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HOW TO CREATE A MORE ROBUST AND 

PRIVATE FLOOD INSURANCE MARKETPLACE 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

HOUSING AND INSURANCE 

OF THE

COMMITTEE ON FINANCIAL SERVICES 

U.S. HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTEENTH CONGRESS 

SECOND SESSION 

JANUARY 13, 2016 

Printed for the use of the Committee on Financial Services 

Serial No. 114–68 

( 

(II) 

HOUSE COMMITTEE ON FINANCIAL SERVICES 

JEB HENSARLING, Texas, Chairman 

PATRICK T. MCHENRY, North Carolina, 

Vice Chairman 

PETER T. KING, New York 

EDWARD R. ROYCE, California 

FRANK D. LUCAS, Oklahoma 

SCOTT GARRETT, New Jersey 

RANDY NEUGEBAUER, Texas 

STEVAN PEARCE, New Mexico 

BILL POSEY, Florida 

MICHAEL G. FITZPATRICK, Pennsylvania 

LYNN A. WESTMORELAND, Georgia 

BLAINE LUETKEMEYER, Missouri 

BILL HUIZENGA, Michigan 

SEAN P. DUFFY, Wisconsin 

ROBERT HURT, Virginia 

STEVE STIVERS, Ohio 

STEPHEN LEE FINCHER, Tennessee 

MARLIN A. STUTZMAN, Indiana 

MICK MULVANEY, South Carolina 

RANDY HULTGREN, Illinois 

DENNIS A. ROSS, Florida 

ROBERT PITTENGER, North Carolina 

ANN WAGNER, Missouri 

ANDY BARR, Kentucky 

KEITH J. ROTHFUS, Pennsylvania 

LUKE MESSER, Indiana 

DAVID SCHWEIKERT, Arizona 

FRANK GUINTA, New Hampshire 

SCOTT TIPTON, Colorado 

ROGER WILLIAMS, Texas 

BRUCE POLIQUIN, Maine 

MIA LOVE, Utah 

FRENCH HILL, Arkansas 

TOM EMMER, Minnesota 

MAXINE WATERS, California, Ranking 

Member 

CAROLYN B. MALONEY, New York 

NYDIA M. VELA ́ ZQUEZ, New York 

BRAD SHERMAN, California 

GREGORY W. MEEKS, New York 

MICHAEL E. CAPUANO, Massachusetts 

RUBE ́ N HINOJOSA, Texas 

WM. LACY CLAY, Missouri 

STEPHEN F. LYNCH, Massachusetts 

DAVID SCOTT, Georgia 

AL GREEN, Texas 

EMANUEL CLEAVER, Missouri 

GWEN MOORE, Wisconsin 

KEITH ELLISON, Minnesota 

ED PERLMUTTER, Colorado 

JAMES A. HIMES, Connecticut 

JOHN C. CARNEY, JR., Delaware 

TERRI A. SEWELL, Alabama 

BILL FOSTER, Illinois 

DANIEL T. KILDEE, Michigan 

PATRICK MURPHY, Florida 

JOHN K. DELANEY, Maryland 

KYRSTEN SINEMA, Arizona 

JOYCE BEATTY, Ohio 

DENNY HECK, Washington 

JUAN VARGAS, California 

SHANNON MCGAHN, Staff Director 

JAMES H. CLINGER, Chief Counsel 

(III) 

SUBCOMMITTEE ON HOUSING AND INSURANCE

BLAINE LUETKEMEYER, Missouri, Chairman 

LYNN A. WESTMORELAND, Georgia, Vice 

Chairman 

EDWARD R. ROYCE, California 

SCOTT GARRETT, New Jersey 

STEVAN PEARCE, New Mexico 

BILL POSEY, Florida 

ROBERT HURT, Virginia 

STEVE STIVERS, Ohio 

DENNIS A. ROSS, Florida 

ANDY BARR, Kentucky 

KEITH J. ROTHFUS, Pennsylvania 

ROGER WILLIAMS, Texas 

EMANUEL CLEAVER, Missouri, Ranking 

Member 

NYDIA M. VELA ́ ZQUEZ, New York 

MICHAEL E. CAPUANO, Massachusetts 

WM. LACY CLAY, Missouri 

AL GREEN, Texas 

GWEN MOORE, Wisconsin 

KEITH ELLISON, Minnesota 

JOYCE BEATTY, Ohio 

DANIEL T. KILDEE, Michigan 

(V) 

