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Resolving environmental insurance claims in the nextmillenniumDonald V. Jernberg aa The President of EClass, Inc. , ChicagoPublished online: 09 Jan 2009.

To cite this article: Donald V. Jernberg (1999) Resolving environmental insurance claims in the next millennium,Environmental Claims Journal, 11:4, 69-80, DOI: 10.1080/10406029909383935

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Resolving Environmental InsuranceClaims in the Next Millennium

DONALD V. JERNBERG

The insurance industry's exposure for environmental claims is esti-mated by rating agencies to have a current discounted value in therange of $40 to $50-billion dollars.1 Since the payout period isestimated to stretch out for approximately 30 more years, it isappropriate to reflect on how these liabilities will be resolved in thenext millennium. Those who would respond, "just like we have alwaysdone it" can skip the rest of this article.

For those who think that their personal career horizon in the area isonly another 10 or 15 years and are therefore unconcerned, it wouldbe useful to reflect on the speed at which change in American businessis occurring. Being out of step with how the resolution of environmen-tal claims will change may shorten careers. Conversely, those who areahead of the curve can expect to prosper.

I hope that this article will be thought provoking. The goal is to providea new perspective on certain fundamental realities relating to theresolution of environmental-insurance claims that will help theinvolved professionals consider how these claims will be resolved inthe next millennium.

A LEGAL OR A BUSINESS ISSUE?

Fifteen years ago, environmental-insurance claims representeda major legal undertaking. On both policyholders' and insur-ers' sides, the focus was on creating legal precedent that

would generate a business solution to the shared problem of thedraconian superfund liability exposure. After fifteen years of intensecoverage litigation between insurers and policyholders, the focusis now quickly shifting to creating business solutions, with legal

Donald V. Jernberg practiced as a lawyer in the environmental and related insurancearea for 20 years. He is now the President of EClass, Inc., in Chicago. EClass acts as aproactive neutral to find creative solutions to environmental issues and relatedinsurance claims.

Environmental Claims Joumal/Vol. 11, No. 4/Summer 1999 69

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precedent being only one element of the process. Resolving environ-mental-insurance coverage claims should be analyzed from a busi-ness perspective, not just a legal one.

This transition in emphasis from legal to business is fundamental tothe consideration of how environmental-insurance claims will be re-solved in the future. The change does not mean that legal issues or law-yers will be irrelevant to the process. Rather, the point is that throughoutthe history of environmental-insurance claims, legal issues and lawyerswere the driving and dominant force. In the years ahead, the predomi-nant issues will be business and financially oriented.

In considering how the transition from a legal-dominated processto a business-oriented one will shape the manner in which environ-mental claims will be resolved in the decades ahead, it is useful toconsider the claims resolution process in the context of some of thebasic trends in American business generally. How business is con-ducted has changed dramatically over the last decade, with an in-creasing rate of change on the horizon. By comparison, the processby which environmental claims are resolved has changed only mini-mally. Both policyholders and insurers are more efficient and tend tolitigate less, but these are modest changes. In the next millennium,one can expect more fundamental changes in how environmentalclaims are resolved.

BETTER INFORMATION COMMUNICATED MORE EFFICIENTLYClearly, a major emphasis in business is getting and communicat-

ing relevant information quickly and efficiently. Wal-Mart monitorssales and inventories of items continuously so that stores are ad-equately, but not over, stocked. The process of manufacturing a caris monitored so that parts arrive just in time, obviating the need forwarehousing and double handling. The result of these efficiencies islower costs.

Policyholders, insurers, and lawyers have all improved their in-ternal communication capabilities, as well as the process of commu-nicating between lawyer and client. However, the process ofcommunicating between opposing sides relating to settlements hasnot changed, save for the use of e-mail. Essentially, the critical infor-mation in resolving environmental claims is the settlement positionsof the parties. Whereas retailers and manufacturers monitor informa-tion critical to their operation continuously, the legal process doesnot monitor its critical information (settlement positions) continu-ously. Indeed, discussions on settlements are usually ad hoc andoften occur late in the process.

