A Tale of Two Markets

Are your D&O premiums about to soar? That depends on which industry you're in.

Even as they seek bailout dollars from Washington, financial-services firms shouldn’t expect any relief from their insurers. Premiums for directors’-and-officers’ (D&O) liability insurance are soaring, financial limits are contracting, and policy terms and conditions are tightening. The situation is so acute that the cost of D&O policies for some firms is nearing the actual coverage limits provided. Is 95 cents for a dollar of insurance really worth it?

Not all CFOs in the embattled sector confront the same woes, however. Jill Paterson, executive vice president and CFO of Fireman’s Fund Insurance Co., had it relatively easy. Allianz, parent company of Fireman’s Fund, was able to renew its D&O coverage with only a slight increase in premium and no change in terms and conditions. “Our experience was well below industry average,” says Paterson, chalking it up to Allianz’s conservative investment philosophy. “From an investment standpoint, we’re actually kind of boring,” she says.

Boring is good these days if a company is seeking decent treatment by D&O insurers at renewal time. More daring plays in subprime mortgages and credit default swaps have decimated investment portfolios, invited regulatory intrusions, and incited shareholder wrath. As share prices swoon for many banks, investment banks, and insurance companies (in some cases reaching zero, with many others watching to see how Washington’s actions will affect them in this regard), securities class-action lawsuits against their directors and officers are keeping lawyers busy. Of the 210 federal securities class actions filed last year, almost half (103) involved firms in the financial-services sector, according to Stanford Law School Securities Class Action Clearinghouse. “This level of litigation intensity against a single industry [financial services] is unprecedented,” says Joseph Grundfest, director of the clearinghouse.

The financial firms named as defendants in a securities class-action suit last year represented more than half the sector’s total market capitalization, with nearly a third of all large financial firms named as defendants. NERA Economic Consulting cites 110 securities class actions related to the credit crisis, an increase of almost 300 percent from 2007. So far, only three settlements in the subprime/credit crisis have been reached, two for less than $10 million and the other a $475 million tab absorbed by Merrill Lynch.

Given the volume of lawsuits and the possibility of other large settlements, insurers are skittish in the extreme, and not only regarding D&O coverage; errors and omissions, fiduciary liability, and employment-practices liability are also under scrutiny and are similarly tightening.

D&O insurance is now priced much higher for financial-services firms than for others.

Fortunately for industries outside of financial services, it’s a completely different story. D&O insurance premiums remain largely unchanged, with the same coverage terms, conditions, and limits. “From an insurance standpoint it’s an odd dynamic: two different D&O markets, one for financial institutions and one for everyone else,” says Dan Bailey, a partner at law firm Bailey Cavalieri, which specializes in D&O litigation. “One market is relatively flat, the other has been hit very hard, with prices more than doubling for many.”

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