Asbestos Issues and Trends

1
Asbestos Issues and Trends
Casualty Loss Reserve SeminarSeptember 8, 2003

• Michael E. Angelina, ACAS, MAAA
• Tillinghast Towers Perrin

2
What 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

• flexible
• strong
• durable

• fire resistant
• separable into filaments
• abundant quantities

3
Asbestos 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)

4
Exposure 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

5
Why So Much Litigation?

• Large percentage of populationexposed
• Signature diseases
• Potential for large jury awards
• Economies of scale for plaintiffattorneys
• Insurance recoverables

6
Surge in Claim Filings
7
Change in Disease Mix
8
Increasing 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
9
Observations Average Settlements by State
10
Observations Disease Mix by State
11
Observations Average Settlements by Disease
U.S.
12
Bankruptcy 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

13
Number of Asbestos Related Bankruptciesper Year
Note Excludes two bankruptcies for which no date
is available.
14
Expansion 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

15
Costs 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
16
How 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

17
How 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)

18
How 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

19
Tillinghast 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

20
Estimation 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

21
Estimation of Ultimate Personal Injury Claim
Filings
22
Estimation of Ultimate Loss and Expense
23
Estimation 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

24
Estimation 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

25
Allocate Ultimate Loss and ExpenseAmong Multiple
Payers
26
Portion 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.
27
And 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

28
Where 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

29
The 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

30
Public 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

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Jurisdictional 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

32
Changes 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

33
Changes 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

34
U.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

35
U.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

36
Possible 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

37
Possible 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, June 2003
• Discussion of medical criteria as well as an
  asbestos trust fund
• Senator Hatch has called for a compromise
  solution
• S1125
• Asbestos Trust Fund

38
Senate Bill 1125

• Preliminary negotiations involved insurers,
  defendants, and labor
• Establishes privately funded trust totaling 108
  billion comprised of
• Insurers - 45B
• Defendant companies - 45B
• Current bankruptcy - 4B
• Voluntary contributions - 14B
• Payments to claimants based on three criteria
• Diagnostic - in person exam by physician
• Medical - 8 categories with scheduled payments
• Latency and Exposure - 10 years of exposure

39
Funding

• Participation is mandatory for insurers,
  defendants
• Defendants grouped into tiers based on historical
  payments
• Further separated into subtiers based on revenues
• Insurers will be subject to an insurer commission
  if allocation agreement is not reached
• Current allocation discussions center on blended
  approach
• 12 insurers likely to contribute over 75 of
  funding
• 20 insurers likely to contribute over 90 of
  funding

40
Quantify the Economic Impact of S. 1125

• Is proposed Trust Fund of 108B adequate?
• Tillinghast Projections Released May 2001
• 200B Ultimate Loss Expense
• Less 70B paid as of 12/31/2002 (est. by RAND)
• Equals 130B of future payments
• Reduced for frictional costs
• 28B defense costs (21.5)
• 41B plaintiff attorney fees (40)
• 61B expected to reach claimants
• Conclusion is consistent with RAND transaction
  costs have consumed more than half of total
  spending

41
Quantify the Economic Impact of S. 1125

• Indemnity Awards under S 1125 estimated claim
  filings x specific awards
• Future claims to be be filed from 2003 - 2049
• Pending claims to be re-filed
• Eight Disease Levels consistent with the Manville
  2002 TDP
• Lung Cancer One claims
• Specific awards
• 0 for Levels I-II to
• 750,000 for Level VIII (meso)
• Collateral Offset (0)
• Medical Monitoring (0.4 billion)
• Tested various scenarios - all at or below 108B

42
Insurer Contribution

• Insurer definition not limited to US companies
• Funding of 45 billion, discounts to 28 billion
• 17 billion to US direct insurer - allocation
  based on three variables
• 11 billion to London direct and all reinsurers
• allocation based on reserves?
• All funding is net of third party reinsurance
• Gross of financial covers
• US insurers currently hold 19.2 billion in net
  asbestos reserves versus 27.3 billion on nominal
  allocation
• 17.0 billion discounted
• Payment schedule has been suggested
• LOC-type requirement may be needed

43
Other Issues

• Agreement on insurer allocation
• Non-US funding
• Transition issues
• Reinsurance pipeline
• Significant discussion concerning the solvency of
  the fund
• Is 108 billion enough?
• Negotiations with labor

44
Michael 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

45
Jennifer 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