Volume 21, Issue 20 - Independent Insurance Agent


Volume 21, Issue 20 - Independent Insurance Agent

The West Virginia




2 BrickStreet Announces New

Chief Operating Officer

Tomblin’s Office Mum On

Insurance Exchange

Governor Expected to Support State-Federal

Partnership Plan; Decision due Friday

Gov. Earl Ray Tomblin is expected to scrap

West Virginia’s plans to establish a staterun

health insurance exchange, a key

component of President Obama’s federal

health-care law, according to public health

advocates and state lawmakers.

Tomblin has until Friday to notify the U.S.

Department of Health and Human Services

whether West Virginia plans to pursue its

own online health insurance marketplace

for consumers -- or leave the program to

the federal government.

The governor seems poised to decide

against a state-operated insurance

exchange, according to officials who have

met with Tomblin aides about the program.

“There has been no indication from the

administration they want to pursue a

state-run program,” said House Health

Committee Chairman Don Perdue. “The

federal government would set it up and run

it for us. I have had no indication otherwise.”

exchange. They would not confirm that

Tomblin had decided against West Virginia

designing its own health insurance program.

“The governor continues to evaluate

all options available to him,” said Amy

Goodwin, a Tomblin spokeswoman.

Jeremiah Samples, a state Insurance

Commission administrator assigned to set

up the exchange, referred questions to the

governor’s office.

“There hasn’t been a final decision yet as

to what direction the state is going to take,”

Samples said.

Perdue and others said Tomblin’s office

plans to pursue a so-called “state-federal

partnership insurance exchange” that would

leave most of the program’s heavy lifting to

the feds. West Virginia would only play a

minor role -- perhaps monitoring insurance

companies that participate -- once the

exchange was up and running.

3 The Election’s Impact on

National Insurance Issues

3 Note from the CEO

4 Big “I” and Future One

Release 2012 Agency Universe


5 Georgetown University Names

Rockefeller Aide for Exchange


6 West Virginia Tops State

Farm’s Deer-Vehicle Crash List

6 Virginia to Start Licensing,

Regulating Public Adjusters in


8 North Carolina Re-Elects

Goodwin as Insurance


8 Travelers Will Continue to

Seek Improved Pricing: CEO


10 The Next New Thing: Coverage

Issues From Fracking Claims

12 Will Regulatory Reform Trigger

Doomsday for Captives?

13 Six Tips for Effectively

Competing for Business

19 Estate Plans: A Valuable

Service to Your Clients and

Your Agency

Volume XXI | Issue XX

November 15, 2012

A Publication of

Independent Insurance

Agents of West Virginia

Gray Marion, CAE, Publisher

On Wednesday, Tomblin administration

officials canceled an interview with the

Gazette about the health insurance

“The partnership is heavily weighted to the

federal government,” Perdue said. “It’s the

(continued on page 2)

BrickStreet Announces New Chief Operating


T.J. Obrokta has been named BrickStreet’s

Chief Operating Officer (COO). In his new

position, Obrokta will continue to report to

President and CEO Greg Burton and will

remain BrickStreet’s General Counsel. He

also will assist Burton in overseeing and

implementing BrickStreet’s leadership,

strategy, operations and management


“I’m thrilled to have TJ remain as a part of our senior management

team in this new position,” Burton said. “He has and continues

to be a great asset to BrickStreet. I will rely heavily on TJ to

coordinate the efforts of the other members of the senior

management team to continually refine and implement our

strategic growth plan and ensure its execution.”

Obrokta’s company-wide responsibilities also will include

maintaining the company’s existing agency relationships,

identifying and building new agency relationships, and managing

the distribution channels in West Virginia and other states.

A native of Ona, West Virginia, Obrokta is an active member of

Our Lady of Fatima, and participates in various community and

church activities and has volunteered with Habitat for Humanity,

United Way, Branches Domestic Violence Center and Little

League baseball.

Tomblin’s Office Mum On Insurance Exchange

(Continued from Page 1)

same old story. We’re taking the easy way out.”

Tomblin’s administration has spent thousands of man-hours

and millions of dollars in federal grant money planning a stateoperated


In April 2011, Tomblin signed legislation that established a “West

Virginia Health Benefits Exchange” to be headed by a 10-member

board of directors. Tomblin hasn’t appointed any members. “It’s

my understanding that they’ll never be appointed,” said Renate

Pore, health policy analyst with the West Virginia Center on

Budget & Policy in Charleston.

In June, the state solicited bids for the information technology

required to run the online health insurance program. But Tomblin’s

office has held up the bid request in the state Purchasing

Division, according to a report by the Kaiser Family Foundation.

Political observers say Tomblin would have faced a severe

backlash from voters and attack ads from Republican

gubernatorial candidate Bill Maloney, if the state had taken

additional steps to implement the health insurance exchange, a

key component of “Obamacare.”

Politics aside, supporters of a state-run exchange said the

federal government was poised to pump millions of dollars into

West Virginia to set up the program.

“We could have controlled our own destiny,” Pore said. “It’s a

missed opportunity.”

Last week, the federal government notified states that they

would have an extra month - until Dec. 16 -- to deliver detailed

plans for state-run health insurance exchanges, if they decided

by Friday, Nov. 16 to go that route.

Even if Tomblin’s office changed direction and decided to

establish a state-operated insurance program, West Virginia

likely wouldn’t have time to develop a comprehensive blueprint

for the exchange in 30 days because the project’s preliminary

planning stalled during the gubernatorial campaign.

“It’s my understanding we will not do a state-level exchange,” said

Perry Bryant, executive director of West Virginians for Affordable

Health Care, a group that meets regularly with Samples’ office.

Many larger states, including California and Colorado, plan to

run their own health exchanges, while states such as Missouri

and Kansas have decided to let the federal government handle

the program. Arkansas, Delaware and Illinois have already

announced plans to set up state-federal partnership exchanges.

President Obama has said health insurance exchanges will

establish a “one-stop shop” for consumers searching for

an affordable health-care plan. Individuals will be able to buy

health insurance, subsidized by the federal government, from

private insurance companies. The online exchanges will allow

consumers and businesses with up to 100 employees to

compare benefits and prices, starting in 2014.