C O N T E N T S 

Page 

Hearing held on: 

January 13, 2016 .............................................................................................. 1 

Appendix: 

January 13, 2016 .............................................................................................. 41 

WITNESSES 

WEDNESDAY, JANUARY 13, 2016 

Birnbaum, Birny, Executive Director, Center for Economic Justice ................... 9 

Bradshaw, Steven, Executive Vice President, Standard Mortgage, on behalf 

of the Mortgage Bankers Association (MBA) ..................................................... 6 

Kelley, Brady, Executive Director, National Association of Professional Surplus Lines Offices (NAPSLO) .............................................................................. 8 

Miller, Teresa D., Commissioner, Pennsylvania State Insurance Department, 

on behalf of the National Association of Insurance Commissioners (NAIC) ... 4 

APPENDIX 

Prepared statements: 

Birnbaum, Birny ............................................................................................... 42 

Bradshaw, Steven ............................................................................................. 63 

Kelley, Brady .................................................................................................... 68 

Miller, Teresa D. ............................................................................................... 129 

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

Luetkemeyer, Hon. Blaine: 

Letter from PCI, dated June 25, 2015 ............................................................ 135 

Letter from the ABA, dated July 7, 2015 ....................................................... 136 

Letter from the AIA, dated January 13, 2016 ................................................ 137 

Letter from the Big ‘‘I’’, dated July 13, 2015 .................................................. 139 

Letter from Birny Birnbaum, Center for Economic Justice, containing 

supplemental comments for his testimony at the hearing, dated February 2, 2016 ................................................................................................. 140 

Letter from the Council of Insurance Agents and Brokers, dated July 

16, 2015 .......................................................................................................... 145 

Letter from the Financial Services Roundtable, dated July 27, 2015 .......... 146 

Letter from the MBA, dated June 30, 2015 ................................................... 147 

Letter from NAIC and the Center for Insurance Policy and Research, 

dated July 29, 2015 ....................................................................................... 149 

Letter from NAMIC, dated July 20, 2015 ...................................................... 151 

Letter from NAPSLO ....................................................................................... 153 

Letter from the NAR, dated July 20, 2015 ..................................................... 154 

Letter from the NMHC and the NAA, dated January 13, 2016 ................... 155 

Letter from the National Association of Professional Insurance Agents, 

dated July 7, 2015 ......................................................................................... 157 

Letter from the Reinsurance Association of America, dated June 30, 

2015 ................................................................................................................ 158 

Letter from SmarterSafer.org, dated July 21, 2015 ...................................... 159 

(1) 

HOW TO CREATE A MORE ROBUST AND 

PRIVATE FLOOD INSURANCE MARKETPLACE 

Wednesday, January 13, 2016 

U.S. HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON HOUSING

AND INSURANCE, COMMITTEE ON FINANCIAL SERVICES, Washington, D.C. 

The subcommittee met, pursuant to notice, at 9:19 a.m., in room 

2128, Rayburn House Office Building, Hon. Blaine Luetkemeyer 

[chairman of the subcommittee] presiding. 

Members present: Representatives Luetkemeyer, Garrett, Pearce, 

Posey, Hurt, Ross, Barr, Rothfus, Williams; Cleaver, Velazquez, 

Green, Beatty, and Kildee. 

Ex officio present: Representatives Hensarling and Waters. 

Also present: Representative Murphy. 

Chairman LUETKEMEYER. Okay. Mr. Cleaver managed to make it 

through our Washington traffic here and has joined us. So let’s call 

the subcommittee to order. 

The Subcommittee on Housing and Insurance will come to order. 

Today’s hearing is entitled, ‘‘How to Create a More Robust and Private Flood Insurance Marketplace.’’ 

Without objection, the Chair is authorized to declare a recess of 

the subcommittee at any time. 

Before we begin today, I would like to thank the witnesses for 

appearing today. I look forward to your testimony. 

And I now recognize myself for 21⁄2 minutes to give an opening 

statement. 