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It is recognized, of course, that settlement positions evolve overtime as facts are developed or legal rulings established. However,this merely explains why settlement positions of opposing partiesmay not match at the outset. It does not explain why the settlementpositions of the opposing parties are not monitored continuously inorder to identify a settlement potential when it first begins to materi-alize. We know that 95 percent of claims ultimately settle, but wesimply do not know how many could have been resolved earlier inthe process because we do not continuously monitor settlement op-portunities. As a just-in-time delivery system saves automobile manu-facturers double handling costs, identifying settlement opportunitieswhen they first develop can save all parties wasted transaction costs.

The traditional process of communicating regarding settlementsdoes not often provide an opportunity to truly monitor settlementpotential on a continuous basis. Even if the opposing parties commu-nicate regularly, the discussions involve advocating and posturing.Parties do not readily exchange their real or objective settlement po-sitions for fear that such disclosure will result in the settlement goalnever being achieved. Stated simply, if you want 500, demand1,000—and vice versa.

This aspect of the communication problem can be solved rathereasily. A neutral facility can be utilized by all parties to receive, on acontinuous and confidential basis, the objective but evolving settle-ment positions of the parties. Such a process may be foreign to law-yers trained as advocates but, as noted, the resolution ofenvironmental claims will become increasingly business oriented inthe next millennium. Businesspeople will not necessarily be commit-ted to the process for finding settlements through traditional negotia-tion protocols. To businesspeople, the legal and claim resolutionprocess is not sacred—it is slow, inefficient, and expensive. Adoptinga more efficient settlement communication process that ties to les-sons learned from retail and manufacturing will not be a difficult leapfor businesspeople.

Beyond simply not identifying settlement opportunities as earlyas possible, the traditional advocacy-based negotiating process maywell be a major contributor to the high transaction costs in settlingcases. A simple example can be used to demonstrate the point. As-sume that a policyholder wants about $500K to settle with one of itsinsurers and the insurer's analysis suggests that the claim is worthabout $400K. As discussed, experience suggests that neither side willcommunicate its true position through customary channels. If we as-sume each side alters its position by 50 percent, the policyholder

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would demand $750K and the insurer would offer $200K. Thesecommunicated numbers make it appear that the parties are farapart. The stated positions also serve as the justification for the trans-action costs incurred prior to the time settlement is achieved. Theresult is a flawed analysis because it is based on purposefullyinaccurate information.

In the business world, the focus is on using increasingly refinedand reliable data in making financial decisions. Justifying claim andlitigation costs based on intentionally distorted data runs directlycounter to the instincts and desires of businesspeople. The amountof distortion introduced into the settlement numbers also may b e setby parties w h o will benefit from high transaction costs, which arethen justified on the basis of the distortion. Businesspeople mightfind this difficult to accept, and can be expected to seek processes inthe coming years that will provide better controls over w h e n transac-tion costs are incurred and how they are justified.

To better understand the relationship between the posturing ofsettlement positions and transaction costs, w e will consider our hy-pothesis in more detail. Assume that each party projects spending$150K in transaction costs to get the case to trial. The costs will bespent over 5 years and can b e broadly categorized as follows:

Year 1: $25K on analytical activities (analysis of basic law andfacts);

Year 2: $25K on further analysis. At the end of Year 2, theparties evaluate their positions as $400K and $500Krespectively and the external positions of $200K and$750K are set forth.

Year 3: each party spends $50K addressing critical and par-tially dispositive issues. In our hypothetical w e as-sume each party had correctly analyzed h o w theseissues would be decided.

Years 4 the parties each spend $25K per year o n remainingand 5: issues, which are likely increasingly nuanced and

fact-specific (.see Figure 1).

In this scenario, both parties would clearly favor a settlement for$450K at Year 2 if they could identify the potential. This would savethe insurer $100K and benefit the policyholder by a like amount,while only the lawyers, consultants, and experts would be disadvan-taged. However, the case does not settle at Year 2 because the inter-nal positions are not known and the parties are basing their positions

72 Environmental Claims fournal/Vol. 11, No. 4/Summer 1999

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Figure 1. Case Settles at $45OK at End of Year 5

Insurer

litMOO

ive

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E3

o

600

500

400

300

200

100

0Year! Year2 Year3 Year4 Year5 Total

Policyholder300

Year! Year2 Year3 Year4 Year5 Total

on the external positions provided by the other side. If the insurerassumes at Year 2 that the policyholder's $750K settlement demandtranslates into a $600K settlement target and the policyholder as-sumes that the $200K offer means the insurer will pay $300K at Year2, the valuation models at the end of Year 2 would be as follows (seeFigure 2).

