The Terrorism Risk Insurance Act (TRIA) is a United States federal law signed by President George W. Bush on November 26, 2002. The Act created a federal “backstop” for insurance claims related to acts of terrorism. The Act “provides for a transparent system of shared public and private compensation for insured losses resulting from acts of terrorism.” The Act was originally set to expire December 31, 2005, was extended for two years in December 2005, and was extended again on December 26, 2007. The current law, under the Terrorism Risk Insurance Program Reauthorization Act, is set to expire on December 31, 2014.
The potential for the TRIA expiration was seen as a potential catastrophe in the insurance marketplace by some workers’ compensation experts. They reasoned that the peculiar nature of workers’ compensation policies precluded insurance carriers from excluding catastrophic losses from their policies, and as a result the increase risk of a massive claim loss should there be a repeat of an act of terrorism similar to the September 11 event could pose an unacceptable risk. As a result, the expectation was that carriers would simply exit the market rather than underwrite the risk leaving employers in an insurance marketplace with no or extremely expensive carriers.
According to a report in Property Casualty 360, It seems that this disruptive lack-of-insurance scenario will not occur on January 1.
Congress failed to act on TRIA before adjourning for the year, meaning TRIA will expire at the end of the year. This was a big surprise, as most felt the House would be the reason for TRIA not getting extended. Last week the House passed a TRIA extension bill, but it was the Senate that ultimately failed to take up a vote on the issue. Why did this happen? Unfortunately, Congress has a habit of tacking unrelated riders onto bills with the hope of getting these issues passed. In this case, the House added amendments to NARAB II legislation, which has to do with licensing of insurance agents and brokers. Some in the Senate were not comfortable with those issues, which kept the Senate from approving the House bill on TRIA.
So what happens now with TRIA? The new Congress will reconvene on January 6, 2015, and the expectation is they will take up TRIA. However, given what just happened, you cannot assume the new Congress will pass a TRIA bill. And even if they do, a new bill may look substantially different than what was on the table.
What does this mean to the workers’ compensation industry? Back in February, carriers started issuing policies that contemplated coverage without the TRIA backstops. Employers saw some carriers pull back from certain geographic locations — most notably in New York City, particularly in Manhattan. They also saw some carriers change the terms of their policies and only bind coverage through the end of the year, giving themselves the flexibility to renegotiate terms or terminate coverage if TRIA did not renew. There were legitimate concerns that the workers’ comp marketplace in New York City would be in chaos by the fourth quarter of 2014 as brokers scrambled to place coverage beyond January 1, 2015. The New York State Insurance Fund was in the middle of these discussions, as they were faced with the prospect of having to provide coverage for employers if the private marketplace did not respond.
As the year progressed, something else happened. The marketplace responded. While some carriers pulled back in certain geographic locations, others stepped up to take their place. While some carriers tied their policy expiration to the expiration of TRIA, other carriers did not. Ultimately, employers were still able to obtain workers’ compensation coverage in the private marketplace.
What does this mean going forward? There may still be some policies out there that have endorsements allowing the carrier to cancel or renegotiate terms when TRIA expires, but this does not appear to be a widespread issue. Since workers’ compensation is statutory, and carriers cannot exclude for cause, there cannot be terrorism risk exclusions on a workers’ compensation policy. The carrier’s only choice is to provide coverage or decline the risk. While this may not hold true for other lines of coverage, the workers’ compensation marketplace has adapted to the absence of TRIA. Carriers are likely paying more attention to their geographic concentration of exposures, which means employers will have fewer choices, and may see higher pricing. But, at the end of the day, employers should be able to obtain workers’ compensation coverage without the TRIA backstop in place.