What Is in a Standard Commercial Crime Policy? Contractual Requirement For Insurance

Do traditional Crime policies actually cover the risk that is understood under the contract? What are the risks for a client in buying off the shelf policies to meet the contractual requirements?

When speaking to our clients (contractors) who are working with organizations from countries such as USA, UK and Germany we are seeing more and more requests within the contract for Crime Insurance alongside the usual Professional Indemnity and General Third Party Liability insurances. Do traditional Crime policies actually cover the risk that is understood under the contract? What are the risks for a client in buying off the shelf policies to meet the contractual requirements?

What cover is implied by the contract?

Whilst the wording of the contract clauses is usually broad in its intent, we can infer that that the main purpose of the requirement is that if a member of staff of the contractor steals from the main organization then the organization will expect the contractor’s insurance to pay for the damage to the organization. It seems to be a pretty clear requirement and not particularly onerous, but how can it be covered?

What is in a Standard Commercial Crime Policy?

Traditionally a crime policy is for the protection of a client’s own assets, they are specifically set up to protect against a direct financial loss to the client due to the actions of both their employees and third parties. The cover can be broad in terms of protection of the client’s own assets (direct financial loss) but when it comes to actions against a third party then it becomes a more difficult proposition.
 
Typically Direct Financial Loss is not defined within the policy, but is an understood legal term for the loss of a clients own cash, securities and tangible property. So, in the case of an employee stealing from a client then we are in an area which is not covered under the main clauses of the policy.

What options are available?

In older crime policies there is no cover as required under the contract so they are not really useful, unless the client has large assets or holds large amounts of cash. In this case we need to ensure the cover is fit for purpose and not just a box ticking exercise as crime is a very expensive insurance in comparison to the other covers typically requested.
 
In more modern Crime polices there will usually be an optional extension for liability to a client. This will provide the cover needed under the contract but must be requested and checked to ensure it has no exclusionary language for territory or actions of the client. This extension will also typically exclude any actions which are in collusion with the organization’s staff which could lead to insurers trying to pass on the liability to the organization which could cause embarrassment for the client.
 
A neat way of creating the cover is to add the liability to the Professional Liability through a Dishonesty of Employees Extension. This is a clause designed to bridge the gap between the PI and Crime policies for the acts described above due to the Crime being designed to cover Direct Financial Loss (being akin to a property policy really) and not for legal liability. The clause gives cover to –
 
indemnify the Assured against all sums which the Assured shall become legally liable to pay as a result of any Claim or Claims made against the Assured during the Period of Insurance brought about or contributed to by any dishonest, fraudulent, criminal or malicious act or omission of any employee of the Assured.’
 
This would fit the presumption of the contract, albeit not providing the cover for the client’s own assets.
 

What difference does it make as to which is chosen?

Generally the main difference is that the cover given in the Professional Indemnity is a better fit for the client as it covers the implied contractual requirement most closely. The Crime work around does give good cover but does leave it more open to disputes where there is collusion.
 
The costs associated with the two options mean that where the crime can be incorporated into the Professional Indemnity these will be reduced significantly. Crime cover is typically the most expensive per million out of the standard contractual insurances, sometimes adding half the cost in total. Professional indemnity insurers will seek to charge for the extension, but not to the same level as a full crime policy. It is also usual for the crime deductible (franchise) to be higher than the Professional Indemnity as well.

Are there any other reasons for Crime Insurance being requested?

Sometimes the Crime cover is requested as a fall back in case a large fraud at the contractor causes them to cease trading. Contractors in the main are smaller than the organizations that they are working with and so have more exposure to shocks such as large internal frauds. In the case of a loss of $ 1.000.000 a lot of contractors would find it difficult to continue to pay wages, costs and taxes which could lead to a failure of the contract as people leave and / or the company is forced into receivership. The clause is thus to protect the organization from shocks to the contractor in this case.
 
It is therefore important to understand what the contract is seeking as there can be major reasons for a full Crime policy, but in the main the organization is seeking to protect itself from theft by staff of the contractor having access to their systems / premises.

Conclusion

The main takeaway is that we need to understand what is being sought by the organization in the contract. If it is merely to ensure they are protected from theft when giving access or through products bought (software for example) then we can look to provide cover which does this through a Professional Indemnity policy. If it is more for a catastrophic loss and inability to trade then we probably still need the Crime insurance as well.
 
