Title: Asbestos Issues and Trends
1Asbestos Issues and Trends
2003 CARE Meeting, PhiladelphiaJune 2, 2003
- Michael E. Angelina, ACAS, MAAA
- Jennifer L. Biggs, FCAS, MAAA
- Tillinghast Towers Perrin
2What is Asbestos?
- Naturally occurring fibrous mineral with a
crystalline structure containing long chains of
silicon and oxygen - Six types
- Miracle Mineral
- Protector of Human Life
- ironically thought to be the protector of people
- actinolite
- amosite
- anthophylite
- crocidolite
- tremolite
- chrysotile
- fire resistant
- separable into filaments
- abundant quantities
3Asbestos Usage
- Peaked in the early 1970s
- Contained in 3,500 products (1989 EPA study)
- Still legal in the U.S. today
- Ban on asbestos promulgated by the EPA in 1989
was remanded by the U.S. Fifth Circuit Court of
Appeals in 1991 - Only a few portions of the ban remained intact
new product uses rollboard flooring felt and
commercial, corrugated, and specialty paper - No effective warning label requirements
- Not tracked effectively
- Large manufacturers report annually to Toxic
Release Inventory - No requirements for small manufacturers
- Imports (especially building materials)
4Exposure and Disease
- Exposure
- Early epidemiological studies estimated 27
million workers experienced significant
occupational exposure to asbestos - Recent forecasts of the Manville Trust suggest an
exposed population in excess of 100 million - Ongoing exposure
- asbestos containing products
- asbestos in-place
- Typical American breathes 1 million fibers per
year via natural and man-made sources - Disease
- Documented and recognized as cause of disease
since 1920s - Pliny the Elder had noticed a significantly high
number of lung related sicknesses in servants
working with asbestos cloths and fibers - Pleural thickening, asbestosis, lung and other
cancers, mesothelioma - Long latency
5Why So Much Litigation?
- Large percentage of populationexposed
- Signature diseases
- Potential for large jury awards
- Economies of scale for plaintiffattorneys
- Insurance recoverables
6The Asbestos Litigation Environment Has Changed
- Increasing costs to defendants...
- Surge in claim filings
- Rescission of previous settlement agreements
between plaintiffs attorneys and defendants - Bankruptcies
- ...and increasing costs to insurers and
reinsurers - Increased costs for existing defendants
- Additional costs for new defendants
- Additional coverage accessed
7Claim Filings Appeared Fairly Stable in Early
1990s
(Thousands)
8CCR Claim Filings Increased After Georgines
Reversal
90.0
80.0
70.0
60.0
50.0
40.0
30.0
20.0
10.0
0.0
1991
1992
1993
1994
1995
1996
1997
1998
1999
2000
Avg CCR 1(91-95)
CCR 1
Avg CCR 2(91-95)
CCR 2
9Non-CCR Claim Filings Also Increased
10Surge in Personal Injury Claim Filings
- Causes
- catch up for CCR defendants post Georgine
- greater propensity to sue
- asbestos specialty firms, union hall screenings,
Sunday sports page advertisements, Internet,
doctors, new claims - acceleration of claim filings
- anticipation of tort reform bankruptcy creditor
lists statute of limitations - Effects
- Increased costs to all parties!!
- change in disease mix mitigates the increase
- continued ability to bundle claims will drive
costs
11Surge in Claim Filings
12Change in Disease Mix
13Increasing Numbers of Claimants Are Unimpaired
1982
4 of claims showed no manifest asbestos-related
injury(RAND)
1993
Up to one-half of all asbestos claims have little
or no physical impairment (Harvard Journal of
Legislation)
1998
No evidence of disease in 57 of asbestos
claims(Manville Trust)
74 of pending claims are unimpaired(confidential
report prepared for a defendant) Two-thirds of
claims show no evidence of impairment(Babcock
Wilcox) Vast majority of claims provide no
evidence of impairment(W.R. Grace)
2001
Source RAND
14Other Trends in Claim Filing Activities
Percent of filings in federal courts
Source RAND, January 2003
15Other Trends in Claim Filing Activities
and from some states to others
Source RAND, January 2003
16Observations Average Settlements by State
17Observations Disease Mix by State
18Observations Average Settlements by Disease
U.S.
