Construction U.S. Market Conditions

Transcription

1 Construction U.S. Market Update April 2012 Market Conditions JAMIE KNOOP Senior Vice President Unit Manager The U.S. construction market continues its trend toward increased rates in chosen segments and geographies. And while most would hesitate to predict a hard market, pricing is under pressure, PAUL PRIMAVERA Senior Vice President Claims pprimavera@lockton.com particularly in catastrophe-exposed property and workers compensation lines. The industry remains well-capitalized with improved investment gains in Overall, surplus totaled more than $538 billion double the capacity in Insurance INSURANCE Surplus SURPLUS (Q3) (Q3) U.S. Policyholders Surplus (or Capital) U.S. POLICYHOLDERS September 2011 $538 Billion SURPLUS (OR CAPITAL) SEPTEMBER 2011 $538 BILLION $600 Dollars in Billions $500 $400 $300 $200 $100 $ (Q3) Actual L O C K T O N C O M P 1 A N I E S

2 Average Rates Workers Compensation Guaranteed Cost Loss Sensitive Coverage Q Rates Q Rates 7.5% to 15% 3% to 6% -3% to Flat -5% to Flat General Liability Flat to 10% -5% to 5% Commercial Auto Flat to 5% -5% to Flat Excess Liability Flat to 5% -5% to Flat Builder s Risk Flat to 10% Flat Professional 5% to 10% Flat to 10% Pollution Flat to 5% Flat Of note, workers compensation rates have been accelerating more quickly than most other lines as evidenced by deteriorating underwriting results stemming from medical cost inflation, unfavorable loss development, reduced payrolls from the weak economy, and an erosion in legislative reforms passed in prior years. As a consequence, insurers combined ratios continued to increase to percent in In California, middle-to-large contractors are seeing most of the significant increases compounded by a trend in increasing experience modification rates. WORKERS COMPENSATION COMBINED RATIO: 1994 TO 2012F CA GUARANTEED COST VS. LOSS SENSITIVE % % 10% 5% 4.97% 14.63% 14.40% P 12F Workers compensation underwriting results are deteriorating markedly and are the worst they have been in a decade. Sources: A.M. Best; Insurance Information Institute 0% -5% -10% Guaranteed Cost Payroll Change Source: Lockton Insurance Brokers -5.73% Loss Sensitive Net Rate Change (Incl. Ex. Mod.)

3 Legal Updates In February 2012, the United States Court of Appeals for the Fifth Circuit concluded that a purchase agreement was not considered a covered contract under a commercial general liability (CGL) policy and, therefore, was excluded under the contractual liability exclusion. Case Facts On November 8, 2006, a crane manufactured by JLG Industries allegedly malfunctioned, causing injury to two individuals. The injured parties sued JLG under the theories of negligence, breach of warranty, and strict liability allegations. Through a series of company sales and associated purchase agreements completed prior to the accident, JLG was defended in the litigation by the current crane company owner, Manitex. However, Manitex s CGL insurance carrier, Colony National, sought a declaratory judgment from the district court that it had no duty to defend or indemnify the liabilities assumed by their policyholder. In reviewing the case, the district court concluded that the purchase agreement was an insured contract under the CGL policy and, therefore, fell within the exception of the contractual liability exclusion. The decision was appealed to the federal court. Case Analysis At issue in this case was the dispute of whether the contractual liability exclusion applied to the case facts. The CGL policy (under exclusions) outlines that coverage does not apply to: b. Contractual Liability Bodily injury or property damage for which the insured is obligated to pay damages by reason of the assumption of liability in a contract or agreement. The exclusion does not apply to liability for damages: 1. That the insured would have in absence of the contract or agreement; or 2. Assumed in a contract or agreement that is an insured contract, provided that the bodily injury or property damage occurs subsequent to the execution of the contract or agreement... Manitex contended the purchase agreement with JLG is a covered contract and, therefore, provided an exception to the contractual liability exclusion. The CGL policy defines a covered contract pertinent to this dispute as: f. That part of any other contract or agreement pertaining to your business (including an indemnification of a municipality in connect with work performed for a municipality) under which you assume the tort liability of another party to pay for bodily injury or property damage to a third person or organization. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement. Colony argued that JLG was the only entity that had any tort liability as defined by the CGL policy. That is, only JLG s liability would be imposed by law in the absence of any contract or agreement. Colony further contended that Manitex s liability can only be imposed by the purchase agreement and based solely upon contractual liability.