Though he preferred a state-run program, Perdue said the statefederal

partnership was a step in the right direction for expanding

health coverage in West Virginia. The state has until Feb. 15 to

submit detailed plans about the partnership exchange to the

federal government.

“It’s always better to be driving the bus, rather than riding the

bus, but you’re still going to get to your destination safely,”

Perdue said. “In this case, we’re going to be the passengers.”

By Eric Eyre

Reprinted from the Charleston Gazette

The Charleston Gazette: November 15, 2012

page 2

A Publication of Independent Insurance Agents of WV

The Election’s

Impact on National

Insurance Issues

Barack Obama was re-elected president of the United States

in a close election that portends that current policies will be


This includes healthcare reform and implementation of the

Dodd-Frank financial services reform law.

“This was a status quo election,” says Eli Lehrer, president of

the Washington-based R Street Institute.

“The Senate will stay Democratic and the House Republican.

President Obama will stay in the White House,” Lehrer

notes. “Although the Democrats far-better-than-expected

performance in the Senate may indicate a small national move

to the left, this isn’t a real sea change.”

In one race, perhaps showing the insurance industry’s clout,

Sen. Jon Tester, D-Mont, was re-elected in a strongly red state,

Tester got strong industry support in winning re-election. As

a member of the Senate Banking Committee, Tester was an

aggressive supporter of the industry on key issues, such as a

long-term extension of the National Flood Insurance Program.

Meanwhile, Rep. Judy Biggert, R-Ill., was defeated for reelection,

a victim of redistricting. She headed the Subcommittee

on Insurance, Housing and Community Opportunity of the

House Financial Services Committee, and was expected to be

a big player on insurance issues. She shepherded the NFIP bill

through its tortuous, five-year path to a long-term extension.

The bill was finally enacted in July. It is unclear who will succeed

her as chair of the insurance subcommittee. Biggert was also

expected to be a key player on regulatory issues as well as in

gaining passage of A Terrorism Risk Insurance Act extension.

Joel Wood, senior vice president of congressional affairs of

the Council of Insurance Agents and Brokers, called Biggert’s

defeat, “extremely disappointing to the insurance industry.”

Lehrer says efforts to create a national catastrophe fund or

anything of the sort are not going anywhere in this Congress.

“Given that National Flood Insurance Program reform was one

of the few major issues where we saw bipartisan cooperation

in the last Congress, I believe that will continue.”

Regarding healthcare reform, Ethan Rome, executive director

of Health Care for America Now, says, “After two years of

raging debate about health care and the most expensive and

polarizing presidential election campaign in our nation’s history,

Obamacare won tonight – and it’s here to stay. The re-election

of President Obama seals the deal.”

However, a key question remains, whether, as rumored, the

administration moves to delay implementation of the exchange

system from Jan. 1, 2014 to perhaps Jan. 2015.

(continued on page 9)

Note from


Gray Marion, CAE

IIAWV Chief Executive Officer


Finally! They’re over! The elections are finally over and

the 2012 election cycle has proven to be historic here

in the Mountain State.

The biggest story of the election is the electoral gains

made by the state’s Republican Party beginning with

the election of Patrick Morrisey as our next Attorney

General. Morrisey defeated longtime incumbent Darrel

McGraw to become the first Republican elected to the

post in eighty-four years. Morrisey finished ahead of

McGraw by a vote of 280,695 to 267,135 (51.24% -


Ranking right behind Morissey’s victory is that of

Allan Loughry. Loughry stunned the state’s political

pundits when he placed a strong second in a field of

four candidates seeking two Supreme Court seats.

Loughry finished less than one percentage point behind

incumbent Justice Robin Davis. Davis had 249,274

(27.03%) to Loughry’s 241,786 (26.22%).

The third great surprise came in the West Virginia House

of Delegates where the Republican Party picked up

eleven seats. The party split in the House of Delegates

in now 54 Democrats and 46 Republicans. This will

have immediate ramifications in terms of committee

assignments and the ability of Republicans to mount

more effective opposition on the floor of the House.

The most dramatic evidence of the Republican

legislative surge came in the 35th House District in

Kanawha County where Republicans took three of the

four seats in what had, prior to re-districting, been a

Democratic stronghold. In winning the three seats,

the Republicans also managed to defeat two longterm

Democratic officeholders who were generally

considered to be strongly anti-business.

All of the insurance agents in the legislature won reelection

to their seats, most without opposition. In

Kanawha County, IIAWV Member agent Chris Walters

won a seat in the Senate while his Father, IIAWV Past

President Ron Walters won re-election to his seat in the

House of Delegates.

Other elections of interest to agents include the 10th

Senate District in Mercer County where plaintiff attorney

and incumbent Senator Mark Wills was defeated by

auto dealer Bill Cole. Wills currently serves as Vice-

Chair of the Senate Banking and Insurance Committee

so, there will be a new person in that post next year.

(continued on page 10)

page 3

A Publication of Independent Insurance Agents of WV



Study reveals growth, stability and more attention to diversity in the

independent agency system.

The number of independent insurance agencies has increased,

newer agencies are growing and the system as a whole is

dynamic, according to the 2012 Agency Universe Study (AUS).

The 2010 study found an increase in the number of new small

and medium small agencies with minority principals and the

2012 numbers are generally comparable.

Future One, a collaboration of the Independent Insurance

Agents & Brokers of America (IIABA or the Big “I”) and leading

independent agency companies, has released key findings from

the recently completed, hailed as the most comprehensive look

at the independent agency system.

“The 2012 Agency Universe Study revealed much good news

for the independent agency system, including an increase in the

total estimated number of independent agencies and there are

patterns indicating that agencies are growing, adding further

proof that the system as a whole is dynamic,” says Robert

Rusbuldt, Big “I” president & CEO. “This is great news for the

independent agency system and reflects a stable and growing

distribution system that remained resilient during the recent

economy challenges.”

The study looks at many statistics about independent agencies

operating in the U.S. including their numbers, revenue base and

sources, number of employees, ownership, mix of business,

diversification of products, technology uses, non-insurance

income sources and marketing methods.

“As the Big ‘I’ continues to increase its diversity awareness efforts

,the 2012 Agency Universe Study found more progress toward

efforts to focus on marketing to a more diverse clientele and

developing a more diverse staff,” says Madelyn Flannagan, Big

“I” vice president of agent development, education and research.

