improved standards of service:

• risk management programs

• continuing legal education

• discipline and complaints procedures

Professional standards legislation (cont.)

• Scheme ensures professionals are adequately insured:

• cover all consumer claims

• 95% of corporate claims

• Implemented on a nationally consistent basis:• some flexibility in individual states

• similarly to the NSW legislation

Professional standards legislation (cont.)

• Only be granted to associations and not individuals

• Affect the affordability and availability of PI insurance

• Cut premiums by up to 40%

Nationally consistent proportionate liability

• Defendants notify a plaintiff of the identity and alleged role of any other potential defendants

• Decrease the incentive for plaintiffs to seek out the defendants with the "deepest pockets"

• Encourage insurers back into PI insurance

Legislative amendment

Amendment to the TPA

• Undermine and frustrate any reforms that attempt to cap potential damages

• Source for claims for personal injury and death

• "Catch all" provision in litigation against professionals:

• damages could not be reduced by using the doctrine of contributory negligence

• easier to recover the full amount of any loss

Legislative amendment (cont.)

• Commonwealth specifically committed to harmonise the TPA and the Corporations Act 2001 with the professional standards legislation

• Similar changes will be required to State and Territory legislation

Legislative amendment (cont.)

Amendment of section 54 of the Insurance Contracts Act

• FAI v Australian Hospital Care:

• moved Australian law away from international practice

• more difficult for insurance companies to avoid honouring PI policies

Legislative amendment (cont.)

• Section 54 of the Insurance Contracts Act provides that:

"Subject to the section, where the effect of a contract of insurance would, but for this section, be that the insurer may refuse to pay a claim ... by reason of some act of the insured or of some other person, being an act that occurred after the contract was entered into ... the insurer may not refuse to pay the claim by reason only of that act but the insurer's liability in respect of the claim is reduced by the amount that fairly represents the extent to which the insurer's interests were prejudices as a result of that act."

The Decision

Section 54 of ICA is available to relieve an insured of a failure to give written notice to the insurer of circumstances, of which the insured was aware, which might subsequently give rise to a claim, or otherwise to make a claim, within the period of insurance.

Date of decision - 27 June 2001 - 4:1 majority (Gleeson J dissenting)

Legislative amendment (cont.)

• Broad interpretation of the section:

• undermined the existence of "claims made and notified" PI policies in Australia

• recognition of the undesirable effect

• up to the legislature to amend the legislation accordingly

Effect in the market

• Australia media contends decision has affected the willingness of international insurance companies to underwrite Australian PI policies

• Sirs survey:

• five and seven London-based D&O insurers are actively writing D&O insurance for Australian

• additional capacity of approximately $150 million into the Australian market

Effect in the market (cont.)

• of the underwriters surveyed, less than half indicated that alterations had been made to their policy wordings in response to the High Court decision:

• by removing the "deeming" clause

• avoid the impact of the s54 of the Act

Effect of government reforms

• Actual impact of those reforms on premiums not yet apparent

• Personal injury - which only constitutes a small proportion of most insurers claims - has so far been the focus of legislative reforms

• Some insurance companies of not factoring cost saving that have resulted from law reforms

Effect of government reforms (cont.)

• Will take 2-3 years before legislative reforms facilitate premium decreases

• Insurers expected premiums to increase by between 11% and 20% in 2003

• Profitability of the insurance industry is looking slightly more positive:

• increase in premium revenue

• insurance rationalisation