It has been more and more standard in Professional Indemnity for Tech firms to include the Dishonesty Extension due to these requirements so a strong Tech Professional Indemnity policy tends to be sufficient for Tech contracts. For other professions it is more optional, but still usually available on the market.
 
I would note that the most common claims we see from Central and Eastern Europe are crime claims so it is always important to cover this area when a company gains critical mass, but for small entities needing insurance for contractual purposes then these work arounds can save money.

Brian Alexander

Group Practice Leader Financial Institutions

T +43 664 962 39 17

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Financial Institutions Are by Their Nature Big Beasts: Interview With Brian Alexander

Brian Alexander, GrECo Group Practice Leader, shared his insights into struggles that Financial Institutions face regarding crime, the unique value clients get from Directors and Officers insurance and the specific insurance situation in Serbia. This interview was originally published in Svet bankarstva, a publication dedicated to banking sector developments in Serbia.

What are the main benefits of insurance solutions for financial institutions? 

Аlexander: Financial Institutions are by their nature big beasts. They have many interconnecting parts which raise the risk profile more than in traditional business. Each country has its particular quirks and so the experience of insurers and brokers from a risk perspective can be particularly telling as they get to see most of the institutions’ peers on a geographical basis so sometimes they can see issues arising faster than risk departments.
 
The main bank focused insurance of Bankers Blanket Bond (Crime), Professional Indemnity, Directors and Officers Liability and Cyber Liability have been in existence for many years, with a crime, in particular, having a history of 120 years, and in this time they have been tailored to the needs of banks and other Financial Institutions such as Investment Management (which has its specific product) so the cover is as broad as possible for the institutions. 

What are the largest risks and liabilities that financial institutions face? Do you think there are any specific risks especially relevant for financial institutions in Serbia? 

Аlexander: When we look at risk we look into the profile of the client and their inherent internal risks. 
 
Banks are perceived as rich in all societies and as such can be one of the first to be tested in legal cases. People are more likely to sue a bank than any other company as both they and their lawyers see them as lucrative targets. This coupled with the public perception of banks as being against the consumer means there is little sympathy in these cases. Professional Indemnity is the insurance which sees the highest losses for banks regularly due to these factors on a worldwide basis. 
 
With the perception of ready funds and financial data, a bank is one of the number one targets for hacking. We have seen the recognition of this by banks worldwide with high levels of security in this area. However, the security is only as strong as the weakest link and as discussed below this is the staff. Cyber Liability is a strong insurance product which helps in the case of lost data and liability carried under the law for this (GDPR etc.) but also in the clearing up after a hack. 
 
When we look at Serbia the focus is more on the crime element as the legal system is not yet at the level of the US or Western Europe in terms of recognising consumer rights (although it is moving more in this direction). Over the past 20 years, the main insurance risk in Serbia for banks has been from crime and in particular Internal Crime (Employee Infidelity as it is termed in the policies). 
 
Internal crime is one of the more difficult losses for an institution as it is both a breach of trust and also shows that controls were not as robust as was perhaps perceived. The second point is not always the case as trust is one of the key weak links in any system. When we look at typical fraud there is almost always an element where the person involved has managed to gain the trust to complete transactions on their own without oversight. The usual fraudster will have been in the organisation for at least 3 years but more typically 5-10 years and likely in the same role. They will be seen as reliable and good at what they do, likely working long hours and not taking many holidays. This leads to them not being monitored quite so much, because they have been so proficient over the years. 
 
In Serbia, we have seen fraud in the banks with losses over €1.000.000 several times and also a good deal of sub €1.000.000 losses as well. Internal crime has an almost limitless ceiling within a bank or Financial institution as most assets are dematerialised these days so movements of funds electronically are only really hindered by how to cover it up.
 
The days of the robber with a gun entering the branch being the main crime risk are long over and when we consider the sentence for robbing using a computer is around 2 years, robbing with a gun is 8-10 years, we can see it is better to use electronic means to rob. In terms of robbery by electronic means, it is almost always facilitated by a member of staff when practised in a bank.
 
When we discuss insurance with banks in Serbia and the greater region, the emphasis is always on crime insurance first and foremost as this is where we have seen the most claims. Insurers have the right to subrogation in the policies, but in my experience, very little ever gets recovered, so uninsured losses tend to be absolute. 



What is the unique value clients get from Directors and Officers insurance? 

Аlexander: Directors and Officers Insurance is a unique product in that it is protecting the decision-makers themselves and their assets. 
 