“Approximately half of agencies report having developed plans

to meet the needs of emerging markets including women, ethnic

markets and the LGBT community.”

Other key findings of the 2012 Agency Universe Study include:

• The number of independent agencies has grown. After

declining from 44,000 in 1996 to 37,500 in 2006, the number

of independent agencies has grown to 38,500 in the past two


• Business conditions for independent agencies improved

between the 2010 and 2012 studies. In 2012, 60% reported

increased revenue, compared to 42% in the 2010 study.

• Systems and data security are now the most important

technology challenges facing agencies.

• Agencies are beginning to use the Internet more to obtain

new customers. About 25% use Facebook to keep in touch

with prospects, and 20% use LinkedIn.

The 2012 Agency Universe Study is the eleventh in a series that

was first conducted in 1983. Subsequent studies were released

in 1987, 1992, 1996 and 2000. Since 2002, the study has been

completed biennially. Since 2004, the Agency Universe Study

has relied on Internet data collection. Approximately 2500

agencies were included in the 2012 analysis.

To order a copy of the 2012 Agency Universe Study Management

Summary, which provides an overview of the highlights from the

complete study, click HERE or visit www.independentagent.


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West Virginia



page 4

A Publication of Independent Insurance Agents of WV

Georgetown University Names Rockefeller

Aide for Exchange Research

Senator Jay Rockefeller’s top health policy aide, Sarah Dash, is

leaving for Georgetown University to research health insurance


Ms. Dash will be a member of the research faculty at

Georgetown University’s Health Policy Institute, where she will

lead a comprehensive review of state health insurance exchange

implementation and its impact on access to affordable, highquality

health care. Prior to joining the Institute faculty, Ms.

Dash spent four years on Capitol Hill as a senior health policy

aide to Senator Jay Rockefeller (D-WV) and Congresswoman

Rosa DeLauro (D-CT) during the development, passage, and

early implementation of the Affordable Care Act. There, she

advanced health insurance transparency legislation along with

other consumer protections in private health insurance markets

as well as numerous women’s health measures, and covered

Medicare, Medicaid, CHIP, delivery system reform, substance

abuse and public health issues.

Ms. Dash served as senior health policy advisor to Governor

Bill Richardson’s Presidential campaign, where she developed

the candidate’s health care platform, and led the health policy

consulting practice at Public Works LLC, which advises state

and local governments on best practices and cross-cutting

policy innovations. Earlier, Ms. Dash spent three years as a

fellow and analyst for the Consumer Advocates in Research and

Related Activities program and Applied Research Program at the

National Cancer Institute, where she managed research projects

related to population risk factor monitoring, cancer outcomes,

and health services and economics. She began her career as

a public interest legal assistant at Lansner & Kubitschek in New

York City. Ms. Dash earned a Master’s in Public Health from Yale

University and a Bachelor of Science from MIT.

Independent Insurance Agents

of West Virginia, Inc.

page 5

A Publication of Independent Insurance Agents of WV

West Virginia Tops State Farm’s Deer-Vehicle

Crash List

State Farm says West Virginia continues to be the state where a

vehicle is most likely to hit a deer.

The Mountain State tops State Farm’s annual list for the sixth

consecutive year. The Bloomington, Ill.-based insurer recently

released its latest.

State Farm says the odds of a deer-vehicle collision over the

next year are 1 in 40 in West Virginia.

Virginia to Start Licensing, Regulating

Public Adjusters in 2013

Virginia regulators announced that beginning January 1, 2013,

all individuals and business entities doing business in the state

as a public adjuster must be licensed by the State Corporation


Virginia will now become the 45th state to license public

adjusters. Regulators said that as a result of the new law, public

adjusters will be required to comply with standards of conduct

and continuing education requirements, and their fees must be

fair and reasonable in relation to the work performed. The State

Corporation Commission may suspend or revoke licenses under

certain conditions.

The State Corporation Commission’s insurance bureau reminds

Virginians that they are not required to hire a public adjuster.

However, the bureau offers the following tips if Virginia consumers

do consider hiring one:

• Beginning January 1, 2013, make sure the public adjuster is

licensed by the insurance bureau. Consumers can call the

bureau toll-free at 1-877-310-6560 to verify this.

• Before signing a public adjuster contract, consumers may

want to familiarize themselves with the requirements governing

public adjuster contracts as well as the standards of conduct

applicable to public adjusters. This information may be found

on the insurance bureau’s website.

Virginia is ranked 10th with odds of 1 in 103.

Hawaii motorists are least likely to hit a deer with their vehicles.

Hawaii’s odds are 1 in 6,801.

State Farm says client data show 1.23 million collisions

nationwide between deer and vehicles between July 1, 2011,

and June 30 1, 2012. That’s up 7.7 percent from the previous

one-year period.

• Carefully read any contract given and do not sign it unless the

consumer understands and agrees to all the terms including

fees and payment terms.

• Ask the public adjuster for references and contact them for

their opinion of the work before signing a contract. This is

particularly important when dealing with non-resident public

adjusters who may come to Virginia to handle claims following

a disaster.

• Check with the Better Business Bureau and the insurance

bureau to see if there are any complaints against the public


• Find out how experienced the public adjuster is.

• Notify the insurance company when contracting with a public

adjuster and give them the name of the person who will

be authorized to work with the insurance company on the

consumer’s behalf.

• Meet with more than one public adjuster before making a

decision. Check references and the public adjuster’s license

status before signing a contract.

page 6

A Publication of Independent Insurance Agents of WV

page 7

A Publication of Independent Insurance Agents of WV

North Carolina Re-Elects Goodwin as

Insurance Commissioner

North Carolina’s incumbent insurance

commissioner, Democrat Wayne Goodwin,

beat back a challenge by Republican Mike

Causey of Greensboro to keep his job.

his insurance background as a reason for voters to select

him. But Goodwin argued that the state is better off with a

commissioner who is not tied to anyone in the industry regulated

by the Department of Insurance.

Goodwin won 51.8 percent of the 4.3

million votes cast in the contest; Causey

garnered 48.1 percent.

Causey, a former insurance agent, touted

This is Causey’s fourth try for the post. He also lost in 1992,

1996 and 2000 to the long-time incumbent Democratic

Commissioner Jim Long.

