Fiduciary Liability: The Most Misunderstood of Management Exposures

In the early 1960s, life in the United States was lived at a slower pace. Transportation and communication required more time (and patience) and employees were more inclined to trust employers on issues relating to employee benefits. Yet, it was the closure of the Studebaker automobile manufacturing plant in South Bend, Ind., in 1963 that was the seminal event in the evolution of a liability insurance coverage that today’s knowledgeable human resources professional would consider essential to his personal asset protection.

Studebakers and employee benefits reform
From its origin as a carriage business in the mid-19th century, to tough financial times before World War II and enhanced engine production during the war, Studebaker generated a “family of workers” who were assured by management they would be financially cared for in retirement. In 1963, after introducing the legendary Avanti, Studebaker was forced to close its doors. Unable to meet promised obligations to workers, many were left financially challenged in retirement, and the situation was the focus of federal legislation designed to reform the U.S. pension and retirement system.

Led by New York Republican Sen. Jacob Javits, Congress passed the comprehensive legislation known as the Employee Retirement Income Security Act of 1974 (ERISA). Signed into law by President Gerald Ford and effective Jan. 1, 1975, the legislation, also known as “the Mother of all employee benefits legislation,” addresses virtually all employee benefit plans, not just retirement and profit sharing plans.

From an insurance industry perspective, the only insurance coverage mandated by this legislation is employee dishonesty insurance—which many sellers of insurance refer to as “ERISA bonds”—on individual employee benefit plan assets. The amount of coverage required is 10 percent of the assets of each plan, subject to a minimum amount per plan of $1,000 and a maximum amount per plan of $500,000.

Experts believe that even if a benefit plan has no assets—such as group medical or life insurance, or an HMO/PPO plan—in order to be in technical compliance with ERISA it should still be scheduled for dishonesty coverage if omnibus coverage language cannot be utilized.

But the startling revelation to many buyers as well as sellers of insurance is that ERISA’s section 410(a) places strong personal liability on any person considered a “fiduciary” under the Act’s broad definition of the term. The liability is stated as “personal” and affected persons are advised that corporate bylaws indemnification provisions are not applicable to this personal liability. Thus was created the need for a new product, known as fiduciary liability insurance.

And according to ERISA’s section 410(b), an affected “fiduciary” is permitted to purchase liability insurance for this specific exposure.

The other liability insurance coverage
Pre-dating the ERISA legislation in the mid 1970s, several insurers had introduced a simplistic insurance coverage designed to address errors and omissions arising out of the administration of employee benefit plans. It had been recognized that human resource personnel could make mistakes when enrolling workers in group insurance plans, or when transmitting employee instructions for changes in benefits to the insurer. This coverage was known as employee benefits liability (EBL), and it came to be written as an endorsement to comprehensive general liability coverage policies, now known as commercial general liability forms.

Although this coverage is frequently confused with fiduciary liability insurance, the differences are many and critical.

There is very little, if any, underwriting of EBL insurance. Essentially, a small annual premium charge is made to automatically add this coverage to CGL policies. Like fiduciary liability insurance, it is generally written on a claims-made basis, and many underwriters pay little heed to retroactive dates, especially when the CGL insurer is changed. In addition, little exposure is contemplated. Minimal premium charges will apply (as low as $50 to $100 annually), with minimum limits also applicable. Coverage forms are not uniform. Many specifically exclude any claims arising out of ERISA. Their purpose is to address non-bodily injury/
property damage or personal injury liability arising out of the administration of employee benefit plans. They are not meant to cover more critical discretionary judgment exposure.

Almost any insurer writing CGL insurance is willing to offer EBL as an extension of coverage. However, the total number of insurers willing to offer fiduciary liability insurance represents only about 10 percent or less of the total number of insurers writing CGL.

Current and anticipated exposures
A valuable source of exposure information is a periodic survey conducted by Tillinghast Towers Perrin consulting firm. The current Fiduciary Liability Survey (2004), the first to be released since 2000, contains some interesting and comprehensive information concerning exposures, claims amounts and insurers.

According to this leading source of objective information, the average defense cost per claim is $365,000, with average non-defense indemnity costs being just under $1 million (defense costs are up from $121,000 in 2000, and indemnity costs are down slightly from 2000’s $1.19 million). The cause of claims most frequently cited in the current survey is “denial of benefits,” followed by “misleading representations” and “communication of plan benefits.” In looking at claims susceptibility (survey respondents reporting one or more fiduciary liability claims), business types of “durable goods manufacturing,” “merchandising” and “utilities” show the highest percentage of claims, and “transportation/communication” and “health services” show the highest frequency of claims (average number of claims per survey participant).

One could argue that our society has evolved to one where the slightest injury/damage triggers a potential legal process of attempting to fix blame. Never was this truer than with respect to financial losses. If employees see that 401 (k) investments, for example, significantly decline over a given time frame, then the employer must be somehow shown to have some responsibility (reinforced by the Tillinghast survey results).

The allegations here could involve a lack of proper communication or historical investment return information, or a failure to warn of potential danger in a particular investment choice. If employer stock is utilized in 401(k) plans, either as an investment option or for matching purposes, and the stock value declines, then it can be easy to assert “managerial malpractice” as a cause of action for 401(k) financial losses. Thus, the exposure of employer stock in a 401(k) plan is greatly frowned upon by fiduciary liability underwriters.