The parties conclude at the end of Year 2 that the expenditure of$100K will enhance their position by $100K. At Year 2, the insurerhas spent $50K and, if it settles for $600K, its total cost will be $650K.However, if it spends $100K and settles at its valuation of $400K, itwill pay only $55OK in total. If the insurer's upper range of estimatedexposure is $500K at Year 2, spending the additional $100K in litiga-tion will still be viewed as justified since such a result will leave the

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Figure 2.

Insurer Assumes $600K Settlement Cost Year 2

800-

600ooa>^ 400JS

| 200u

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Yeari Year 2 Year 3

Assumed Cost to Settle

Policyholder Assumes $300KTop Insurer Settlement Cost Year 2

£ 250S 200m 150| 100« 50

i o3 -50

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Assumed Net Settlement

insurer no worse than it perceives itself to be when it assumes atYear 2 that the policyholder will require $600K to settle.

The policyholder's assessment at the end of Year 2 is a mirrorimage of the insurer's. In addition, at Year 2 each party will view thesettlement as disproportionately favorable to the other party basedon the assumptions that they are making. The insurer would per-ceive that the policyholder would net $55OK ($50K in costs and$600K in gross settlement) on a claim that the insurer values at$400K. The policyholder would reason that the insurer would payonly $350K ($300K settlement plus $50K cost) on a claim that ithad valued at $500K. This type of valuation of the other party's ben-efit occurs and further impedes the settlement when it is based on

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assumptions about what deliberately inaccurate numbers reallymean.

Obviously, settlement analysis does not fit the orderly model ofthe hypothesis. Valuations change. The internal positions of bothparties are not always close early in the process, and perhaps theynever will be. Parties consider ranges of risk and settlement ranges.However, the model does demonstrate why there are the two con-stants in resolving environmental claims, the first of which is thatwhile most claims ultimately settle, the transaction costs are almostuniversally recognized as being too high.

Second, the model demonstrates why, despite the acknowledgedhigh costs, the involved lawyers, consultants, and claims managerson both sides feel that they generally achieve good results that pro-vide a net benefit. That conclusion is based upon the assumptions inFigure 2, wherein both sides conclude that expending another $100Kin costs will likely generate a net benefit. In fact, in the hypothesis,each party was disadvantaged by $100K by not settling at the conclu-sion of the basic analytical work completed in Year 2. They eachsimply draw inaccurate conclusions because they are working withimperfect data. This is an inherent problem with traditional advo-cacy-based settlement processes, and a reason for the high cost of re-solving environmental claims.

The model also suggests that the more the parties overstate theirpositions as part of the negotiating process, the higher the transac-tion costs that can be rationalized. As parties look to reduce costs,they will need to be able to better assess the cost-benefit ratio of fu-ture costs. This will require a communication protocol as part of thesettlement process that does not rely almost exclusively on distortedpositions as the basis for making decisions and negotiating the claim.Again, the neutral facility, which continuously receives and analyzesthe confidential position of parties, can provide the necessary chan-nels of communication.

Our hypothesis compared just one policyholder and one insurer.In environmental claims, a policyholder often will have claimsagainst multiple insurers. This compounds the problem caused byintentionally distorted settlement positions and inefficient channelsfor communicating on settlements. It is one reason that environmen-tal-insurance claims, in particular, require an innovative and im-proved process for finding settlements early and efficiently. Further,the overall size of the remaining liability and associated transactioncosts in environmental-insurance claims mandate a need to improvethe process for generating settlements. An improvement in efficiency

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which would reduce transaction costs by 10 percent could save in-surers and policyholders billions of dollars. Again, enhanced efficien-cies in monitoring key data have saved retailers and manufacturersbillions of dollars, and one can expect that in the next millenniumthose same lessons will be applied to the business of resolving envi-ronmental-insurance liabilities.