The insurance was created to ensure that the decision-makers in organisations could make bold choices in how to run the business without having to worry should it not work out as they had hoped. Of course, if they are reckless or criminal this will not be covered, but good faith decision-making will be. This allows an organisation to take calculated risks without the potential personal downsides that failure could bring personally.
 
The policy operates on two levels. The first is as essentially a legal expenses policy where accusations of wrongful conduct against an individual will be defended using the policy to pay legal fees, expert fees and the like. The second part is to pay any damages which are awarded against the director(s) as a result of the case. We can cover fines and penalties as long as the legal system in the country allows this.
 


Regarding underwriting risks, could you bring some insights into what the whole underwriting process for financial institutions looks like and what are the relevant limits here?

Аlexander: Firstly the limits are particular to each country and organisation based on their risk profile and willingness to bear risk. We have many peer examples that mean we can benchmark the organisation, but it is not a one size fits all process. This is where experience comes into play and setting the right levels of both limits and deductibles based on the above is one of the key roles of the broker in the process. 
 
When we get to the underwriting of the risk, the key here is information. The more the insurers have the more closely the premium will reflect the actual risk. Clients who give the bare minimum asked will have the biggest fluctuations in pricing. 
 
The main information the insurers are looking for is the number of staff (crime), fees and revenues (PI), assets (D&O) and unique data points (Cyber). All will look into the security and decision-making process of the bank and the latest financial information will be important too. The financials are an interesting point as for D&O their use is clear – a profit-making bank will be less likely to have their decision-making process examined leading to lawsuits – but for crime, it is important too as a failing bank can lead to staff feeling insecure and historically this leads to some committing fraud as they fear that there will be no money left to pay them in the event of redundancy. 
 
The process begins with the filling in of the proposal forms and the discussion of relevant limits with the broker. The broker will then approach insurers that they know are interested in Serbia and acquire quotes on behalf of the client. These will then be analysed based on the cover offered and the price, after which they will be presented to the client with a recommendation on which is felt is best. 


What are the steps in the process of claim settlements, especially crime claims, for financial institutions? What are the main obstacles in this process? 

Аlexander: Claims handling is a relatively painless process for clients as most of the process is managed between the broker and the insurer. 
 
In terms of crime claims once the potential loss is discovered then it is time to tell your broker. They will then inform the client of the issue and the insurer will open a file. The full information is not required at this moment, just the potential of a loss. If there is suspicion of a loss then you should always notify it, there are time conditions on notification of a claim and these are strict because something left can develop into a larger loss. The insurers are experienced in handling claims like this as they see them from all over the world, so are best placed to know what to do. It is in the client’s interest to get them involved as soon as possible, even if it is just a suspicion.
 
Once it is established that something in all probability has happened then a loss adjuster will be appointed. They will speak to the client and establish the likely cause of the loss. They will conduct interviews and ask for relevant documents for the case. The faster they receive these the sooner the loss will be established and payment made. They are highly experienced companies and will likely have seen the scenario before so they tend to know what is needed to prove the claim. 
 
After their report is passed on to the insurers the insurer will then decide on what will be paid. In the main most claims are paid in full within 6 months for a crime claim. Very complex claims can take longer, but in the main, these are rare in Serbia. 
 
In the past, we have seen a reluctance to give information to the adjuster. This is due to perceptions of issues around confidentiality from the client. It should be known that it is not in the interests of the insurer or the adjuster to leak any information, indeed the adjuster must work based on complete confidentiality, and they will not do so as a breach of trust like this will have serious reputational issues and likely see them lose business as a result.

What are the main misconceptions that clients in Financial Institutions might have when it comes to crime insurance? 

Аlexander: The major misconception is that the claim will not be paid until there is a court case proving the loss has happened with the individual being found guilty. This is not the case. The insurance does not mention this within the contract and indeed it would make it a poor product if it did. The claims are paid based on probability, so there does not need to be 100% certainty that the loss happened as suspected. In cases where it is closer to 50:50, there will be a need for more information, but most are more like 80:20. The wording used is tried and tested and most scenarios have been seen before, so fast decisions and knowing where to look are the norm. Another misconception is that improper financial gain (theft of money for the perpetrators’ use) must be fully proven. Again there are many ways that this can be shown without the smoking gun of a bank account.
 
