Managing the Risk and Business Insurance

“All that’s bright must fade – The brightest still the fleetest; All that’s sweet was made But to be lost when sweetest.” _ Thomas Moore

The advancement of technology, the multiplicity of activities and our growing interdependence make larger and larger disasters inevitable. Progress has put more people, more companies at risk than even before. Traffic multiplies on the roads, in the air and at sea. The disasters cause death or hardship for many more people and properties than those directly involved. The most sophisticated modern machinery can break down. Defective goods can cause injury. Mistakes do happen and accidents can kill or main employees and general public. Profits, customers and goodwill can be lost. No one is safe from thefts. No building is safe from Fire. No business is immune from one or the another risk………. CONCEPT OF RISK : Jawaharlal Nehru once wrote : “People avoid action often because they are afraid of the consequences for action means risk and danger.” He added that “while these results seems terrible from a distance, they are not so bad if one looks closely. And often risk is a pleasant companion, adding to the zest and delight of life. Most people, however, do not regard risk so kindly and seek to cope with it effectively. Risk is universal, present in all things, all lives, inherent in being. The concept of a person free from risk is as theoretical as the concept of perfection……….” RISK, DEFINED : Risk is objective uncertainty of financial loss that is to say anything that endangers present or future assets of a firm. William Lawrence  defined the Risk as “Risk is the compound estimate of the probable frequency, severity and public perception of harm.” Some common definitions are : (i) Possibility of loss or exposure to loss, (ii) Probability or chance of loss, (iii) Peril which may cause loss, (iv) Hazard, or condition which increases the likely frequency or severity of loss. (v) Property or person exposed to loss, (vi) Potential rupee amount of loss. (vii) Variations in actual losses. (viii) Probability that actual losses will vary from expected losses. (ix) Psychological uncertainty concerning loss. (x) Concise Oxford Dictionary: Risk, hazard, chance of bad consequences, loss etc., ; exposure to mischance (xi) Chamber’s English Dictionary: Risk: hazard, danger, chance of loss or injury, the degree of probability of loss, a Person, thing or factor likely to cause loss or danger (xii) ISO 31000 – standard prescribed by the International Organization for Standardization defines “Risk” as the effect of uncertainty on objectives, whether positive or negative. RISK AND BUSINESS : Identifying and Analyzing Los Exposures : Recognizing the numerous kinds of hazards that can lead to unexpected losses is not as simple as it may appear. Unless one has already experienced a loss, one may not even recognize certain loss exposures. If one has not experienced a fire, for example, he may not realize how much damage can be done by the water from the fire hoses or how much business may be lost during the time required to get things back to normal. Identifying and analyzing loss exposures involves examining a firm’s operations and repeatedly asking….

1. What can cause a loss here ? (Identifying an exposure), and
2. How serious might that loss be? (Analyzing the exposure).

To be logical and complete any procedure for identifying and analyzing loss exposures should taken into account the potential for property losses which may result into either…

1. Physical damage to property, or
2. Loss of use of property, or
3. Criminal Activity

Property Losses : Physical Damage : Property may be damaged by many common perils like fire, storm, hail, earthquake, subsidence, earth/rock movement, avalanche, snow, frost, volcanic eruption, flood, inundation, effects lightning, explosion/fires spreading from neighborhood/forest, bushfire, impact of vehicles/aircraft, sonic boom, smoke, arson, malicious damage, riots, theft, burglary, robbery and such other perils. Most firms buy insurance to protect against the losses caused by such perils. However, to cope effectively with a firm’s property loss exposures a business person must consider others perils which are less common. A complete analysis of potential losses must taken into account the indirect as well as the direct consequences. For example, a fire can not only destroy a building but result in a costly shutdown, lawsuit by injured customers or employees, or even an inequity which would put a key person out of action. Property Losses : Loss of Use of Property : A business can also lose the use of property without suffering physical damage. For example, a number of governmental agencies have the authority to close down a business in certain circumstances. A restaurant can be closed by a local board of health because of unsanitary conditions, a manufacturer can be closed for violations of occupational safety and health regulations. Property Losses : Criminal Activity : Almost every firm is exposed to loss by robbery, burglary and other crimes – and not just from outsiders. Of great concern to mean and women is the risk of “Cyber crimes “and  “white collar crime” to alarming levels. A  firm which operates with limited profit margins may be forced to close if one “trusted” employee is able to pocket part of every day’s sales. Even if this criminal is caught the money or merchandise illegally taken seldom is recovered. Business Interruption Loss : An important consideration for any business person is costly shut-down that can result from fire or other peril. Where such a shutdown – or business interruption – occurs the Management then has to deal with –

1. The loss of use of building (measured by the loss of revenue while the store is closed for repairs), and
2. Extra expenses to speed repairs or to rent space at another location in order to avoid closing.