19Individual Claim Costs Also Increased
- Mean verdicts to plaintiffs increased
dramatically from 1998 to 2001 (RAND) - Mesothelioma 2M to 6.5M
- Other cancer 1M to 2.5M
- Asbestosis 2.5M to 5M
- Damages paid by many individual defendants also
increased dramatically, reflecting - increase in plaintiff awards
- higher shares for remaining defendants
20Frictional Costs in the System are High
- According to RAND, transaction costs have
consumed more than half of total spending - And they are likely to go back up in next decade
100
Plaintiff Compensation
80
60
Percent
Plaintiff Expenses
40
20
Defense Expenses
0
1980s Litigation
1990s Litigation
21Bankruptcy of Defendants
- Currently at least 67 bankruptcies of companies
with asbestos-related problems according to
testimony prepared by the American Academy of
Actuaries (www.actuary.org) - Bankruptcy cited as legislative solution by
Babcock Wilcox - New bankruptcies may
- Increase costs for remaining defendants
- Several defendants cited higher settlement
demands as a cause of bankruptcy - Cause need for additional defendants
- Approximately 300 asbestos defendants in early
1980s - Estimates of 2,000 published a few years ago
- RAND estimates over 8,400 today
22Number of Asbestos Related Bankruptciesper Year
Note Excludes two bankruptcies for which no date
is available.
23Expansion of Defendant List
- Defendant list continues to expand since asbestos
was used historically in a wide variety of
products, including - yarn, thread, felt, rope packing, flame resistant
cloth - steam gaskets and packings, plain and corrugated
paper, rollboard, millboard, high temperature
insulation, movie props - World War II Ship Building
- molded brake linings, brake blocks, filler in
plastics, flooring, pottery, insulated wire, pipe
covering - brake shoes, clutch facings, cement, plaster,
stucco, shingles, siding, tile, sewer pipes,
blocks - corrugated roofing, roof sheathing, roofing
cement - boiler insulation insulation of walls, floors,
mattresses - paints, varnishes, filter fibers, filter pads
- According to RAND Study
- Firms in current list of defendants span 75 of 83
possible 2-digit SIC codes/industries - Over 60 of expenditures are now from
non-traditional defendants
24Costs through 2000 were substantial, but tell
only part of the story
- According to RAND, estimated total costs of
resolving asbestos claims through 2000 54 B - U.S. insurers 22 B
- Insurers outside U.S. 812 B
- Defendants 2024 B
- At least 5 major companies have each spent more
than 1 B on asbestos litigation
Source RAND, January 2003
25How to Quantify Asbestos Liabilities?
- Actuaries typically like to use past experience
to predict the future - However, for asbestos we cant use traditional
actuarial methods (e.g., accident year loss
development projections) - Long latency from exposure to disease
manifestation - Potential involvement of multiple policy periods
for individual claims
26How to Quantify Asbestos Liabilities?
- Many use benchmarks or rules of thumb
- Market share techniques
- For example, 5 of GL premium volume for affected
years translates to 5 share of ultimate
liabilities - Survival ratio techniques
- equals ratio of total reserves divided by average
annual payments - U.S. net asbestos survival ratio was 8.8
(excluding Fibreboard) as of 12/31/2001 - A.M. Best now using an undiscounted survival
ratio of 18 - 20. - Aggregate development
- multiples of paid losses, case reserves, or
reported losses - Comparisons to peer companies (e.g., significant
reserve additions)
27How to Quantify Asbestos Liabilities?