Flooding has devastated large areas of my home State of Missouri as well as the neighboring State of Illinois, tragically claiming lives and causing millions of dollars of damage. In the past several months, we have seen similar situations from South Carolina 

to southern California. Unfortunately, these are not isolated incidents. Flooding continues to be the most prevalent natural disaster 

in the United States. As communities in Missouri and across the 

Nation begin to put their lives back together, it is fitting that this 

subcommittee continues to examine flood insurance and the current 

construct of the National Flood Insurance Program (NFIP). Yesterday, this subcommittee held a hearing to discuss the state of flood 

insurance in America. 

Last week, I convened a roundtable discussion on flood mapping. 

What has become evident is that total reliance on insurance coverage for the NFIP is inadequate. Members agree across party lines 

that policyholders, communities, and taxpayers deserve better. One 

2 

of the first steps toward reform is to allow policyholders to access 

market-based flood insurance policies. 

H.R. 2901, the Flood Insurance Market Parity and Modernization 

Act of 2015, introduced by the gentleman from Florida, Mr. Ross, 

and the gentleman from Florida, Mr. Murphy, would allow for 

greater consumer choice and private market participation. It does 

so under the close supervision of the State Insurance Commissioners, the foundation of the regulatory system we have worked in 

an overwhelming bipartisan fashion to protect. By removing the 

ambiguity around what qualifies as acceptable flood insurance, 

property owners will be assured of greater options and flexibility 

in their choice of policies. Providing private competition to the publicly administered NFIP will also promote competition in markets 

which have previously been underserved. 

I owe it to my constituents back in Missouri, and to all Americans who have suffered from flood damage, to create a program for 

flood insurance that is stable, accessible, and cost-effective. 

Before I yield to the ranking member, I ask unanimous consent 

to insert into the record letters on H.R. 2901 from the NAIC, PCI, 

AIA, NAMIC, NAPSLO, the Big ‘‘I,’’ CIAB, the National Association 

of Professional Insurance Agents, the Financial Services Roundtable, the SmarterSafer Coalition, the Reinsurance Association of 

America, the National Association of REALTORS®, MBA, ABA, 

and the National Multifamily Housing Council and the National 

Apartment Association. As you can see, there is wide support 

across the industry spectrum for this alternative to our present 

system. 

Without objection, it is so ordered. 

The Chair now recognizes the ranking member of the subcommittee, the gentleman from Missouri, Mr. Cleaver, for 5 minutes for an opening statement. 

Mr. CLEAVER. Thank you, Mr. Chairman. Let me, again, thank 

you, as I did yesterday, for the very proactive step you have taken 

toward dealing with the issue of insurance before it becomes 

caught up in a critical year where we are not going to have a lot 

of workdays. And I think it is appropriate for us to continue, as you 

have already begun, hearing issues that relate to flood insurance. 

We discussed yesterday, I think rather broadly, the NFIP, and we 

highlighted areas where there is room for improvement and discussed ways in which the NFIP could be reauthorized. 

Today is our second hearing on flood insurance, and today we 

will be discussing the role of private insurance in the flood insurance market, which is a significant issue and a significant concern. 

And we dealt with it yesterday, but I think the key to this whole 

issue is whether or not the private sector is interested in and willing to become intimately involved in this program. We have attempted this over the years. The program was created in 1968 to 

provide flood coverage to consumers who were unable to get coverage from the very limited private market. The NFIP is responsible not only for providing flood insurance, but for developing flood 

maps and promoting mitigation activities. 

One of the things that I think we all have come to see is that 

flooding can occur anywhere. I grew up in a flat part of Texas, the 

Dallas area on toward probably until you get to Palo Duro Canyon 

3 

around Amarillo is just flat. And last summer, in this flatland, 

there was all kinds of flooding. And we do know that it can and 

does occur everywhere, and can have a devastating impact on our 

communities. But one of the things we have also learned is that 

when these major events occur, like Hurricane Katrina, it pretty 

much decimates any private participation and the government has 

had to do a lot of backstopping, both for Sandy and Katrina. 

And then as we begin to discuss reauthorization of the program, 

I think we have to ensure products remain affordable and available. Our conversation must also focus on the importance of obtaining accuracy in our mapping, which is a really big issue in the 

rural part of the 5th District, which I represent in Missouri. And 

as mapping and risk technology has developed since the creation 

of the NFIP, the appetite for private insurers to re-enter the flood 

market has grown. 

And so, I look forward to hearing our witnesses today discuss 

ways in which the private role in flood insurance could grow. 