These two business interruption possibilities – loss of revenue and extra expenses frequently are over looked. A firm’s operations also may be interrupted even though no physical damage has occurred to its facilities. This can happen when an important supplier or customer suffers a severe accidental loss. Consider, for example, the cause of a retailer who gets 50 per cent of revenue from the sale of high fashion jeans manufactured by one supplier. The retailer’s income will be severely affected if the jeans maker had a fire and could not ship inventory to the retailer for nine months. LIABILITY LOSS : A firm may be legally liable, that is, responsible to pay for bodily injury or property damages suffered by another person or firm. This liability may arise from :

1. A court decision (such as in a lawsuit charging negligence), or
2. Provision of a Statute (Such as Employee’s Compensation Law), or
3. A violation of a contract provisions (such as a contract that makes one party responsible for certain kinds of losses).

Liability to General Public : A Court may find a business firm liable for injuries or other losses, which the firm or its employees can cause to a member of general public, through negligence or other fault. For example, a customer trips on a broken step, or a user of the firm’s product is injured because of a def3ect in that product. Or the community as a whole is adversely affected by air or water pollution in violation of a statute protecting water and air quality. Liability to Employees : Employees can be injured or even contract disease as a result of job-related activities. To protect the interest of the employees  in India the Workmen’s Compensation  Act now changed as Employees Compensation Act, 2011 requires most employers to compensate employees to medical expenses and loss of income due to injuries or certain diseases arising from their employment. The family of an employee who dies as a result of job oriented accident or disease also collects a specified amount. Directors and Officers Liability : The Corporate decisions that yesterday did not materially affect other people today powerfully impinge on their lives and the subject matter has a direct bearing on the potential liabilities of Corporate Directors’ and Officers’ today. The increase in litigation against directors reflects a change in the attitude of the general public towards greater management accountability and hence the position of a Director is becoming far more onerous. Actions are most likely to be commended in relation to: (i) Actual or alleged breach of trust (ii) Breach of duty or warranty of authority (iii) Neglect or Omission (iv) Error or misstatement or misleading statement (v) Failure to supervise or regulate properly. Who might bring an Action? (i) Shareholders: alleging financial loss attributable to failure by Directors or Officers responsible (ii) Employees: alleging unfair dismissal, discrimination, sexual harassment or mismanagement of pension funds (iii) Customers: alleging that they have suffered financial loss following wrongful advice on the application or suitability of product (iv) Competitors: alleging that their businesses have been adversely affected by a restrictive trade practice e.g.: price fixing (v) Members of the Public: failure to effect and maintain adequate control or services. (vi) Regulatory Bodies: for offences under the Companies Ordinance or breaches in similar legislation. Potential Allegations: The following list provides typical examples of “wrongful acts” which could be alleged against a Director or Officer – though, this is not an exhaustive list: (i) Inaccurate statements of financial conditions (ii) Errors in annual accounts (iii) Conflict of interest (iv) Lack of judgment, diligence or good faith (v) Mismanagement of funds (vi) Misstatements in prospectuses (vii) Allotment of shares (viii) Unauthorized or imprudent loans or investments (ix) Failure to obtain competitive bids (x) Imprudent expansion resulting in a loss (xi) Using inside information (xii) Unwarranted dividend payment, salaries or compensation (xiii) Misleading statements filed with the Stock exchange (xiv) Misrepresentation in acquisition agreement for the purchase of another Company (xv) Wrongful dismissal of an employee. KEY-PERSON LOSSES : The most valuable asset of any organization is their people – especially those key persons whose skills, knowledge or special qualities are not easily replaced. Loss of the services of a key person – through death, disabling injury, disease or resignation can cause severe losses to the firm. Identifying and analyzing this key-person exposures requires distinguishing between persons who are key because they are :