- Exposure-based modeling will improve
understanding of ultimate AE liabilities - For an insurer or reinsurer, it considers
- Mix of insureds
- Types of coverage
- Policy wording
- Attachment points and limits
- Years of coverage
- Claims handling and settlement activities
- Greater understanding equips the defendant,
insurer, or reinsurer to deal strategically with
its exposure
28Tillinghast Towers Perrin Estimates of Ultimate
Personal Injury Claim Costs
- Tillinghast estimates ultimate loss expense
relating to U.S. exposure will be 200 billion - Two approaches
29Estimation of Ultimate Loss and Expense Top Down
- Estimate total awards to plaintiffs 200 billion
- Estimate number of personal injury filings by
disease by calendar year - Estimate average indemnity by disease
- Trend to future years
- Multiply future filings by trended severities
- Load for expense
30Estimation of Ultimate Personal Injury Claim
Filings
31Estimation of Ultimate Loss and Expense
32Estimation of Ultimate Loss and Expense Bottom
Up
- Estimate total cost to defendants 200 billion
- Develop database of defendant experience
- Number of filings against defendants
- Average indemnity (defendants share)
- Expense-to-indemnity ratios
- Resulting distributions vary by tier
33Estimation of Ultimate Loss and Expense Bottom
Up
- Project future filings for each defendant
- implies 60 defendants per plaintiff case
- Project future severities by defendant
- implies average ultimate severities of 1,873 to
5,550 vary by tier. - Project future expenses (defense costs) by
defendant - Implies average ultimate expense loads of 20 to
116 vary by tier. - Reflects a reduction in expenses for Tier 3-Low
defendants over a five year period. - Ground-up ultimate loss and expense for each
defendant Filings x Trended Indemnity
Severities x (1 expense) - Allocate ground-up ultimate indemnity and expense
to year - Compare to average defendant coverage profiles
34Estimation of Ultimate Loss and Expense Bottom
Up
- Determine percentage insured, by defendant
- Allocate ground-up ultimate indemnity and expense
to year - Compare to average coverage profiles
- Expense treatment varies by policy
- Consider reinsurance cessions
35More Detailed Coverage Descriptionof Excess 1
Layer in 1980
Excess 2
Excess 110InsurerABC
Excess 120InsurerDEF
Excess 170InsurerGHI
Primary - Insurer JKL
36Comparison of Loss Allocated to 1980to Available
Coverage of Insurer ABC
- For example, if Insurer ABC wrote 10 of 5
million xs of 1 million in 1980, and ultimate
losses allocated to 1980 totaled - ? 1,000,000, then Insurer ABCs gross liability
would be 0 - 4,000,000, then Insurer ABCs gross liability
would be 300,000 ( 10 x (4,000,000
1,000,000)) - ? 6 million, then Insurer ABCs gross liability
would exhaust its limit of 500,000
37Coverage Expansion
- Roll-forward of coverage blocks
- Reclassification of products claims as
non-products claims by traditional products
defendants with installation activities with
exhausted (or nearly exhausted) products
coverages - reinstates previously exhausted products
coverages - opens up previously untapped non-products
coverages - non-products coverages may not have aggregate
limits
38Allocate Ultimate Loss and ExpenseAmong Multiple
Payers
39Portion of 200 billion Ultimate Loss and Expense
Retained, Net Insured U.S., Net Non-U.S.
60 billion mid-point of 55 65 billion range
of the Universe of net liabilities to the U.S.
P/C market. Additional details available in
Emphasis 2001/3, Sizing Up Asbestos Exposure, a
publication of Tillinghast Towers Perrin,
at www.towers.com.
40Paid and Reported Loss and Expense Compared to
Estimates of Net U.S. Ultimate Liability
41Recent Insurer Disclosures
- There were several sizeable reserve increases
during 2001-2002 - CNA 1 billion pre-tax per A.M. Best 750
million after tax (August 3, 2001) - ECRA 1 billion pre-tax estimated by A.M. Best
(February 2002) - The Hartford Reallocation of 540 million all
other run-off reserves to asbestos (July 2002) - Chubb 590 million by December 31, 2002
- St. Paul 987.5 million settlement with Western
MacArthur
42Recent Insurer Disclosures
- And the trend continues in 2003
- Travelers increased net asbestos reserves by
2.45 billion (January 14, 2003) - disclosed major results of the study
(policyholders with settlements, other
policyholders, assumed reinsurance, unallocated
IBNR) - ACE USA increased AE reserves (January 27, 2003)
- 2.18 billion gross
- 1.86 billion reinsurance recoverable
- 354 million after-tax charge
- Argonaut increased asbestos reserves by 52.8
million (March 2003) - The Hartford has announced an exposure-based
study to be completed later this year
43Recent Insurer Disclosures
- Some have made statements of adequacy
- CNA
- AIG
- Allstate
- Increased pressure on peer companies to make
similar disclosures
44Recent Increases in Recognized Liabilities
- And around the world
- Chester Street
- placed in provisional liquidation (January 2001)
- entered a Scheme of Arrangement(March 5, 2001)
- Equitas
- 1.5 billion as initially undisclosed portion of
total strengthening as of March 31, 2000 - 1.7 billion (2.4 million) as of March 31, 2001
(announced July 2001) - No change as of March 31, 2002 (announced July
2002) - Royal Sun Alliance 538 million for U.S. and
U.K. (February 2002) - U.S. pre-tax charge of 241 million estimated by
A.M. Best
45And the costs extend beyond personal injury
claims costs paid by defendants and their
insurers...