We also see that deductibles can be off-putting for clients. Crime insurance is one of the most ’used’ insurances and therefore reporting every claim has a much higher cost than say D&O. The deductible is there to keep it more affordable because in a scenario where every theft is covered from €0 then the insurer may need a member of staff just for this one client to handle the claims. Looking at it from this perspective the cost would be enormous before the risk is taken into account. For this reason, we always discuss crime in terms of catastrophe risk, i.e. one which is above the pain threshold for the bank. This is where the discussion with the broker is important as deductibles can have a serious impact on price.


What is the added value that an insurance broker brings to the clients in the finance industry?

Аlexander: Whilst the risk department of any bank will know its specific risk better than anyone else, the broker brings the breadth of experience of many clients to the table. Benchmarking your risk and having access to the worldwide market are two key drivers for getting the best deal. 
 
The idea of a broker being just an individual to take your risk to the market and provide a price is an old one and the modern broker will work with you as a risk consultant to ensure that you are getting the best coverage for the best price. Experience is key here as the more we have seen, the more we can bring to the conversation. In my time as both an underwriter and a broker, I have probably seen most claims and insurance policies for banks in South Eastern Europe and also worked with the insurers who are keen to do business here. I also paid most of the claims.
 
With a broker such as GrECo, we are a Central and Eastern Europe-based broker (this is all we do, Serbia is not just a number on a balance sheet it is core to our business), but with experienced individuals who have worked in the major insurance markets around the world. I was the leading underwriter of CEE Financial Institutions risks for over 15 years at Lloyd’s of London for example. This experience and breadth of knowledge allow us to be truly specialist brokers and risk consultants rather than a salesforce. 
 

Brian Alexander

Group Practice Leader Financial Institutions

T +43 664 962 39 17

The Consequences of Opening Up

What does this mean for crime and D&O insurance?

As the light at the end of the Covid-19 tunnel comes into view, what can we expect when we return to the office? Unfortunately, times of uncertainty tend to also be the times of higher fraud and also times of blame.

To look to the closest analogy, we have in recent times, the 2008 financial crisis is the nearest we have to an unprecedented event such as the Covid-19 crisis. When times were good mistakes and irregularities tended to be overlooked especially in the banking sector. As the liquidity crisis started to hit home it required everyone to open their books and see what their real position was. What they saw was often a mess of poor control and lax lending / borrowing. In the good times, controls had dropped – we need only look to USA where the practice of NINJA (No Income, No Job or Assets) or Self Certified loans was running rampant leading to systematic fraud and the collapse of several famous banks in the country. In UK there was a thriving industry in defrauding banks on Buy to Let loans which also brought down some venerable old names. Generally loan fraud was running rampant in the Western banking system.

The rise of crime and D&O policies for banks in CEE

In my own experience of dealing with banks in Central and Eastern Europe this was a time of increased claims on the Crime polices of the banks, a lot of things that would be overlooked in the past were now being looked at more closely and the number of fraud claims tripled in just one year. The amounts were relatively large and showed that there had been lip service paid to lending controls and controls around accounts of wealthy clients.

There was also the first real increase in litigation against banks and commercial entities as lenders and shareholders looked for somebody to blame. When money is lost there is always someone whose fault it is, particularly when investment companies are involved. This led to the start of the interest in Directors and Officers insurance on a large scale in CEE.

So what can we expect in the coming year as the economies open up?

Given past events we would expect to see the discovery of more frauds. The average timeline of a major fraud in a bank is around 18 months, so if we look at July as being a realistic time for most controls to be released then this will mean that the whole of the Crisis from the first lockdown onwards will almost exactly match this timeline. The lack of supervision whilst working from home will have tempted some to try to defraud their employer (statistically around 0.2-0.5% of employees are committing fraud at any given time, mostly petty), combine this with the uncertainty around whether there will be jobs to return to and you have a potent mix for crime to flourish. We can also add to this the fact that desperate businesses may have been susceptible to paying ‘gratuities’ to helpful loan officers – a very common form of employee infidelity.

As businesses survey the wreckage of the past 18 months they will also have a battle for survival. Investors will try to minimize their losses and are likely to resort to litigation when there is no other option. This will likely take the form of looking into decisions made by the boards in the run up to and during the lockdowns (Did they close too early? Were they too cautious? Did they not move quickly enough to take advantage of the new normal?). It should also be remembered that Liquidators see a Directors and Officers policy as an asset of the company.