1. Employees possessing special talents, and
2. Owners whose absence would threaten the firm’s survival.

The loss of the services of a key-person can result in major financial problems for a firm. The profits which he had been generating would be lost until a replacement could be found and trained to produce the same level. Further, the firm would have to incur extra expenses to find and recruit a replacement and to reassign duties temporarily among other employees until this replacement became fully productive. Indeed the loss of a key-person may even threaten the survival of the firm. The heirs or other successors of a key-person may not be able to contribute to the success of the business in the same way. POSSIBLE WAYS OF MEETING VARIOUS BUSINESS RISKS : Avoiding Loss Exposures : The first devise that strikes the mind immediately is to avoid those risks which are avoidable. The essence of risk avoidance is to refrain from undertaking or to abandon an extra hazardous project, thus, completely removing the possibility of loss arising from that project. A prudent business person avoids activities which are too hazardous, such as establishment of a store on the banks of a river which floods regularly, or selling a product which is likely to injure customers, or using delivery vans which have known mechanically defects. To fully prevent liability and personal loss arising out of the manufacture of a particular insecticide the firm would have to stop producing it. This would eliminate any possibility of liability claims arising out of future production or of the loss of service of personnel in producing future output. However, because future product liability claims can arise out of the use of the past output now already with dealers or customers’ shelves, complete risk avoidance of the product liability exposures would require recalling all the firm’s [past unused output. Because of this, as well as many other practical reasons, risk avoidance is not likely to be a real way of meeting risks. Preventing Loss Exposure : The second and most important way of meeting a risk is to prevent it. All loss prevention measures are efforts to reduce the probability or frequency of loss. As for example to prevent explosions during manufacture which may result in loss of and or bodily injury and property damage to residents of surrounding properties – careful control of the temperature of the manufacturing process is essential. The prevention of risks in agriculture means the reduction of uncertainties through improved technique and organization. Motor vehicle accidents can be prevented by an effective enforcement of traffic regulations both for drivers and pedestrians, by constantly improving design and maintenance of roads and like. However, notwithstanding the enormous advances made with regard to technical, organizational, social, economic and personal factors uncertainties affecting both property as well as persons still remain a factor to be reckoned with. Minimizing Loss Exposures : Since all losses cannot be avoided or prevented, efforts can at least be made to minimize or reduce the same. For example, fire alarms and automatic extinguishing systems do not keep fires from happening, but, they can help to hold the size of the loss. Also, a firm might minimize the potential for losses to its inventory as a result of fire, windstorm or such other perils by warehousing merchandise in several locations. In Marine Cargo chances of loss to the goods in transit and/or through non/short delivery could be reduced by adequate packing of goods, property marking of package with weight, dimensions, destination, handling instructions, by selecting reputable carriers i.e., couriers or transport operators and steamship companies for transportation of goods and by selecting the right clearing and forwarding agents who take proper care in forwarding the goods and clearing and taking promptly delivery of goods. RISK RETENTION : There are various reasons why a business may retain all or part of a risk. In some cases the owners or managers of a firm may decide that there are certain losses that the firm can afford to absorb. In other cases, a business may have experienced certain kind of losses so frequently that it is willing to absorb such losses if and when they occur. For example, a firm owns several delivery trucks. The drivers of these trucks have established an excellent safety records. Trucks are operated in rural areas with no traffic congestion and the value of the trucks has decreased because of their age. A business person may decide to avoid buying own damage insurance and absorb any losses caused by own damage to the trucks. Another example is if the goods in transit may suffer minor damage losses, the firm may not insure the risk but may decide to treat the losses normal operating expenses of the running of the business. In some cases the firm may decide to establish a