- The Impact of Asbestos Liabilities on Workers in
Bankrupt Firms by Joseph E. Stiglitz, Jonathan
M. Orszag, Detr R. Orszag December 2002 - Bankruptcies across the nation
- headquarters in 19 states
- facilities in 47 states
- Pre-bankruptcy, 200,000 workers employed by
bankrupt firms - Loss of 52,000 60,000 jobs with each displaced
worker losing an average of 25,000 50,000 in
wages - Average 25 reduction to their 401(K) account
(approx. 8,300 each) - Direct cost of bankruptcy 850M 1.7B
- NERA 2 Billion Secondary Impacts on the Economy
46Where Do We Go From Here?Recent Changes in
Claims Handling
- Asbestos claims handled differently than other
torts - volume/docket pressure
- bundling
- Center for Claims Resolution (CCR) changes its
procedures - abandons practice of routinely settling cases on
a group basis and requiring members to share
settlement costs (February 2001) - stops settling new asbestos claims for remaining
14 members effective August 1, 2001 in run-off - Equitas leads London insurers, requiring evidence
of injury and product identification effective
June 1, 2001
47The Coalition for Asbestos Justice
- Formed in 2000 as a nonprofit association to
address and improve the asbestos litigation
environment - Currently has eleven members Ace, Argonaut,
Chubb, CNA, Everest Re, Firemans Fund, General
Re, Great American, The Hartford, Liberty Mutual,
and St. Paul - Mission To encourage fair and prompt
compensation to deserving current and future
asbestos litigants by seeking to reduce or
eliminate the abuses and inequities that exist
under the current civil justice system - Coalition is not involved with insurance coverage
issues - Working to effect change through public education
(including the judiciary), amicus briefs, and
jurisdictional litigation efforts
48Public Education
- A primary mission of the Coalition is to foster a
better understanding of the current asbestos
litigation environment - Research and Studies (e.g., RAND Study update
(www.rand.org)) - Academic Scholarship
- Victor E. Schwartz Leah Lorber, A Letter to
the Nations Trial Judges How the Focus on
Efficiency Is Hurting You and Innocent Victims in
Asbestos Liability Cases 24 Am. J. Trial Advoc.
247 (2000) - Mark D. Plevin Paul Kalish, Where Are They
Now? A History of the Companies That Have Sought
Bankruptcy Protection Due to Asbestos Claims
Vol. 1, No. 1 Mealeys Asbestos Bankr. Rep., Aug.
2001 - This is NOT your fathers asbestos defendant
49Jurisdictional Litigation Efforts
- Identifying jurisdictions that pose the biggest
challenges for asbestos defendants and truly sick
claimants - Key states CA, IL, LA, MD, MA, MS, NJ, NY, PA,
TX, WV - Meeting with counsel from these states to
understand the current case management orders and
identifying other due process issues - Advancing inactive dockets / pleural registries
- Challenging consolidations and joinder rules
50Changes in the Wind?
- There are a few signs in the asbestos litigation
environment that business may not be as usual - A split in the asbestos plaintiffs bar between
those representing real cases versus those
representing the non-impaired - House of Delegates of the American Bar
Association (ABA) voted on February 11, 2003 - to support legislation that would establish
specific medical criteria that must be satisfied
by those alleging non-malignant asbestos-related
disease in order to file an asbestos lawsuit - proposal would also toll statute of limitations
until such time as the medical criteria were met - Judge Weiners ruling in the Federal MDL
dismissing all cases that were initiated through
mass screenings - Hearing held by Judges Weinstein and Lifland in
the Johns Manville bankruptcy proceeding
51Changes in the Wind?