Goodwin was elected to the job in 2008 when Long retired.

Travelers Will Continue to Seek Improved

Pricing: CEO Fishman

The Travelers Companies Inc. said its

Business Insurance segment pricing

continued to rise in the third quarter

— led by workers’ compensation and

commercial auto. Rates also continued to

climb in the Personal Lines segment.

CEO Jay Fishman commented during

a recent earnings conference call that

he continues to assume the “operating

environment has changed.”

“It was about 9 percentage points in commercial auto and

comp was around 10, so those were at the top end of the

spectrum,” MacLean remarked during the conference call. “It’s

been consistent with what we have shown in the past. We have

talked about the bodily injury trends in the auto business, both

commercial and personal. So that’s one of the reasons why

we’re getting these increases.”

“These increases in pricing — along with the growth in exposures

and audit premiums — helped to drive net written premiums up

5 percent year-over-year,” he noted.

“Notwithstanding the benign weather we saw in the third quarter,

Mother Nature seems to be increasingly unpredictable. And we

believe the low interest rate environment will continue to impact

our businesses for the foreseeable future,” CEO Fishman said.

“Therefore, we will continue to seek improved pricing and take

underwriting steps necessary to improve profits and produce

higher returns on capital. This remains business as usual for us.”

Travelers reported $864 million net profit for its third quarter, up

159 percent from the same period a year ago.

In the Business Insurance segment, the company said it had

renewal premium change, pure rate and retention all increasing

in the third quarter, according to Travelers President and Chief

Operating Officer Brian MacLean.

Renewal premium change (the estimated change in average

premium on policies that renew, including rate and exposure

changes) was 9.3 percent. Rate, 7.8 percent and retention was

above 81 percent, MacLean said.

The third-quarter Business Insurance segment rate increases

were “pretty broad based,” MacLean said. He said the range

across the lines is 6 percent to 10 percent — with workers’

compensation and commercial auto getting the most rate


As for rate increases for the fourth quarter, MacLean said

that while it’s too early to tell for sure, indications are similarly

encouraging. “The anecdotes right now feel pretty good,” he


Not a One-Size-Fits-All Strategy

MacLean said that rate increases are applied selectively —

with rates holding steady for the company’s best-performing

commercial accounts with long-term loss ratios of less than

60 percent, which make up the bulk of Travelers’ business.

“As we said many times, it’s not a one-size-fits-all strategy,”

he said. “Actual pricing and underwriting decisions are made

on an individual account basis and include many additional

dimensions beyond loss ratio.”

MacLean said that Travelers has been doing a “great job”

retaining its best accounts, while improving the profitability of

the average-performing tier and creating opportunities to get

higher rate increases on poor-performing accounts.

MacLean acknowledged that new business was somewhat

lower in the third quarter as it has been for the last several

quarters. “Over time, pricing on the new business we have

written has improved. Given our strategy to improve margins,

we are very comfortable with the volume trade-off,” he said.

(continued on page 12)

page 8

A Publication of Independent Insurance Agents of WV

The Election’s Impact on National Insurance Issues

(Continued from Page 3)

Beth Mantz-Steindecker, a health regulatory analyst at

Washington Analysis, is suggesting that implementation of the

exchanges may be pushed back because so few states are

prepared to implement the program.

says, “Any sort of TRIA reauthorization faces a real struggle and I

would doubt that the program will survive in its current form. That

said, the very nature of the terrorist threat means that something,

somewhere will probably continue to exist.”

Washington Analysis analyst Ira Loss also confirms that it is

unlikely that insurance agents will be able to win an exemption

from the Medical Loss Ratio, given the election results.

Such legislation has passed a House panel, but whether the

full House will decide to proceed with floor action in the face

of the Senate Democrats likely blocking such a bill is a very big


At the same time, the likelihood is that release of the report on

proposals to modernize regulation of the insurance system is

likely imminent. The report, mandated by the DFA and supposed

to have been released in January, has been kept in cold storage

by the Treasury Department out of concern it would generate

partisan attacks.

The election also ensures that the Financial Stability Oversight

Council will likely follow through on designating certain non-banks

such as insurers as systemically significant, perhaps as early as

early next month. The likely insurance company candidates are

American International Group, MetLife and Prudential Insurance.

It also means that consolidated regulation of insurance

companies which operate thrift holding companies will proceed.

Implementation will likely be delayed beyond Jan. 1, and

revisions in the proposed rules, which insurance companies

universally oppose, are likely. The Fed might even postpone

implementation until 2015; however, there ultimately will be

consolidated regulation of insurance companies by the Federal

Reserve Board, with or without congressional debate.

The election could have implications for the Terrorism Risk

Insurance Act as well, which expires Dec. 31, 2014. Lehrer

There will also be key changes on House committees, with Rep.

Jeb Hensarling, R-Texas, a strong supporter of the insurance

industry, likely taking over as chairman of the House Financial

Services Committee. The outgoing chairman is Rep. Spencer

Bachus, R-Ala. And, with the decision of Rep. Barney Frank,

D-Mass., not to run for re-election, he will likely be replaced as

ranking member by Rep. Maxine Waters, D-Calif.

In acknowledging his victory, President Obama strongly signaled

a renewed attempt to work across the congressional aisle with

Republicans. And, in his concession speech, Republican Mitt

Romney also dropped the stridency of the presidential campaign,

and implied he would not attempt to hinder the president in

carrying out government policies.

This could have implications for the “fiscal cliff” negotiations.

A key Republican senator was quoted before the election as

saying that if President Obama is re-elected, Republicans would

have to bend to give him some tax increases in order to fend off

a huge cut in defense spending.

“We might as well cut a deal,” Sen. James DeMint, R-S.C., said

of what would happen if Obama wins. “If Republicans want to

maintain the defense, we’re going to have to give tax increases

to Obama.”

“When Jim DeMint is suddenly open to revenues, you know

the tide is turning,” a grinning Sen. Charles Schumer, D-N.Y.,


By Arthur D. Postal

page 9

A Publication of Independent Insurance Agents of WV

NOte from the CEO

(Continued from Page 3)

All in all, this was a great election for the business community

in general and for the independent agent community as well.