Thank you, Mr. Chairman. I yield back the balance of my time. 

Chairman LUETKEMEYER. The gentleman yields back. With that, 

the Chair now recognizes the gentleman from Florida, Mr. Ross, for 

21⁄2 minutes for an opening statement. 

Mr. ROSS. Thank you, Mr. Chairman. And thank you very much 

for holding this important hearing about an issue to which I am 

dedicated. And that is, providing American homeowners more affordable consumer options in the flood insurance marketplace. I 

would also like to thank our distinguished guests for their testimony today, and Representative Patrick Murphy for joining me in 

introducing the Flood Insurance Market Parity and Modernization 

Act, which we will be discussing this morning. 

Since joining the House Financial Services Committee, I have 

urged my colleagues to work with me to address the shortcomings 

of the current government flood insurance model known as the National Flood Insurance Program. Yesterday, we held our first in a 

series of hearings to examine the problems with this Federal program, and to explore solutions that benefit homeowners. Floridians 

and Americans across the country would greatly benefit from more 

choices when it comes to flood insurance policies, and private competition in this market will lead to greater innovations and more 

affordable and comprehensive policies for consumers. 

Unfortunately, regulatory barriers and the bias of regulators favoring NFIP policies have prevented the development of a private 

flood insurance marketplace. This was not the intention of the 

Biggert-Waters Act. Rather, it was an unintended consequence. 

With Florida homeowners in mind, I introduced H.R. 2901, the 

Flood Insurance Market Parity and Modernization Act. This bipartisan legislation will remove the unnecessary regulatory barriers 

that are hindering consumers’ flood insurance options. 

As the primary insurance regulator for my home State of Florida, 

I am proud that our Commissioner of Insurance Regulation, Kevin 

McCarty, has offered his full support of this legislation. I urge my 

colleagues on both sides of the aisle to join me in enacting this 

commonsense, bipartisan legislation that will encourage the expansion of a well-regulated, more affordable private flood insurance option for homeowners. And I yield back. 

4 

Chairman LUETKEMEYER. The gentleman yields back. 

With that, we want to begin our testimony, and we welcome all 

of the panelists today: Ms. Teresa Miller, Commissioner, Pennsylvania State Insurance Department, testifying on behalf of the National Association of Insurance Commissioners; Mr. Steven Bradshaw, Executive Vice President, Standard Mortgage, on behalf of 

the Mortgage Bankers Association; Mr. Brad Kelley, Executive Director, National Association of Professional Surplus Lines Offices; 

and Mr. Birny Birnbaum, Executive Director, Center for Economic 

Justice. 

Each of you will be recognized for 5 minutes to give an oral presentation of your testimony. And without objection, your written 

statements will be made a part of the record. Just a quick primer 

on the lighting system: green means go; when you get to yellow, 

you have one minute to wrap up; and when it turns red, I am the 

one who has the last word. So we will hopefully stop there shortly 

thereafter. 

With that, I want to recognize the gentleman from Pennsylvania, 

Mr. Rothfus, to introduce our first witness. 

Mr. ROTHFUS. Thank you, Mr. Chairman. 

It is my privilege to welcome Pennsylvania’s Insurance Commissioner, Teresa Miller, to the Financial Services Committee today. 

Commissioner Miller was confirmed to her role in June of last year. 

In that capacity, see oversees the fifth largest insurance market in 

the country, and the fourteenth largest in the world in terms of 

premium volume. This is a significant and challenging responsibility in our large and diverse State. 

Fortunately, Commissioner Miller brings years of experience to 

her new appointment and to our subcommittee today, having previously served in Oregon’s insurance division as well as in the private sector. She will be speaking to us today not just as Pennsylvania’s Insurance Commissioner, but also as an active NAIC member. 

Commissioner Miller serves on the Federal Advisory Committee 

on Insurance (FIO), providing advice and recommendations to the 

Federal Insurance Office on issues such as automobile insurance 

affordability, and international insurance developments. Given 

Pennsylvania’s history of flooding, and ongoing concerns about the 

impact of flood insurance policy on its citizens, I expect Commissioner Miller to provide welcome insight into the future of the 

NFIP and impactful reforms for the committee to consider. Thank 

you again for coming, Commissioner Miller, and I yield back. 

Chairman LUETKEMEYER. With that, Ms. Miller, you are recognized for 5 minutes. 