- There are a few signs in the asbestos litigation
environment that business may not be as usual - West Virginia passes SB 213 limiting the ability
of non-resident plaintiffs to maintain causes of
action - Mississippi passes HB 19 limiting punitive
awards, reduces venue shopping, releases
innocent seller (January 2003) - Pennsylvania Asbestos Legislation (SB 216)
dealing with asbestos-related liabilities
acquired via merger or consolidation - Many more articles in the business press and from
investment analysts advocating the need for an
asbestos solution
52U.S. Supreme Court Actions
- Amchem v. Windsor
- Overturned Georgine/CCR Futures Deal (June 27,
1997) - Ortiz v. Fibreboard
- Overturned second global settlement attempt
(1999) - Mobil Corp. v. Adkins
- Refused to hear case regarding consolidation of
case involving 8,000 plaintiffs from 35 states
and 250 defendants in West Virginia - Exxon settled October 2002, leaving Union
Carbide/Dow Chemical Company as the sole
remaining defendant
53U.S. Supreme Court Actions
- Hopeman Brothers Inc. v. Clarence L. Acker Jr.,
et. al. - Denied petition to review mass consolidation of
cases in Virginia (December 9, 2002) - Norfolk Western Railway Co. v. Ayers, et.
al.(March 10, 2003) - Fear of developing cancer justifies a claim under
FELA - Joint several liability entire damages can be
recovered from the railroad - Six workers with asbestosis obtained 5.8 million
54Possible Federal Legislation
- The Fairness in Compensation Act (H.R. 1283/S758)
did not advance - would have established the Asbestos Resolution
Corp. - opposed by President Clinton and the plaintiffs
bar - Likely prospective proposals supported by the
Asbestos Alliance (led by the American Insurance
Association and the National Association of
Manufacturers) will focus legislation on four
areas - establishing objective medical criteria of
asbestos-related impairment - liberalizing statues of limitations
- eliminating consolidations
- eliminating forum shopping
55Possible Federal Legislation
- S413 Senator Nickles
- Cases remain in court system
- Establish medical criteria
- Toll applicable statutes of limitation until
medical criteria are met - Senate Hearings
- September 25, 2002 and March 5, 2003
- Discussion of medical criteria as well as an
asbestos trust fund - Senator Hatch has called for a compromise
solution by the end of March 2003
56Quotes from Clients and Colleagues
- The claims are continuing.
- We have more open accounts today then we did ten
years ago. Were seeing more claims against Main
Street America distributions, hardware, HVAC. - Claim filings have remained steady we expected
a decrease by now. - Asbestos is the energizer bunny of toxic torts
it keeps going and going and going... - We are seeing operations claims from new
defendants (contractors, distributors) - Weve been approached by producers seeking finite
cover. The cover might be a positive influence on
financial analyst opinions The defendants must
anticipate that filings will continue A small
number of deals are being done. - I expect to see at least five more bankruptcies
of asbestos defendants in the next 12 to 18
months. (This seemed to be a bold statement in
September 2000 little did we know what was to
come ) - endless search for a solvent bystander
- Asbestos litigation is a profit-driven
industry. - Dont think of them as lawyers, think of them as
venture capitalists. - factories (be they lawyers) generating paper
Heres the form, fill in the blanks wont end
by when I die, even when my kids die
57Current Status Recap
- Significant deterioration in liabilities at all
levels - Defendants, insurers, and reinsurers
- Generated by filing activities
- Mitigated by shift in disease mix to claims with
lower settlement values - Continue to see more bankruptcies or finite deals
- May see increased attention to what the
defendants are carrying on their balance sheets - Current focus has been from financial analysts,
not auditors - More scrutiny from insurance regulators
58Current Status Recap (contd)
- More than 25 years after peak usage, we still see
significant activity on the claims side - Its the Energizer Bunny of toxic torts
- It just keeps going and going and going ...
59Michael E. Angelina
- Mr. Angelina is a co-author of Tillinghasts
study regarding the asbestos universe, first
presented on May 30, 2001 to the RAA Education
Conference and the Casualty Actuaries of the
Mid-Atlantic Region (CAMAR). He is a consulting
actuary with Tillinghast Towers Perrin in its
Philadelphia office. He is a principal of the
firm. - Mr. Angelina is a member of Tillinghasts
asbestos and environmental practice area, and
currently coordinates research and development
activities relating to the contingent liabilities
of corporate asbestos defendants assisting
clients with asbestos-related operational
strategies. He has quantified reserve needs for
asbestos, pollution, and other health hazards
(APH) for both domestic and international
insurers and reinsurers. He has also written for
Emphasis on asbestos issues, and has participated
on various industry forums, trade press, and
meetings regarding asbestos liabilities. Mr.