HOW CAN LAWYERS, EXPERTS, AND CONSULTANTS BENEFITFROM A MORE EFFICIENT CLAIM SETTLEMENT PROCESS?Obviously, reducing transaction costs reduces what lawyers, con-

sultants, and claims people will be paid in the aggregate, which willcause some of those parties to resist change. However, those willingand able to effectively adapt early to the new process can benefit.

First, by participating in a system that continuously and confiden-tially explores settlement options through a neutral facility, the law-yers and claims people receive some assurance that transaction costscannot be criticized. If settlement is not achievable at a given mo-ment, the transaction costs incurred to bring the case to the point ofsettlement are justifiable. Of course, to perform this function, theneutral facility through which settlements are explored must discour-age parties from merely continuing to use artificially distorted posi-tions in the system. That is to say, the facility must be able to providesome analysis and feedback that will lead parties toward more objec-tively reasonable positions.

Second, lawyers and claims professionals who willingly and ef-fectively adapt to a new process will be providing value to their cli-ents. They will be helping their clients reduce transaction costs, asenvironmental claims are run off. As the aggregate amount of trans-actional dollars shrinks, as it most certainly will, the professionalsproviding value to their clients will be those receiving the work thatremains.

INTELLECTUAL CAPITAL AS THE SOURCE OF VALUEIn today's information age, value is being created through the

application of intellectual capital. Intellectual capital is the ability tocreate new solutions or better approaches to business and commer-cial matters. The clearest example of how valuable intellectual capitalis in the information age is the market for technology stocks. Simi-larly, pharmaceutical companies are highly valued because of theability of ideas to create new solutions and the economic value thatthese innovations create. The accounting profession is currently

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focusing on how to determine and properly reflect the value of intel-lectual capital on a corporation's balance sheet. The current empha-sis on intellectual capital should not be dismissed as irrelevant to theprocess of resolving environmental-insurance claims.

At one level, environmental-insurance claims have always in-volved some intellectual undertakings. However, the focus has beenlargely on the legal arguments affecting coverage and liability. Whilemore legal theories can be crafted, this aspect of the process is quitemature. There is a huge body of case law, which establishes not onlyrules, but outlines most arguments and theories. As a result, the mar-ginal value gained from investing in these areas is often not great, aconclusion supported by the increasing trend toward finding settle-ments in environmental-insurance cases. Fewer cases are being tried.

In the next millennium, intellectual capital will be created byfinding techniques that help provide better solutions for given envi-ronmental-insurance claims. This will involve expanding the toolsused, broadening the context in which settlements occur, and inno-vating with respect to the processes employed. For example, it isnow possible to insure in a meaningful way the prospective risk andcosts associated with legacy environmental liabilities. In a recentmatter, the policyholder and its insurers were about $40MM apart intheir valuation of the ultimate cleanup exposure faced by the com-pany. Years of litigation and numerous experts did not solve theproblem; rather, insurance was used to cover the valuation differen-tial and the case settled. Intellectual capital was created.

State, federal, and local governments are seeking to find ways toreturn contaminated properties to productive use. Governmentbrownfield programs provide incentives, including more reasonablecleanup standards in order to reduce remediation costs. Integratingsuch programs into insurance settlements can provide value to bothpolicyholders and insurers. The means of integrating such programswith environmental-insurance settlements will constitute the type ofintellectual capital that will have value in the decade ahead. Thisability will have greater value than that involved in creating ever-more nuanced legal arguments to distinguish existing case law.

Fragmentation and interdependence with respect to environmen-tal-insurance liabilities are significant contributors to the high trans-action costs that have plagued the area. Fragmentation refers to thenumber of parties or segments into which the total liability is divided.For example, a policyholder may have environmental liabilities at 10sites in four states and be presenting coverage claims against eight

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carriers. How the policyholder and eight carriers share the liabilityover the matrix of sites, facts, and varying state laws is a fragmentedliability structure. Interdependence is used to refer to the fact that theability of any single party to settle is influenced to some degree bywhat other parties do. Finding better approaches for meeting thechallenges of interdependence and fragmentation represents anotherarea in which intellectual capital will be created in the next millen-nium. The buyers of services in the area will, like the current stockmarket, place the highest value on services that include this type ofintellectual capital. The process of creating legal arguments will beviewed more like manufacturing, and not be as highly valued.

