On November 26, 2002, the President signed into law the Terrorism Risk Insurance Act of 2002 (Pub. L. 107-297, 116 Stat. 2322) [TRIA]. TRIA created a temporary federal program that provides for a transparent system of shared public and private compensation for certain insured losses resulting from a certified act of terrorism. The Secretary of the Treasury administers the program with the assistance of the Federal Insurance Office.
The Terrorism Risk Insurance Act was enacted in 2002 to provide a federal level of back-up protection against certified acts of terrorism for all commercial property and casualty lines except for Workers Compensation and against certified acts of terrorism and war risks for Workers Compensation.
The covered lines of the insurance part of the Terrorism Risk Insurance Act were modified to cover most, but not all, commercial property and casualty lines.
Originally, the program was set to expire in 2005. However, legislative action intervened as follows:
So the Terrorism Risk Insurance Act has had extensions due to the environment of the world we live in today.
All insureds and applicants requesting eligible lines of commercial lines property and casualty coverage must be offered terrorism coverage. An exception exists for parties who have arranged for coverage as a captive or via self-insurance.
Insurers must use a disclosure form to notify its policyholders about the availability of terrorism coverage when coverage is offered and also at each renewal. The form must offer each policyholder a chance to accept or reject the TRIA coverage. If the coverage is accepted, the policyholder must pay the appropriate charge that is determined by the applicable insurer.
Policyholders must be given an endorsement that explains what actions are covered. They must be informed of the exact premium amount that will be charged to pay for the coverage. The policyholder must be provided the option to accept or reject the coverage. A rejection may be in writing or it can be indicated by a refusal to pay the premium.
If a claim occurs, the insurer will adjust losses using standard company procedures and then submit them to the government for reinsurance payment.
Most lines of commercial property and casualty including excess, workers compensation and directors and officers liability are covered by this Act. The following are specifically excluded:
Reporting Exception
Whether coverage is really excluded depends upon how the coverage premium is reported on the annual statement lines. If a line of business is reported under the annual statement line for package premiums, then that portion of coverage is subject to reimbursement under the Terrorism Risk Insurance Act.
For instance, if commercial auto coverage is provided in a package policy and the entire premium is reported under a package annual statement line, the auto coverage is subject to TRIA. Similarly, theft coverage and any incidental burglary and theft that is part of a package policy is subject to TRIA provided none of the premium is reported under the Burglary and Theft annual statement line.
Professional Liability is NOT subject to the reporting exception. No matter where and how professional liability premium is reported, it is ineligible for coverage under TRIA.
Farmowners Multiple Peril is a specific line on the annual statement. Any premium reported on this line is ineligible for TRIA coverage. However, other farm coverages remain subject to TRIA provided they are not providing personal lines coverage.
The Secretary of the Treasury in consultation with the Department of Homeland Security and the Department of Justice is responsible for determining whether a given act is certified (therefore qualifying for coverage). Prior to 2014 the certification required both the Secretary of State and the Secretary of Treasury to agree.
Now the decision rests entirely with the Secretary of Treasury who is required to only to consult with the other departments. As of the writing of this article, no event has been certified as a terrorist act. The certification guidelines specify the following:
Notes: The term air carrier is defined in section 40102 of title 49, United States code. The term vessel means a vessel sailing under the United States flag or that is based and taxed in the U.S. and subject to U.S. insurance regulations.
There is no timeline as to when the Secretary of Treasury must determine that a specific act is certified act of terror. The most recent reauthorization specifically calls for a report on how and when the certification should take place.
The insurer deductible is 20% of its direct earned premium for the calendar immediately prior to the program year. A program year extends from January 1 through December 31.
The coverage under this act does not begin until the aggregate industry insured losses for a certified act of terrorism exceeds the specified amounts:
Once the program trigger occurs, an insurer can collect coverage of up to 85% of the loss but only after its deductible has been satisfied. Starting in 2016 the percentage will drop by 1% per year until it is at 80% in 2020.
The most that can be paid by all insurers plus the federal government in a single program year is $100 billion. However, before an insurer can move under this cap, it must satisfy its insurer deductible.
The act addresses the concern that some may be paid 100% while others may not be paid at all because of the $100 billion cap. That is addressed within the regulations. The Department of Treasury will establish a pro rata loss percentage (PRLP) that the insurance companies would apply to any adjusted loss. In this manner all insureds would benefit from the cap. The PRLP is to be set conservatively low so that it can be readjusted as further data arrives and additional loss amounts paid out.
If the federal government makes terrorism loss payments, they have the right to recoup those losses. However, once the insurance marketplace pays $35.5 billion, as of plan year 2018, for certified terrorism losses in a given year, there will be no recoupment. The act outlines how the recoupment (also called terrorism loss risk-spreading premiums) amounts are to be collected under various circumstances.
The TRIPRA recoupment is $35.5 billion in 2018 and will be 37.5 in 2019. After 2019, the recoupment is a calculated amount. The maximum recoupment for a calendar year after 2019 is calculated as follows:
The Secretary of Treasury has the responsibility to recoup a portion of any terrorism loss payouts. If certain conditions exist, the Secretary can require that insurers add an assessment of up to 3% to its policies. This assessment (surcharge) must be applied to the policy year following a government request for recoupment.
The goal of Congress is to eventually eliminate this program once the private insurance market has had sufficient time to properly evaluate the exposure. To this end, a mandatory collection of data is being required. TRIA purchases must be collected and include information regarding geographic locations where the coverage is purchased, the percentage of offers being accepted and terrorism reinsurance purchases that are finalized.
This information must be submitted to congress annually starting in June of 2016. An advisory committee is being formed to aid in encouraging the private market to be more involved in this coverage.
If a customer is currently written on a policy where coverage is available under Terrorism Risk Insurance Act, the customer must be offered terrorism coverage. However, if the coverage is not subject to TRIA, offering coverage is not required. A company may choose to develop rates and provide coverage for lines of insurance that aren’t subject to TRIA, but the coverage would not be eligible for Terrorism Risk Insurance Act reinsurance.
If a customer loses coverage with the renewing carrier, the carrier is required to notify the customer of the reduction of coverage. However, if an agency writes a new customer or switches an existing customer from one company to another, the agency is, generally, responsible for notifying the customer of the reduction of coverage.
We hope this article on Terrorism Risk Insurance Act was informative. As a business owner, protecting your assets is important. With Terrorism Risk Insurance Act, you can protect your most important assets if they are damaged in a terrorist attack.