Angelina is also active in the firms placement
initiative for these types of exposures. - Prior to rejoining Tillinghast in January 2000,
Mr. Angelina was Vice President and Actuary with
Reliance Reinsurance Corp. (RRC). He also served
as the Actuarial Officer of the Finite Risk unit.
His responsibilities in the financial actuarial
role included modeling outwards reinsurance
transactions, providing actuarial support and
guidance for areas which had problematic
implications to RRCs financial results, and
identifying new opportunities for growth. In the
Finite Risk unit, Mr. Angelinas responsibilities
included performing actuarial and underwriting
analyses of loss portfolio transfers developing
the financial structure of potential deals and
performing due diligence reviews of target books
of business. - Incorporating his 11 years at Tillinghast prior
to rejoining the firm, Mr. Angelina has been
involved in a number of client assignments
including ratemaking for personal automobile
business reserve reviews for insurers,
reinsurers, excess and surplus carriers, and self
insured entities valuations of insurance
operations in support of mergers and
acquisitions financial modeling quantification
of asbestos and pollution liabilities and the
development of pricing systems and size of loss
distributions for multinational excess insurance
coverages. He is a developer of RPIL,
Tillinghasts excess of loss pricing system, and
part of the Global Loss Distributions (GLD)
initiative. - Mr. Angelina is a frequent speaker at the
Casualty Actuarial Society seminars on pricing
and reserving for US and international exposures
and has written on risk financing costs for
Captive Insurance Company Reports, as well as
asbestos-related issues. Prior to joining
Tillinghast in 1988, Mr. Angelina worked for
CIGNA in the workers compensation and the
actuarial research units. - Mr. Angelina is an associate of the Casualty
Actuarial Society and a Member of the American
Academy ofActuaries. Mr. Angelina is a graduate
of Drexel University with a B.S. degree in
Mathematics. - mike.angelina_at_tillinghast.com(215) 656-2345
60Jennifer L. Biggs
- Ms. Biggs is a co-author of Tillinghasts study
regarding the asbestos universe, first
presented on May 30, 2001 to the RAA Education
Conference and the Casualty Actuaries of the
Mid-Atlantic Region (CAMAR). She is a consulting
actuary with Tillinghast Towers Perrin in its
St. Louis office. She is a principal of the firm. - Ms. Biggs is a member of Tillinghasts asbestos
and environmental practice area. She coordinates
research and development activities relating to
asbestos and has quantified reserve needs for
asbestos, pollution, and breast implant
liabilities for insurance and reinsurance
companies. Ms. Biggs has also been active in the
firms asbestos and environmental reinsurance
placement initiative. - Ms. Biggs has spoken at Annual Meetings of the
Casualty Actuaries in Reinsurance and the
Casualty Actuarial Society regarding asbestos
liabilities. Under her direction as Chairperson
of the American Academy of Actuaries Mass Tort
Work Group a Public Policy Monograph Overview of
Asbestos Issues and Trends was released in
December 2001. - Ms. Biggs also has significant experience in the
professional liability area. Her work includes
analyses of funding requirements, self-insured
retention limits, and allocation systems for
self-insured trust funds of several hospitals.
She also performs reserve evaluations, opining on
year-end statutory reserve levels for physician
insurers. Additionally, she has assisted insurers
by analyzing rate levels and preparing filing
materials for entry into new states. - Prior to relocating to Tillinghasts St. Louis
office in 1988, Ms. Biggs spent almost four years
in Tillinghasts Bermuda office. There she gained
considerable experience in financial reinsurance,
performing pricing analyses for loss portfolio
transfers. Most other assignments were related to
loss reserving for reinsurance and captive
insurance companies. - Ms. Biggs is a Fellow of the Casualty Actuarial
Society and a Member of the American Academy of
Actuaries. Ms. Biggs graduated with college
honors from Washington University in St. Louis
with a B.A. in mathematics and a business minor. - jenni.biggs_at_tillinghast.com(314) 719-5843