4 The federal court of appeals agreed with Colony and reversed the district court s previous decision. The court based its opinion on the evaluation that Manitex did not assume tort liability as defined by the policy. In its decision, the federal court outlined: The Purchase Agreement provides that Manitex assumed [a] ll liabilities of the seller [(powerscreen)] for claims... And action in law... brought after the Effective Time of Closing by any Person seeking recovery from personal injury. Thus, according to the Purchase Agreement s plan language, Manitex assumed Powerscreen s liability. Powerscreen s liability arose strictly from a contract, namely, its purchase agreement with JLG. If that contract did not exist, then Powerscreen would have had no liability related to the Hawkins and Martin claims. Powerscreen s liability, therefore, was not one that would be imposed by law in absence of any contract or agreement. Therefore, it was not tort liability. Given that Manitex did not assume tort liability through the Powerscreen-Manitex Purchase Agreement, that agreement was not an insured contract. Conclusions Time will tell if other courts will come to similar opinions expressed in this unpublished decision. Regardless, the case is a stark reminder of the hazard of attempting to combine any contractual liability obligations with corresponding additional insured coverage. Click here for a copy of this decision. New Markets and Products Wrap-Ups Continued aggressive pricing characterizes the wrap-up market for both commercial and residential projects. Smaller residential projects will continue to be more prevalent as insurance restrictions on residential exposures remain a factor for both general contractors and trade contractors. Owners and lenders prefer the coverage certainty these programs extend to completed operations and coverage through the state statutes of repose. Legislative restrictions on contractual risk transfer have made wrap-up and project-specific coverage solutions more attractive for many contractors and owners. This is especially true in New York due to Labor Law 240 and the impending California State Bill 474, which is scheduled to take effect on Jan. 1, There is an increased interest in exploring general liability-only wrap-ups. The standard markets do not readily embrace this product, and the vast majority of opportunities are being written in the surplus lines market. Homebuilder Wrap-Up Market New entrants into the residential market are characterized by customized policies including warranty coverage to allow builders to proactively fix the problem without waiting for the trigger of a lawsuit to initiate coverage. Builder s Risk New entrants are competing aggressively for builder s risk business, creating capacity and broadening coverage forms to gain market share. Excess and surplus capacity remains high as carriers seek to replace premiums lost when construction slowed and projects stalled.

5 Contractors Professional The very popular combined professional and pollution liability (CPPI and OPPI) is seeing new players emerge to compete against Zurich and Catlin. Catlin has responded with a new coverage form that continues to push coverage enhancements that have meaning for contractors and owners. The pricing in this environment seems to be flattening out. Construction Starts and Trends New construction starts in February dropped 7 percent from the previous month, according to McGraw-Hill Construction, a division of The McGraw-Hill Companies. The nonbuilding construction sector, comprised of public works and electric utilities, lost considerable momentum in February, and diminished activity was also reported for nonresidential building. Residential construction starts in February 2012 produced modest growth up 3 percent from January February 2012 Construction Starts FEBRUARY 2012 CONSTRUCTION STARTS THE DODGE INDEX OF NEW CONSTRUCTION STARTS (YEAR 2000 = 100) MONTHLY SUMMARY OF CONSTRUCTION STARTS Monthly Construction Starts Seasonally Adjusted Annual Rate, in $ Millions February 2012 January 2012 % Change Nonresidential Building $127,617 $137,710-7% Residential Building $140,575 $136,298 +3% Nonbuilding Construction TOTAL CONSTRUCTION $107,760 $128,452-16% $375,959 $402,460-7% The Dodge Index (Year 2000 = 100, Seasonally Adjusted) February January Source: McGraw-Hill Construction Research & Analytics Year-to-Date Construction Starts Unadjusted Totals, in $ Millions 2 Mos Mos % Change Nonresidential Building $18,075 $21,751-17% Residential Building $18,680 $15, % Nonbuilding Construction TOTAL CONSTRUCTION $16,104 $24,076-33% $52,859 $61,426-14%

6 Construction Industry Sector Trends Market Sector 2012 Forecast Economic Drivers Residential: Single family Multifamily Apartments Commercial: Office Retail Mixed-use Resorts: Hotel, lodging Institutional: Healthcare Education (public and private) Energy: Wind Solar Nuclear Infrastructure: Highway (street and road) Waste and water Single family will begin to recover by a combination of 1) developing land to finish lots, 2) increased development in coastal locations, and 3) builder acquisitions. Multifamily/condos beginning to recover. Apartment construction continues to increase including condos converting to apartments due to increase in renters market. Slow recovery on new construction due to unemployment expected to remain nationally above 8 percent. Tenants will continue to trade up by relocating or upgrading. Down about 1 percent with recovery projected in 2012 to be a modest 7 percent growth rate. Leisure continues to be down with business travel improving. Green upgrades loosing traction due to increased costs. Expected strong growth in 2012 for healthcare. Public education is down due to decline in state revenues and minimal municipal bonds for new projects. Endowments to private schools and universities tied to stock market performance. Experienced significant growth last four years from $36 billion to $89 billion receding slightly in $128 billion projected by Nuclear may be on hold due to the fallout from the Japan earthquake. Highway impacted by reduction in state revenues. Waste disposal growth by necessity to upgrade and replace old systems. Water-supply construction will see steady growth from $16 billion in 2010 to $22 billion in Sources: FMI 2011 U.S. Markets Construction Overview; Lockton Construction Services Unemployment rate Credit loosening Mortgage rates Housing affordability Continued tax incentives Government distressed loan programs Unemployment rate Vacancy rate Occupancy rate Business travel Leisure, vacation travel Population Baby boomers retiring Renovation of aging facilities High-end residential construction (private schools) Stock market Municipal bonds Industrial production Population Alternative energy tax incentives Political climate Federal spending Residential and nonresidential construction Population Political climate Conclusion The insurance industry has remained resilient through one of the most difficult market cycles, plagued by the protracted soft market, a weak economy, and a politically caustic business environment. As always, controlling losses through solid risk management, maintaining and broadening market relationships, and having a solid broker partner to help you communicate your firm s philosophy and strengths to the marketplace remain the keys to obtaining the most competitive program available Lockton, Inc. All rights reserved. Images 2012 Thinkstock. All rights reserved.