Employee Stock Option Plans (ESOPs) are also cause for fiduciary liability underwriter alarm as allegations of company mismanagement can trigger D&O or fiduciary liability claims.

Recent employer use of managed care arrangements (in the form of HMOs, PPOs, POS or similar arrangements) can also trigger allegations under a fiduciary liability policy.

And just because an employer chooses to utilize a third party administrator (TPA) for 401(k) plans or managed care arrangements doesn’t relieve the employer of the personal liability imposed upon persons with discretionary judgment authority—the personal liability aspect of ERISA cannot be delegated to another person or organization. Even if some form of delegation was possible, what knowledgeable TPA is going to both accept full responsibility for the actions of the employer, as well as provide errors and omissions liability insurance in an amount sufficient to fully cover the total asset base of any plan in question?

Another recent exposure development is that of the Health Insurance Portability and Accountability Act (HIPAA) of 1996 with its “final compliance” in April 2004. This act promotes the continuance of health insurance benefits through individual employee-employer changes, and mandates safeguarding of employee health insurance-related information, with significant fines for proven violations. Many fiduciary liability insurers will provide HIPAA coverage through an endorsement to fiduciary liability insurance policies, for a reasonable premium charge. In our litigious society, such an extension can prove valuable.

Obtaining effective insurance
Once one grasps the concept of personal liability embedded in the ERISA legislation and the historical development of exposure, one can then turn to finding appropriate coverage.

Several large settlements involving fiduciary liability recently sent shockwaves through the underwriting community. In 2001, First Union settled allegations of fiduciary liability from a reported 100,000 current and former employees for around $30 million. This year, Enron’s fiduciary liability insurers reportedly agreed to a settlement in the $80 million range with a variety of former employees and retirees. Prior to these, very large fiduciary liability settlements were unknown.

Plenty of fiduciary liability limits capacity exists for smaller employers, with individual insurer capacity of up to $15 million routinely available. For larger employers, total market limits capacity of up to $75 million or $100 million is possible, but is seldom utilized. The higher the limits desired by purchasers, the greater per claim deductible mandated by underwriters.

Pricing for fiduciary liability insurance is based upon individual benefit plan assets, annual contributions, past loss experience and funding practices of employers.

Important provisions
It is important that fiduciary liability insurance be more than just “ERISA liability” insurance. Most benefit plans are subject to ERISA, notable exceptions being “non-qualified” plans, such as executive deferred benefit plans. The best coverage will encompass any conceivable discretionary judgment action, and will not provide for a claims retroactive date. Almost any fiduciary liability underwriter will offer a HIPAA extension, as well as protection for the “employers managed care liability” exposure.

Unlike other types of specialized liability insurance coverage, the necessity for an affirmative coverage statement for allegations of punitive damages is lessened, since ERISA makes no specific provision for punitive damages. However, having an affirmative coverage grant for punitive damages would be a wise idea.

Since the claims propensity is rising, private companies choosing to combine aggregate limits for fiduciary liability insurance with aggregate limits of employment practices liability and D&O liability insurance, might consider an increased overall aggregate limit.

The misunderstood coverage
Why is fiduciary liability exposure and insurance so misunderstood? It is difficult for many employee benefit plan decision makers to grasp the “personal liability” concept. “Surely there must be some insurance coverage within the corporate portfolio which will respond to this exposure,” is the thought, but the reality is that not only is there no other insurance coverage available, but unlike D&O liability insurance, which almost always carries a specific exclusion for liability arising out of the ERISA legislation, there is no provision for utilization of corporate bylaws indemnification provisions, within the liability imposed by ERISA.

There is also confusion with the ERISA-mandated insurance for employee dishonesty, which is satisfied by “ERISA bonds,” or more simply, an endorsement to existing employee dishonesty insurance coverage. Such coverage has no bearing on any allegations of liability for mismanagement of benefit plan assets, or the decision to utilize a TPA, for example.

Additionally, until recently, large fiduciary liability claims were unheard of, and perhaps not really thought possible. Also, with the demands of employees relating to benefit plan options, enrollment periods and continuous changes in individual coverage details, many human resources managers are just too busy to dwell on possible liability scenarios. We learn our best lessons through our shortcomings, and this is undoubtedly true with understanding the liabilities of being a fiduciary.

Many sellers of liability insurance products do not understand the nuances of ERISA and fiduciary liability insurance. As “generalists,” many otherwise well-qualified agents are just too busy taking care of business to get involved with coverage details of fiduciary liability insurance. As a result, many organizations purchase and maintain relatively low limits, without any detailed thought toward limits benchmarking or individual employer exposure aspects.

So, for many employers fiduciary liability insurance remains much of a mystery, both with respect to exposures, as well as appropriate insurance coverage. The ERISA legislation with all of its nooks and crannies and impending changes, such as the impending medical savings accounts, continue to increase and compound the liability exposures of corporate executives, and many of them remain blissfully unaware of the depth of these exposures, and their exposure of personal assets in connection therewith.

Dick Clarke is a senior vice president in the Atlanta office of J. Smith Lanier & Co., a regional broker with offices in the southeastern U.S.