More frauds to be discovered after the Covid-19 crisis

In conclusion, if we see a similar trend as in 2008, then we will expect an increase in events which can be covered by Crime and D&O insurance. There is no reason to doubt that this will be the case as the underlying issues are similar in that a strong worldwide economy was moving towards recession and a devastating event pushed it over the edge. The liquidity crisis of 2007 onwards came from a lack of trust forming as recession started to appear on the horizon, Covid-19 struck just as the fundamentals were turning as well. Policies in boom times by their nature are more lax than desirable as we move for growth.

As Warren Buffett said: “Only when the tide goes out do you discover who’s been swimming naked.”

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Brian Alexander

Group Practice Leader Financial Institutions

T +43 664 962 39 17

Safe through troublesome times

Investment policy of the insurance industry

After banks, the insurance sector is the second largest asset manager in Europe. The assets consist to a large extent of the funds paid in by the insured in the life insurance, on the other hand they serve to secure the obligations arising from the insurance contracts for the payment of claims. The asset strategy is checked by the supervisory authorities in each country and its principles must correspond to the provisions of EU law Solvency II. A management report from the supervisory authority provides information on the status and development of the investments (see: EIOPA Data and Figures Financial Stability Report: Investment split).

Traditional and new investment forms

The most important instrument for long-term security of the invested assets and regular income are bonds, which make up around 60% of all investments. These are divided into government bonds, corporate bonds and bond funds. The distribution between these forms differs from country to country and depends on the bid of the respective state or the private bond issues. As with all other investments, the decline in interest rates is noticeable, but insurers are reacting to this by taking out bonds with ever longer terms. In life insurance in particular, remaining terms of around 10 years can be found in the existing portfolios in Germany and Austria, while terms in other countries are still 5 to 6 years. In the next few years, however, there will be a major shift in this part of the assets when bonds expire and can only be replaced by those with a lower yield. So that the level of interest rates does not fall too sharply, there is a tendency towards bonds from issuers with lower credit ratings, but these still make up a very small part of the portfolio. In terms of issuers, insurers concentrate on European countries and companies in addition to their home countries, with a focus on the large industrialized nations of France, Germany, the Netherlands and Belgium.

Investing in shares, apart from strategic investments and the establishment of own corporations, has lost a lot of importance after the crises at the beginning of the new millennium. The possible volatility is difficult to reconcile with the insurance business model and with the new regulations. In Austria, the share of equity investments fell to 1.2% in 2018, in other countries it is slightly higher, but without reaching the former proportions (e.g. 20 to 30% in Switzerland).

In search of an interesting total return, real estate investment has received a new boost. This form of investment is historically important for insurers because it also makes a reliable contribution to stable values and regular income. The construction boom of recent years, both in residential construction and in the construction of commercial properties with the corresponding financing requirements, has also given the insurance sector new impetus. In Austria, the total investment in real estate on the market has grown to over 10%; with individual companies, real estate is already the second major pillar of all investments with a share of around 40%. This development is similar across Europe, with local differences that result from the economic development of the respective country.

The construction sector is also an opportunity for other investments by insurers: there is an increasing willingness to invest in infrastructure projects and to participate in private-public partnerships in order to make an interesting contribution to total returns (search-for-yield policy). In recent years, the share of this type of investment has tripled due to the great demand. The investment of the insurer is rounded off by individual loans, mortgages and cash deposits at banks, which make up a maximum of 10% of the total portfolio.

Which influencing factors can be expected that can determine the success of the investment policy?

In recent years, the positive factors (very good international economic situation with steady growth, increase in the volume of insurance premiums, investments in large infrastructure projects) have been countered by the pronounced low interest rate phase as the most important negative parameter. Uncertainty factors in both directions included climate change, Brexit, demographic changes, increasing digitization and the beginning of a trade dispute between the great powers.

Then the global economy was surprised by Covid-19. The economic consequences of the pandemic and the countermeasures that have a direct negative impact on the economy cannot yet be assessed today. The insurance business model will have to accept certain losses both in the core area (receipt of premiums to finance claims and pensions) and in the investment field. The long-term nature of the business in both areas and the investment in countries and companies with very good credit ratings (75% of all bonds relate to the three best credit ratings) suggest that the insurance industry will also master this crisis very well.

The article is written by Andreas Krebs.

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Paul Spittau

Head of Group Carrier Relations & Insurance Mediation

T +43 664 537 17 42