Our thanks go to all of our members who contributed

to WAPAC. We were able to provide support to several

candidates who made good use of our funds and were

successful in their efforts. Our thanks also go to everyone in

the IIAWV who worked for a candidate and actually went to

the polls and voted.

for it. There are some very interesting times directly ahead of

us. Stay tuned!

Thanks for your support of the IIAWV.

Over the next couple of columns, I’ll be talking about next

year’s legislative session and what we need to do to be ready

The Next New Thing: Coverage Issues From

Fracking Claims

Claims Journal

Every few years it seems that there are predictions of a

new type of claim that threatens to engulf carriers. In the

1980s and 1990s it was environmental cleanup claims and

SuperFund, followed shortly by asbestos, the fear of Y2K

claims, MTBE and any number of other potential mass torts.

In most cases, these highly touted risks fail to become the

massive tidal wave projected by

commentators. Unfortunately,

some of these problems,

such as hazardous waste and

asbestos claims, did grow into

large numbers of claims that

continue to fill the courts with

liability and coverage litigation.

Over the last several months,

we have heard increasing

rumblings about the expected

flood of litigation created by the

energy industry’s increasing use

of “fracking” in the production

and recovery of oil and gas. While very few suits have been

filed at this point, and litigation is being much more talked

about than actually filed, this risk is one that should be

carefully considered by the insurance industry.

What Is Fracking?

Fracking is a technology developed by the energy industry

that allows energy producers to extract oil from places where

in the past it was either too expensive or too difficult to

otherwise retrieve.

In the fracking process water, chemicals and drilling materials

are forced into underground shale formations to break-up and

release hydrocarbons such as oil or gas. The process usually

entails drilling a vertical well to the top of a shale formation

and then the well bore is angled through the target formation

and the drilling continues horizontally. Using sophisticated

technology, millions of gallons of “frack fluid” are pumped

under high pressure to fracture the target reservoir and

release the encased oil and gas.

The purpose of fracking is to vastly increase the flow and

volume of oil and gas available from a geological formation. It

both enhances the production from current oil and gas wells,

as well as allows for the use of fewer wells.

Interestingly, while this process

has been used in one form or

another for many years, it has

only become a subject of public

discussion in recent years as

environmentalists and property

owners have raised concerns

that the energy companies’

use of this technology allegedly

contaminates groundwater and

causes other environmental

problems. This has encouraged

the plaintiffs’ bar to gear up for a

potential litigation onslaught.

Types of Claims Seen and Expected

While many drillers and insurance industry executives

suggest that the environmental claims are overblown and

that there is presently little evidence of substantial well water

pollution from fracking, lawsuits are being filed by plaintiffs

in numerous jurisdictions alleging pollution damage (such

as groundwater contamination) requiring remediation and

attempting to prevent future fracking activities because of

potential health and environmental concerns.

There has not been any major settlement or judgment to

date, however, this first wave of lawsuits is prompting carriers

to consider the type and scope of insurance claims that will

be made. For instance, the main concern in the current suits

(continued on page 14)

page 10

A Publication of Independent Insurance Agents of WV

I will not accept policy changes

from a third party.

I will not accept policy changes

from a third party.

I will not accept policy changes

from a third party.

I will not accept policy c




You carry professional liability insurance to protect you in the

event of a claim. But is your carrier helping you to prevent a

claim in the first place?

The Big “I” has dedicated significant resources to bringing the

best claims prevention information and strategies to your agency.

And while we wonʼt really make you write it out on a chalkboard,

we believe that the best way to protect your business is to help

you protect yourself.


page 11

A Publication of Independent Insurance Agents of WV

Travelers Will Continue to Seek Improved

Pricing: CEO Fishman

(Continued from Page 8)

Premium Increases in Personal Insurance

In the Personal Insurance segment, MacLean said Travelers

was especially pleased with the significant pricing gains the

company continues to achieve in both auto and home. Auto

renewal premium change was 8.7 percent during the third

quarter, up more than 3 points from the second quarter, he said.

Homeowners was up over 1 point to 12.4 percent.

In Homeowners, in addition to rate increases, Travelers is

also continuing to “aggressively pursue terms and conditions

changes that reduce risk and improve returns,” MacLean said.

The roll-out of these modifications is ongoing, but the progress

Will Regulatory Reform Trigger Doomsday

for Captives?

If you’re startled by this headline, you’re not alone. Until recently,

the words “reform” and “captive” were rarely used in the same

sentence. That’s because captive insurance companies have

long been immune to traditional insurance company regulation

because of their special characteristics.

Should captives be more heavily regulated? Many argue

that captive insurance companies deserve a special place in

regulatory regimes because they:

• Are specialist underwriters primarily limited to writing the risks

of their owners.

• Have limited investment assets compared to traditional


• Are often operated and managed by outsourced experts,

with fewer resources to devote to compliance.



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thus far is already substantial, he said, adding that in the past

year, Travelers made underwriting guideline changes and

increased deductibles in more than 40 states. “We feel good

about the progress, but we see the need to continue to push

these levers,” MacLean said.

Traditionally, Travelers has been successful in getting deductibles

in the coastal hurricane-exposed areas. What the company is

focusing on now, MacLean explained, is the inland tornado and

hail-exposed areas. The company is also taking steps to further

scrutinize the age and quality of the roofs and make them an

important underwriting point, he said.

• Use policy language related to owner concerns.

• Perform uniquely, not following typical insurance cycles.

• Are not subject to the law of large numbers like traditional


These are compelling arguments — especially for those who

understand that regulatory flexibility has been one of the primary

advantages to domiciling a captive insurance company offshore.

However, the formerly benign regulation of the captive segment

is about to change.

For the first time, captive owners and managers must

(continued on page 16)




Auto & Home



A Publication of Independent Insurance Agents of WV

Six Tips for Effectively Competing for


These days there seems to be more competition than ever,

in addition, the competition seems to be more creative and

relentless. Whether it’s the low-price ankle biters, or the large

companies with huge marketing budgets, our competitors

seem to be everywhere. That being said, we can still win and

keep more than our share of the business. No, it may not be

easy, but with the right approach it can be rather simple.

Don’t have a one-and-done approach: placing one phone call,

mailing one letter, or stopping by one time and hoping that’s

enough, it isn’t. People need to hear or see your name seven

to twelve times before you start to gain mindshare. Set up a

follow-up program where you reach out to people at least nine

times over a four to five week period. For those you didn’t reach,

give them six months off, then start the nine-step process again.