reserve or fund to which periodic payments are credited and from which losses are paid as and when they occur. This technique is used also when the amount of such loss likely to occur is small and the occurrence for such losses can be closely estimated based on past experience. For example, medical expenses of employees for illness may be dealt with through this method. If 5,000 employees are involved and 500 employees of an average fall sick every year (as indicated by past experience) than a ‘self-insurance’ fund may be created to pay for all such medical expenses. The fund will consist of contributions credited to it by the firm from its own finances and may be a portion by way of employee’s contribution. A business person or firm must asses the financial impact of a possible loss and decide whether or not the firm can afford to absorb the loss without insurance. In some cases, it could be decided to retain a portion of a risk and insure the rest. Thus, the firm may chose to retain the first Rs.5,000 of any loss and insure all losses over that amount. Obviously, since the business firm is retaining a part of the risk, the premium charged by the insurer would be lower. RISK TRANSFER : Non Insurance Transfer : In the context of control non insurance transfer is a contractual relationship under which the transferring entity rids itself of all responsibility for possible losses arising from a a given exposure. For example, to cut down on property damage exposure to inventory a retailer may cut inventory to the minimum and reorder from suppliers often. This approach reduced the chance of a large loss to inventory and transfers to the suppliers much of the retailer’s exposure to loss of inventory. Similarly, a firm may chose to engage a delivery van service rather to own vehicle, thus, transferring the delivery firm the loss exposures associated with owning and maintaining vehicles. RISK TRANSFER : Insurance : Although, trying to protect himself against the chances of losses by adopting one or another methods as enumerated above or a combination of these, a sense of insecurity still invades a man in all stages of his life. He is eager to safeguard himself fully against situations which introduce uncertainty and insecurity in his life…….. And such a sense of uncertainty and insecurity could well be transferred to the shoulders of others through a process, known as insurance. Insurance is a term which means generally making oneself safe against something, but is specially used in connection with making financial provision against certain risks in the business or life. The essence of insurance lies in the elimination of the uncertain risk of loss for the individual through the combination of a large number of similarly exposed individuals who contribute to common fund premium payments sufficient to make good the loss caused to any one individual. BUSINESS INSURANCE : Fundamental Legal Principle of Insurance : In all kinds of insurance, the fundamental legal principle is that one man agrees to take the risk of another man’s life and business in consideration of certain small payments which are called premiums. The General Concept of Insurance : The simplest and most general concept of insurance is a provision made by a group of persons, each single in risk of some loss, the incidence of which cannot be foreseen, that when such loss occurs to any of these it shall be distributed over the whole group. Its essential elements, therefore, are foresight and cooperation. “Insurance”, says Fisher, “involves the offsetting of one risk by another; that is, the consolidation of a large number of chances whereby, relative certainty is, as it were, manufactured out of uncertainty.” It divides the risk over a large number of persons. The division of adversity decreases its intensity and division of happiness makes more people happy. Insurance is a quality of money. It blesseth one that gives and one that takes. “The aim of all insurance”, says Porter, “is to make provision against dangers which beset human life and dealings. Those who seek it endeavor to avert disaster from themselves by shifting possible losses on the shoulders of others, who are willing for pecuniary consideration to take the risk thereof.” Alfred Manes, a notable authority of insurance, defines the term as “The essence of insurance lies in the elimination of the uncertain risk of loss for the individuals through the combination of a large number of similar exposed individuals who each contribute to a common fund premium payments sufficient to make good the loss caused to any one individual.” The primary function of general insurance is, thus, the elimination of uncertain risks of loss for the individual. MANAGING THE BUSINESS INSURANCE Insurance of Property : Burglary Insurance : For loss of or damage to the property through theft or following forcible and violent entry into or exit from the premises. The