There are, of course, other tools and ideas on how to create bet-ter, more valuable solutions for the insurance coverage claims. Un-doubtedly, some ideas have not yet been conceived. As a result,intellectual capital will be created through finding solutions, as op-posed to generating new (or rehashing old) issues in litigation. Thosewho create or share the intellectual capital in this area will derive thegreatest rewards in the years ahead.

PROFITS AND SHAREHOLDER VALUE

Improving the bottom line and increasing shareholder value arethe mantra of American business. Environmental liabilities can im-pact balance sheets and shareholder value for both policyholdersand insurers. For example, Standard & Poor's has suggested that in-surers need to reduce the amount spent on litigation in the environ-mental area from 39 percent to about 10 percent.2 Many traditionalcost-containment procedures have already been engaged and haveproduced the results that might be expected. To generate the type ofreduction suggested by Standard & Poor's will require new ap-proaches, not refining old ones.

With rating agencies focusing on the costs, those companies thatcan address the issue effectively can expect to be viewed more favor-ably by the agencies. The result can be increased shareholder value. Inthe continuing soft insurance market, enhancing shareholder value isvery difficult. Therefore, as we enter the next millennium, we can ex-pect increasing attention by upper management to the level of transac-tion costs in environmental claims. Combined with the fact that mosttraditional cost-cutting methods have run their course, this attention byupper management will drive innovation. Ultimately, resisting changewill be counterproductive and futile. Change will occur because it willbe a source of creating shareholder value.

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One example of potential innovation that one might expect tosee will be increasing efforts by insurers to transfer portfolios of envi-ronmental liabilities. The transfers could create some efficienciesthrough economies of scale, as well as reducing to some degree theimpact of fragmentation and interdependence. Such transfers arevery complex and difficult. However, in the next decades, we maysee increasing movement toward the transfer and consolidation of li-abilities. Certainly, insurers with small or midsized environmentalexposures may be tempted to clean up their books.

Environmental liabilities can likewise be a drag on the balancesheets and stock value of policyholders. There are tools, such as in-surance, which can be used to remove the liabilities from the corpo-rate balance sheet. In the next century, we can anticipate thatpolicyholders will increasingly attempt to integrate the settlement ofenvironmental-insurance claims with strategies that will removethose liabilities. In some circumstances, positive income on the cor-porate balance sheet can be created by settling claims under the rightstrategy. By removing environmental liabilities from its books, acompany can expect to create shareholder value that may be a mul-tiple of the size of the liability being removed. As the potential to cre-ate shareholder value by resolving environmental claims is betterunderstood and defined, greater emphasis will be placed on achiev-ing a claims-resolution strategy that produces that result.

Those involved in resolving environmental-insurance claims willneed to understand how the settlement may relate to broader corpo-rate strategies for creating shareholder value. Insurers and their rep-resentatives will need to understand the policyholder's perspectivesand goals. The ability to integrate insurance settlements into a strat-egy that creates collateral benefits for the policyholder will also ben-efit the insurers. The collateral benefits may induce the policyholderto accept a smaller settlement from the insurer, as well as create afavorable environment that facilitates getting an agreement morequickly and with reduced transaction costs.

The resolution of environmental-insurance claims will increas-ingly involve more than one insurer paying cash for a full release bythe policyholder. The run-off of these liabilities will be viewed froma more business-oriented perspective, and the settlement of claimswill become increasingly integrated into business strategies, rangingfrom balance-sheet improvements to complete portfolio transfers.Until now, lawyers and legal issues have dominated the mannerand approach to resolving environmental-insurance claims. As that

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orientation moves toward a business focus, it will be necessary, evenfor lawyers, to understand the business context in which the claimsresolution process may be viewed. I hope that this article will spark athought or two that may contribute to the intellectual capital whichwill be created in resolving environmental-insurance claims in thenext millennium.

NOTES1. See Alan M. Levin, "Environmental Liability and the Insurance Industry." Standard& Poor's Environmental Liability Report, March 13, 1996; and Peter B. Kellogg, et al."Not Out of the Woods: Lower Estimates Don't End Concern Over A&E Liabilities," A.M.Best Co. Special Report, Best's Review, October, 1997.

2. See Alan M. Levin, Id.

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