Six Ideas for Competing Effectively

1) Know your competitive advantage.

These days you have to build value and articulate what makes you

different. Emphasize the things that make you, your company,

and your product unique. How are these three better than what

the competition has? Also, emphasize the qualities of the one

thing your competition does not have: you! Demonstrate how

you deliver more, how you’re better, and how you’re different, in

a good way, from everyone else out there.

In addition, know your competition and their product as well

as you know your own company and product. Know how they

compete against you and how to defend yourself. The best way

to do this is to look at your company and product through the

competitor’s eyes with objectivity.

2) Sound differently than the competition.

You’ve probably been trained to do things just like everyone else

in your industry. As a result, you may sound almost exactly the

same as your competitors. It’s important to do things differently,

ask different questions, and have a different approach than the

competition. The best way to do this is to listen intently and

really focus on each customer’s specific needs, wants, and

desires. Show a strong concern and unique understanding of

the issues the prospect faces.

4) Out-service the competition.

Not only do you have to be willing to go the extra mile, you need

to be willing to go a mile or two beyond that. Always make sure

you give something extra, bend over backwards, and serve the

customer, not only better, but far better than anyone else.

Keep in mind that you not only compete with other companies

within your industry, you compete with every company your

customer comes into contact with. If you have voicemail, your

voicemail is compared to the voicemail of the phone company,

cable company, retail outlet, and everyone else who has

voicemail. Your customer service is compared with everyone

else’s customer service. Your objective is to stand out from

everyone that your customer or prospect interacts with.

If you are determined to go above and beyond, do more, work

more, and go much further than anyone else is willing to go,

you will stand out, you will be successful, and you will beat the

competition almost every time.

(continued on page 17)

3) Outwork the competition.

Make more phone calls, make more visits, network more often,

and simply contact more people, ideally lots more, than your

competition. The more people you talk to, the more business

you will do. While relationships are important, sales is still a

numbers game.

page 13

A Publication of Independent Insurance Agents of WV

The Next New Thing: Coverage Issues From Fracking Claims

(Continued from Page 10)

involves groundwater contamination. This litigation focuses

on who is liable for the cleanup and remediation costs of

polluted groundwater resources. Where the EPA or private

citizens have brought these suits alleging property damage

or bodily injuries related to hydraulic fracking activities, the

primary task for the plaintiff is to obtain a finding of liability

establishing a causal connection between the hydraulic

fracking and the alleged injury.

In such cases, the defendant’s commercial policies may be

implicated, such as those issued to the energy companies

employing the fracturing process. As with most liability

cases, the policies at issue usually present two different

sets of issues. First, though it may never be established that

the fracturing process led to the contamination, the issue

of the duty to defend under those liability policies is one of

significant impact to insurance carriers. As we know from the

widespread environmental cleanup cases of the last several

decades, defense costs in connection with these type of

lawsuits can easily run into the millions of dollars, and are

often greater than the actual indemnity risk. Consequently,

the initial issue, regardless of the risk of liability, will be the

duty to defend those suits. In most states, the issue will be

what the plaintiff has pled, instead of the actual facts on the

ground. In many cases, the carrier may be forced to defend

claims for which its insured will never held liable.

Many energy industry companies who were involved in

past environmental claims have purchased environmental

impairment coverage to specifically address these types of

concerns. Many of these policies have large retentions or

manuscripted language that will raise coverage concerns.

Other companies, however, will have general liability policies

which include various forms of the pollution exclusion that may

or may not apply depending upon the specific allegations in the

litigation. Depending upon the jurisdiction and sophistication

of the plaintiffs bringing these claims, the coverage issues

may be very complex and involve considerable expense to


Likewise, in many cases where a defense obligation may be

implicated under either environmental impairment or general

liability policies, the development of the litigation will likely

raise novel coverage concerns as facts and specific policy

provisions are identified as areas of controversy. As we learned

from the hazardous waste cleanup case law, each state and

jurisdiction will have its own take on the same language, thus

creating substantive differences in jurisdictions as to whether

defense and indemnity obligations are covered or uncovered,

even under the same facts. Therefore, both policyholders

and carriers need to carefully evaluate the specific language

in their policies as well as to prudently consider the type and

scope of policies to purchase where fracking processes are


Another potentially significant area is property insurance

claims by homeowners affected by fracking activities. In

addition to potential groundwater contamination leading to

bodily injury claims, some homeowners may suffer various

forms of subsidence or well water contamination.

Most homeowner insurance policies provide coverage for

the policyholder’s home and property structures for direct

physical loss or damage to the property during the policy

period. However, many of these policies exclude events such

as contamination of land or water serving residents, as well

as settling, cracking, shrinking or other types of harm that

may be alleged by homeowners near fracking sites.

While it may turn out that fracking does not lead to this type

of problem, it is a subject of current review by environmental

and consumer groups that may spur litigation bringing those

policies into play. This may become an area of significant

coverage litigation.

Mountain or Molehill?

The current number of lawsuits are rising, but no major

decisions have been handed down specifically related to

fracking claims. Further, due to the fact that fracking normally

takes place thousands of feet below the watertable, the

fracking fluids and wastewater that come up in the process

are usually contained and reprocessed so that those materials

do not usually migrate into streams or rivers or kill fish. So, it

may be that the number of viable claims related to fracking

may be very limited or even non-existent.

Nevertheless, given the current litigation climate and the fact

that plaintiffs’ attorneys are forming advocacy groups and

websites seeking regulatory relief, it is clear that the plaintiffs’

bar is primed for much broader litigation. With this litigation

heating up, the insurance industry should pay close attention

By Brian S. Martin

Martin is a partner in the Insurance Litigation and Coverage

Practice of the law firm of Thompson Coe Cousins & Irons


page 14

A Publication of Independent Insurance Agents of WV

Scan & Send!

Simplify your agency banking with

remote deposit from Insurbanc.

By Mary C. Grazen

The banking industry is striving to keep up

with technology and more importantly,

your expectations of a banking experience.

What is important to your agency? What

can be done to enhance your experience

and at the same time help increase the

efficiency of your agency?

