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Product Recall – Important New Endorsements

December 16th, 2016

Authored by industry experts:

Joel Berrian, CPCU, ARM, AIC Jberrian@big-ins.com Joe Bermudez, Esq Jbermudez@big-ins.com

Berrian Insurance Group (Berrian) offers three new endorsements to enhance product contamination insurance (PCI) and product recall insurance (PRI) protection. The three new endorsements are not offered by any other broker or insurer in the PCI/PRI marketplace.

The unique endorsements cover criminal strict liability, crisis costs, and expedited claims preparation. Berrian developed the enhanced endorsements by utilizing their comprehensive PCI/PRI policy expertise, strategic partnerships, claim experience, comprehensive knowledge of PCI/PRI insurance coverages, and specialized understanding of the perilous environment in which companies compete.

Criminal Strict Liability Endorsement

There has been a dramatic increase in aggressive criminal strict liability (CSL) prosecutions by the Department of Justice (DOJ) on behalf of the FDA and the USDA. In fact, the food industry has witnessed more CSL prosecutions in the past 18 months than over the previous 76 years. Companies’ food safety decisions are now retroactively examined from a criminal perspective. With the assistance of the FDA and USDA, the DOJ is aggressively prosecuting companies, C-Level executives, management, and employees under long-standing food safety laws. While no one will complain about bad actors being prosecuted, the DOJ is now criminally prosecuting mere negligence or companies which accidentally, unintentionally, or inadvertently allowed adulterated food to enter interstate commerce. The aggressive pursuit of CSL is distressing to the C-Suite as well as to the managers and employees involved in companies’ safety operations.

“To assist companies, C-Suite executives, management, and employees with the enormous expense involved in responding to an intrusive and exhausting DOJ investigation and prosecution, we’ve developed a CSL endorsement,” says Joe Bermudez, an executive vice president in Berrian’s PCI/PRI insurance program. The CSL endorsement, for which Berrian has been authorized to offer $5M in limits, provides comprehensive investigation and defense costs coverage for companies, C-Suite executives, management, and employees. Berrian’s CSL endorsement provides protection to an entire enterprise, which allows companies to properly defend against CSL prosecutions.

Third Party Crisis Consultant Costs Endorsement

When a recall hits, the vast majority of companies involved in the affected supply chain are unprepared.

“Whether the company is the cause of the recall or a victim of another company’s bad day, the intrusions, demands, and costs involved with a recall crisis are overwhelming,” says Joel Berrian. “For many companies, the recall may unfortunately result in them closing their doors. When a company buys PCI/PRI, it gains a panel of experts that will parachute in and help it survive a recall. As those companies that have purchased PCI/PRI have found, this specialized insurance is the difference when it comes to staying in business.”

Many of the same companies’ customers are left without any recall crisis response resources because they did not buy PCI/PRI, yet face the same intrusions, demands, costs, and potential catastrophic outcome. Berrian has developed a Third Party Crisis Consultant endorsement that provides crisis response services bigto companies’ customers. This coverage provides assistance to the company and its customers so that both can survive a recall crisis event.

There has been a dramatic increase in aggressive criminal strict liability (CSL) prosecutions by the Department of Justice (DOJ) on behalf of the FDA and the USDA. In fact, the food industry has witnessed more CSL prosecutions in the past 18 months than over the previous 76 years. Companies’ food safety decisions are now retroactively examined from a criminal perspective. With the assistance of the FDA and USDA, the DOJ is aggressively prosecuting companies, C-Level executives, management, and employees under long-standing food safety laws. While no one will complain about bad actors being prosecuted, the DOJ is now criminally prosecuting mere negligence or companies which accidentally, unintentionally, or inadvertently allowed adulterated food to enter interstate commerce. The aggressive pursuit of CSL is distressing to the C-Suite as well as to the managers and employees involved in companies’ safety operations.

“To assist companies, C-Suite executives, management, and employees with the enormous expense involved in responding to an intrusive and exhausting DOJ investigation and prosecution, we’ve developed a CSL endorsement,” says Joe Bermudez, an executive vice president in Berrian’s PCI/PRI insurance program. The CSL endorsement, for which Berrian has been authorized to offer $5M in limits, provides comprehensive investigation and defense costs coverage for companies, C-Suite executives, management, and employees. Berrian’s CSL endorsement provides protection to an entire enterprise, which allows companies to properly defend against CSL prosecutions.

Leavitt Group Expedited Claim Preparation Endorsement

Recalls involve an exhaustive list of various types of losses—from a company’s destruction costs to customers’ lost profits. While the affected company is busy trying to respond to the demands of the government, customers, suppliers, and lenders while simultaneously conducting business as usual, it must also record all of the various types of recall losses. 

“Timing is critical,” says Bermudez. “Monies are needed to keep operations afloat while responding to the cacophony of recall associated requests. Most companies do not keep large amounts of cash available for crisis response. Banks and private equity lenders are less likely to provide needed cash when assessing a company’s crisis viability in the midst of a recall. If unprepared, they may opt not to provide necessary funding and instead decide to jump off a sinking ship.”  

Understanding the extent of the recall losses incurred by a company as soon as possible is important. The calculation, analysis, and preparation of recall losses for claims presentation is known as claim preparation. While claim preparation is the last thing any company involved in a recall wants to be required to provide, it is critical to gaining an early interim payment under PCI/PRI to assist with the associated losses and expenses. Like other markets, Leavitt Group offers a Claim Preparation endorsement. However, Leavitt Group has developed an enhanced product, which allows the claims preparation effort to be expedited. An expedited claims preparation effort means that a company can receive an interim payment in a shorter time period in order to better assist with the financial pressures of a recall.  

CA License #: OE22557