business premises policy covers not only loss of the insured property, but also damages to such property and damage to the premises caused by burglars. Cash Insurance : For covering loss of cash whilst it is in transit or at counters or in the safe. The policy may be extended to cover infidelity of employees as also riot, strike and terrorism perils. Engineering Insurance : Insurance protection is available for construction, erection, commissioning, test run, operation, expansion etc of a plant, machinery or equipment. Provides coverage for own damage as well as to surrounding property, coverage for bodily injury to employees, to the third parties etc. Engineering Boiler Explosion Insurance is for steam generating vessels like boilers, economizers, super-heaters etc. Contractors’ All Risks Policy is designed to protect the civil contractors against the damage to or destruction of various civil engineering projects undertaken by them which includes accidental damage to civil construction works. Contractors Plant and Machinery insurance is for construction Plant and Machinery which are essential used at project sites. Machinery Breakdown Insurance cover is available to take care of the loss of or damage to plant and machinery due to accidental failure caused by electrical or mechanical breakdown. Deterioration of Stock insurance (Refrigeration Plant Insurance) is a follow up cover to Machinery Breakdown Insurance and cover deterioration of goods stored in cold storage which might arise due to a breakdown of refrigerating machinery. Engineering Electronic Equipments Insurance provides all risks protection for loss or damage to electronic equipments such as computers, telephone exchanges and equipments used in business, hospitals, audio-visual equipment. Fire Insurance : Fire connotes actual ignition under accidental or fortuitous circumstances so far as its coverage under the fire insurance is concerned. Spontaneous combustion, fermentation or heating or scorching without ignition is not a fire. A fire lighted for a definite purpose, say, for warming or manufacturing is not a fire as understood in the fire insurance parlance if it is confined within its own limits. If such fire breaks out of its bounds and ignites other property, then the loss is within the scope of “fire” insurance in view of both the elements ‘ignition’, and ‘accident’ being present. In other words, there is said to be a fire within the meaning of fire insurance when – (a) there is actual ignition, (b) the property is one which ought not to have been on fire, and (c) the fire is purely accidental or fortuitous in original, as far as the insured is concerned. Direct consequences of Fire covered under the scope of Fire Policy are (a) Damage during or immediately following a fire caused by (i) smoke (ii) scorching (iii) falling walls (b) damage caused by Fire Brigade in the discharge of their duties e.g., (i) Damage caused by water, and (ii) Damage caused by flowing up the property to prevent spreading of fire, and (c) Damage to property removed from a burning building caused by exposure to weather provided the removal was made in an endeavor to mitigate the loss. Standard Fire and Special Perils Policy (Material Damage) covers perils of fire excluding destruction or damage caused to the property insured by (a-i) its own fermentation, natural heating or spontaneous combustion (a-ii) its undergoing any heating or drying process and (b) burning of property insured by order of any Public Authority. Marine Insurance : The business of effecting contracts of insurance upon vessels of any description, including cargoes, freights and other interests which may be legally insured, in or relation to such vessels, cargoes and freights, goods, wares, merchandise and property of whatsoever description insured for any transit by land or water, or both, whether or not including warehouse risks or similar risks in addition to or as incidental to such transit and includes any other risks customarily included among the risks insured against in marine insurance policies. In common language the cover is available for exports, imports and inland transits of raw materials, plant, machinery and accessories and finished products, vessels and freight and such other interests. Motor Insurance : For covering the vehicles against theft, accidental damage and third party liability. Insurance of Liability : Directors and Officers Liability Insurance : The Directors and Officers of Companies may become liable to pay damages for wrongful acts such as failure of supervision of the affairs of the Company etc. Directors and Officers liability policy is therefore designed to provide protection to Directors and Officers of a Company against their personal liability for financial losses arising out of wrongful acts or omissions in their capacity as directors or officers. The coverage is granted in two parts under the insuring clause:

1. Company Reimbursement: Insurance of the Organization itself – Organization is entitled (and often obliged) by way of its articles of association to indemnify its Directors and Officers. The organization may only reimburse to the extent of legal costs expended and that only if the Director/Officer successfully defends that action.
2. Directors and Officers: (a) Insurance of the Director/ Officer – if the action against him is successful, then the Director/Officer is “on his own”. He is exposed to possible consequences viz., (a) Civil Action which may involve personal liability for: (i) Damages (ii) Claimant’s Costs (iii) Costs of Personal Legal Representation. (b) Criminal Action: prosecution may be brought under various Statutes. The organization will now of course be precluded from indemnifying him.(b) The second part of the cover (D&O) will now respond, provided that the Director/Officer has not acted in a deliberately dishonest manner. Whilst fines and penalties under Criminal Actions are not insurable, Directors and Officers may face substantial costs in arranging legal representation to defend such actions. These legal costs are covered by the D & O insurance provided the defense is successful.

Employer’s Liability : To take care of the legal liability of the Employer towards employees and workmen under Workmen’s Compensation Act now Employees Compensation Act, 2011. Product Liability : Covers legal liability of the manufacturer of a product towards a customer, whereby the later can legally claim the compensation for the damages caused while using an unsafe product manufactured by the former. Public Liability : For legal liability of the owner in respect of fatal/non-fatal injury caused to third party personal or damage to third party property arising out of accident for which the insured is held responsible under the law. Public Liability Insurance Act : Statutory liability caused by an accident in respect of fatal/non-fatal injury and property of third party under the Public Liability Insurance Act, 1991. Insurance of Persons : Group Mediclaim : To take care of the medical expenses necessitated due to the hospitalization and domiciliary hospitalization on account of accident/sickness/disease. Policy may be arranged for only existing employees or employees as well as their families. Policy may also be enhanced to cover retired employees as well as their families. Group Personal Accident : For providing compensation to the employees who meet with accident resulting in fatal or non-fatal injuries. Policy may be arranged for only existing employees or employees as well as their families. Policy may also be enhanced to cover retired employees as well as their families. Overseas Mediclaim : To take care of medical expenses incurred while employees visiting abroad on business or pleasure trip due to accident/sickness/disease necessitating treatment abroad. Insurance of Pecuniary Losses : Fidelity Guarantee : For losses caused to the employer due to infidelity of the employee who are responsible for dealing with cash or stores or such other valuables. Loss of Profits Insurance : To take care of the loss of profits (net profit) and standing charges incurred by the insured due to reduction in turnover. These policies are granted in conjunction with the material damage policies and are available following Fire, Machinery Breakdown, Electronic Equipment and Boiler Explosion. Advance Loss of Profit Insurance : When a major incident of damage to the works during construction phase (for a number of small instances) is likely to result in delay in the commencement of the commercial operation of the plant thereby delaying the ability to earn the revenue. Advance Loss of Profit connotes a form of Profit Insurance which, in principle, follows the characteristics of Consequential Loss Policy but is issued in advance of actual commencement of business. The financial consequences of this stoppage or interruption of any earning or manufacturing operation normally leads to delay of commissioning of a project under erection and may effect – (i) liquidity, (ii) profitability, and (iii) growth. Advance Loss of Profit cover offers protection in respect of fixed cost/standing charges, estimated net profit, loss and increased cost of working as a result of an insured peril occurring during the period of insurance, subject to the initial time exclusions in the policy. Guidelines for Policy Holders on issuance of Policy Documents:

1. Verify the policy documents issued by the insurers. Check whether the same covers all the properties and the perils which were intended to be insured.
2. Check the values declared for insurance. It may be on market value or on reinstatement value. In case of fixed assets, the policy can be extended to get indemnity on Reinstatement Value basis. The sum insured should represent the cost of reinstatement as on date of reinstatement.
3. Revise the values to offset inflation and exchange rate fluctuations.
4. Inform the insurers of any additions, alterations immediately and get the Policy suitably endorsed by paying additional premium, if required.
5. Maintain electrical installation and Fire Fighting Equipment in conformity with the regulations.
6. Take a note of renewal date and send renewal instructions to the insurers in advance with the premium to ensure continuous insurance protection.

Managing the Business Insurance Claims : Requirements in respect of Claims in any Business Insurance Policy: In all cases of occurrence of events which may result in loss or damage to the insured property and may result in a claim, the insured must :

1. Take steps to protect the property from further damage.
2. Inform about loss to the Policy Issuing Office over telephone, mobile, whatsApp, mail, fax giving details of the occurrence, estimate of loss and the Policy Number.
3. Write in detail about claim to the insurer as soon as possible (at the most within 14 days)
4. Submit duly completed claim form
5. Cooperate with the appointed Surveyor / Investigator for completing the survey/investigation and assessment of the loss.
6. Preserve the damaged items for survey
7. Give immediate notice to such parties who may have been responsible for happening of the loss or damage to the property in order to protect the recovery rights.
8. Give details of other insurances if any affected on the property and in force at the time of loss.
9. Quote Policy number in the initial communication and Claim number in subsequent communications.
10. Wherever any criminal action/death or bodily injury to any person is involved, Police authorities should be informed immediately.
11. In case of fire, Fire Brigade to be advised immediately
12. In case of Personal Accident immediate notice should be given to the insurer.
13. In case of Hospitalization immediate details of insurance policy to be provided to Hospital for obtaining cash-less facility.
14. In case of liability claim, no reply to be given in response to any notice without the prior written approval of the insurers.
15. In case of Act of God claim, obtain necessary Meteorological Report from local or nearest meteorological office.
16. In case of theft claim inform to Police Authority and obtain First Information Report as also court approved Final Report.

Regardless of organizations’ size and trade / business or industry category, all organizations share one thing in common – the realization that the complexity of the modern world demands responsible planning for the future.

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Author : Lajpat Ray Chandnani