ATMs revolutionized banking more than 25

years ago and today online banking is now

commonplace. These innovations give

customers convenient access to their

money any time they need it. And, now a

new banking product, remote deposit, is

being utilized to greatly improve business

efficiencies, particularly for busy

independent agents.

Remote deposit enables businesses to

electronically submit checks for deposit

without leaving the office. The system is

web-based and therefore does not require

application software. It utilizes a small, high

performance scanner (should be provided

to you by the bank) and a PC with an

Internet connection. The scanner captures

images of both sides of the checks, analyzes

them for image quality and authenticity

and automatically balances deposits before

submission. Imagine logging into the

system, scanning your checks and then

processing them with the click of the

mouse button? Whether its 6 a.m. or

6 p.m. you can process check deposits by

logging on, scanning and hitting “send.”

Think about efficiencies you will gain by

eliminating trips to the bank - time, money,


As an independent agent, your time is

better served focusing on your clients and

increasing sales than compiling checks for

deposit and running to the bank. A bank

that offers you the latest technology, such

as remote deposit, is a bank that may

ultimately be a better fit for your agency’s


Remote deposit includes many security

features to safeguard your checks, verify

information and ensure accuracy. By

scanning and making deposits from your

office, it reduces risks associated with the

standard check process with more than one

person handling the check and the

potential to lose the check. It also provides

for quick returned-check notification. All

transactions are handled by a secure

website to ensure that data remains private

and unaltered.

In addition to the obvious convenience of

banking directly from your office, remote

deposit offers a variety of other benefits.

First, you’ll improve your cash flow by

having faster availability of funds and

secondly, you can use the remote system

on multiple accounts within your business.


Using remote deposit also greatly simplifies

reporting. It eliminates the need to make

check copies because it’s all right there

saved in the system. You can upload and

archive check images on your network and

then print a detailed report without any

hassle. The bottom line is remote deposit

takes the worry and hassle out of making

deposits, and whether you have a large

volume of premium checks coming in, or

simple day-to-day banking to do, this

product can greatly improve efficiencies at

your agency.

If the merits of a remote deposit system

sound intriguing, you’ll want to first ask

your bank if they offer it or plan to in the

near future. Secondly, find out if they will

provide the necessary technology and

hardware required to facilitate the process,

as well as an initial “how to” consultation.

You’ll also want to ask what the

management control features are, the

security functions and reporting


Mary C. Grazen is Chief Operation Officer for

InsurBanc. InsurBanc is an FDIC, federally

chartered savings bank serving independent

insurance agents, brokers and their clients. For

more information, including a remote deposit

demonstration, visit www.insurbanc.com or

contact them at 1-866-467-2262. Member FDIC,

Equal Housing Lender.

page 15

A Publication of Independent Insurance Agents of WV

Will Regulatory Reform Trigger Doomsday for Captives?

(Continued from Page 12)

contemplate the likelihood that regulatory flexibility may be

sharply curtailed by regulations put into place in the wake of

the most recent financial crisis. For the first time, traditional

insurance and captive regulation are converging.

nor seek equivalence. The United States, with separate state

jurisdictions and limited federal regulation of insurance, will

have significant political and practical problems complying with

Solvency II — essentially seen as a “continental regulatory issue.”

While it can be argued that regulations spawned by Sarbanes-

Oxley and FINRA have had little effect on the captive market,

that line of reasoning ignores three unintended consequences of

these legislative efforts:

• The cost of compliance has caused financial officers to

critically evaluate captive effectiveness in detail.

• The general desire to achieve greater capital efficiency

has caused senior management to drill down into areas of

operations previously ignored. Many existing captives will not

fare well when exposed to intense management scrutiny.

• In anticipation of possible captive exits, there is already a

substantial amount of insurance company surplus earmarked

for potential captive runoff.

And the United States legislative acts pale in significance when

compared to Solvency II, the European Union effort to regulate

insurers. Solvency II is intended to reform insurance regulation,

provide a safety net for policyholders and support market stability.

It is scheduled to take effect June 2013, with full implementation

by January 2014. Solvency II will place increased demands for

compliance on the entire insurance industry, including captives.

It is a risk-based regulatory effort with a high-level focus on the

scale and complexity of risks. As such, it is driven more by risk

management than by modeling.

While Solvency II pertains to European Union members only,

several major offshore captive domiciles have made significant

progress toward obtaining equivalence under the proposed

Solvency II regulations, Bermuda being the most notable. Such

certification means that the EU regulators agree to accept the

non-EU applicants’ regulations as acceptable under Solvency II,

or “equivalent.” Just as important, several competing (offshore)

domiciles, presumably seeking competitive advantage, have

announced that they will neither comply with the requirements

In Every Challenge Lies Opportunity

There’s no question that Solvency II will present both a challenge

and an opportunity for United States captive regulators. Naturally,

the opportunity will come in the form of offshore captives fleeing

domiciles that choose to meet Solvency II equivalence tests for

captive insurers. This quasi-forced re-domestication will present

a new and fresh pool of applicants for licensing by new and

mature U.S. domiciles. Just as with any significant change in a

regulated environment, challenges will accompany opportunities.

For example:

• If re-domestication occurs from a Solvency II-affected

domicile, what will be the attitude of the regulator toward the

captive, the fronting carrier and the reinsurer(s)?

• Is there a likelihood that only captives with compliance issues

will re-domicile, and if so, what safeguards need to be in place

to ensure that the state’s captive insurance department is

not simply licensing companies that are likely to incur future


• Should the captive licensing and regulatory capital

requirements of companies seeking re-domestication be

considered in a different light than new applications?

Even though captive formations have slowed in recent years due

to the soft insurance market, that trend is likely to reverse as the

economy recovers and the market hardens. When alternative risk

management becomes popular again, new captive formations

and re- domiciliation requests could swamp the existing captive

insurance divisions of state regulatory departments. If this

occurs, which class of new applicants will take precedence —

those with a performance history returning to the U.S. to avoid

Solvency II or new captive formations? These are questions that

each regulator and state insurance department must consider.

(continued on page 17)

Visit us online!



page 10 16

A Publication of Independent Insurance Agents of WV

Six Tips for Effectively Competing for Business

(Continued from Page 13)

5) Out-relationship the competition.

Once you get an account, make sure you keep it away from

the competition. 97% of people do business with a particular

company because they like and trust someone at that company.

If people like and trust you and you treat them right, rarely will

they ever jump ship, and if they ever do think about jumping

ship, they will call you first.

Your goal is to have solid personal relationships with your

customers. In the best case scenario, your customers will be

your friends. Friends continue to do business with friends,

and they send referrals too. Communicate often. Send cards,

gifts, and other items and let the customer know you care and

appreciate them. Get and share personal information to increase

the depth of the relationship.

6) If you’re not number one, make sure you’re number two.

If someone is doing business with the competition, you want to

make sure that you get the call if the competition ever makes a

fatal mistake. If you are number three or four, you are a long way

from any business with that person or company however, if you

are number two, you are one rate increase, one bad customer

service experience, or one of any other mistakes away from

some potential business. Keep your name in front of them so

you’re fresh in the prospect’s mind when number one eventually

trips up, the nine-step process works well here.

Finally, do everything you can from a fair, legal, and ethical

standpoint to win when you’re competing. You need to go to

bed at night feeling good about yourself, knowing you gave it

your best shot possible, and you did everything you could do to

win fair and square.

By: John Chapin

Editor’s NotE

If you would like access to John’s free monthly

newsletter and a white paper on what it takes to be

successful in sales, you can visit John’s website by

clicking HERE. If you have a sales question, you can

e-mail John at johnchapin@completeselling.com

John Chapin’s specialty is helping salespeople and

sales teams double sales in 12 months. He is an awardwinning

sales speaker, trainer and coach, a number one

sales rep in three industries, and the primary author of

the gold-medal winning “Sales Encyclopedia”. In his

24 years of sales, customer service and management

experience, he has thrived in some of the toughest

markets and economies.

Will Regulatory Reform Trigger Doomsday for Captives?

(Continued from Page 16)

Whatever regulatory methodology is eventually adopted, the

challenges ahead for all captives will hinge on whether regulations

are geared for captive complexity, the cost of compliance,

minimum solvency requirements and the methodology used

to meet regulatory approval. These are different and more

sophisticated issues than many captive leaders have dealt with

in the past.

Back to the Future

While the future is always difficult to predict, the results of new

regulations will likely be as follows:

• The cost of compliance will increase for domestic captives, as

well as those subject to Solvency II.

• Some captive insurance companies will be unable or unwilling

to access resources to pay for compliance.

• Formerly inattentive financial officers will apply a new, highlevel

focus to captive operations to meet capital efficiency

requirements and to contain reputational risk.

• Some offshore captives, especially those in Bermuda, may

look to re-domicile to the United States to avoid Solvency

II requirements. Others, especially high-performing captives,

may be delighted to remain in a domicile with high compliance


• There will be a significant runoff and/or sale of captive liabilities

as companies cease funding for marginal operations.

New Day, Not Doomsday

The current regulatory changes are so remarkable and profound

that the entire face of the captive risk transfer market may be

altered by the results of their implementation. For captives

around the globe, the next two years will represent a new day,

but not necessarily doomsday.

Smart captive leaders will proactively prepare now to position

their organizations for a brighter, albeit more regulated, future.

By Sidney Williams

Copyright 2012 Insurance Journal. This article is reprinted with


Sidney “Woody” Williams, CPCU is vice chairman of Strategic

Risk Solutions (SRS), a large, independent captive management

company that provides strategic advisory services. Website:

strategicrisks.com. Email: woody.williams@srsmail.com.

page 17

A Publication of Independent Insurance Agents of WV

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page 18

A Publication of Independent Insurance Agents of WV

Estate Plans: issue II

A Valuable Service to Your Clients and Your Agency

“The estate planning and insurance

professions operate with the same

goal in mind: planning for our clients’

future. Because of this shared goal, it is

important for both professions to have

a working understanding of the various

estate planning documents available to

best serve our clients’ needs.

Toward that understanding, I have

developed an eight part series of short

articles designed to highlight the common documents of an

estate plan. In addition to a discussion about the purpose and

format of these documents, I will also address the consequences

when one of those documents is missing from an estate plan.

In the course of this series, it is my hope that you will become

familiar with some of the reasons for the various estate planning

documents and how each may be beneficial to you and your


What happens when someone dies without a will?

When someone dies without a will, the estate passes by

“intestacy,” which means the state will decide to whom the

assets pass, who will administer the estate and who will take

care of minor children. Under intestate succession, heirs receive

shares of the estate per stirpes, which means there is one share

for each family line.

Example #1: Widowed Mom dies and is survived by 2

children, each with 2 kids of their own. Under the per stirpes

system, each of Mom’s children would receive one-half of

Mom’s estate, and the grandchildren would not receive

anything since their parents are still living.

Example #2: WidowedMom dies, but this time only 1 of her

2 children is living at the time of her death. In this scenario,

Mom’s living child takes 1/2, and each of the 2 other

grandchildren take 1/4 (1/2 of their mother’s 1/2).

While one who dies with a valid will gets to designate who will

administer their estate, one dying intestate does not have any

say in the matter. Following the death of an intestate individual,

the order of appointment for administrators is:

• For 30 days- Preference is given to surviving spouse and

other distributees.

• After 30 days- The field is broadened to include anyone,

including the decedent’s creditors.

• After 2 months- The sheriff may become administrator and

take five percent of the estate.

A court appointed administrator is required to post bond.

Typically, this bond is set at a minimum for an estate of $25,000,

with higher premiums required based upon the size of the estate.

(Next issue will discuss the importance of distinguishing between

probate and non-probate assets AND who may be named as

beneficiary under a will.)

Advertise in the

The West Virginia Insuror

Call us at

(304) 342-2440

Independent Insurance Agents

of West Virginia, Inc.

179 Summers Street, Suite 321 | Charleston, WV | 25301

Independent Insurance Agents

of West Virginia, Inc.

Mailing address:

P.O. Box 1226 | Charleston, WV | 25324

P: (304) 342-2440| TF: (800) 274-4298 | F: (304) 344-4492

page 19

A Publication of Independent Insurance Agents of WV

The mission of the Independent Insurance Agents of West Virginia is to

be the unrelenting advocate for independent insurance agents and to

fulfill member needs while serving the public’s best interest.

www.iiawv.org | (304) 342-2440

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