STATEMENT OF TERESA D. MILLER, COMMISSIONER, PENNSYLVANIA STATE INSURANCE DEPARTMENT, ON BEHALF OF 

THE NATIONAL ASSOCIATION OF INSURANCE COMMISSIONERS (NAIC) 

Ms. MILLER. Good morning. Thank you, Chairman Luetkemeyer, 

and Ranking Member Cleaver. And thank you, Congressman 

Rothfus, for your kind introduction. I appreciate the opportunity to 

testify today to provide State insurance regulators’ views on issues 

surrounding the development of a private flood insurance market. 

Facilitating increased private sector involvement in the sale of 

5 

flood insurance will help promote consumer choice and spur competition. It will also provide homeowners necessary coverage, often 

at greatly reduced costs. In Pennsylvania, we are finding that in 

many cases, private carriers are willing to offer comparable coverage at substantially lower cost than NFIP. In one instance, a 

property owner would have paid a $7,500 annual premium with the 

NFIP, but found private coverage for a little over $1,400. Another homeowner was quoted a $6,000 annual premium by NFIP, but found a private policy for $900. Like other types of new 

coverages, private flood insurance is being developed and offered 

first by the surplus lines insurers. These insurers typically insure 

unique or otherwise difficult to underwrite risks that the admitted 

market is at least initially reluctant to insure. As detailed in my 

written testimony, we have significant authorities to ensure consumers in the surplus lines market are well-protected. These authorities include capital, surplus, and eligibility requirements on 

surplus lines carriers, as well as the ability to hold both the insurer 

and the broker responsible for any misconduct. 

As the private flood insurance market grows and more companies 

offer coverage, including admitted companies, our regulation will 

continue to evolve to meet the size and the breadth of the market 

as well as the needs of consumers. However, more can be done to 

help facilitate the development of this market, providing consumers 

more choices and more affordable coverage. 

One of the objectives of the Biggert-Waters Act was to create opportunities for the growth of the private market as an alternative 

to the NFIP. Unfortunately, the definition of and the regulatory environment surrounding private flood insurance is at odds with this 

objective, making it more difficult for insurance regulators to protect consumers and ensure availability. The Flood Insurance Market Parity and Modernization Act addresses these concerns, which 

is why I am here today to support it. 

Specifically, we find it troubling that Biggert-Waters empowered 

Federal banking and housing regulators and the GSEs to apply 

their own requirements related to the financial solvency strength 

or claims-paying ability of private insurance companies from which 

they will accept private flood insurance. This is highly problematic 

as banking and housing regulators have neither the expertise nor 

the experience to regulate insurance companies or markets. Moreover, they have regulatory objectives that while laudable, are fundamentally different than insurance consumer protection and fostering competitive insurance markets. 

They are simply ill-suited to regulate insurance, and it is inappropriate for them to have the authority to substitute their judgment for those charged under the law with regulating insurance 

products and protecting policyholders. To address this, H.R. 2901 

includes important language clarifying that State insurance regulators have the same authority and discretion to regulate private 

flood insurance as they have to regulate other similar insurance 

products and markets. We very much appreciate these clarifications as they are critical for NAIC’s support for this legislation. 

Another impediment for entrants into the market is the vague 

definition of private flood insurance included in Biggert-Waters. In 

order for a private market to evolve, insurers need flexibility to taiVerDate Nov 24 2008 18:55 Apr 20, 2017 Jkt 099799 PO 00000 Frm 00011 Fmt 6633 Sfmt 6633 K:\DOCS\99799.TXT TERI
6 

lor insurance products to meet consumer needs. Biggert-Waters 

does not allow for innovation, but rather focuses on ensuring policies don’t deviate from its rigid criteria. This is despite the fact 

that private insurers may be able to offer additional coverage features or greater limits at a more affordable price. 

H.R. 2901 provides a clearer definition of private flood insurance 

by clarifying that State insurance laws solely govern over the insurance transaction. It will ensure that State insurance regulators 

have the flexibility to approve private flood insurance coverage that 

is responsive to the needs of their States and constituents, while 

complying with their State’s regulatory requirements. These clarifications will assist in removing the restrictive and confusing language in current law to help prompt more insurers to enter the 

market if they are willing. 

In conclusion, State insurance regulators support efforts to further develop the private market to help provide consumers with access to additional options for flood insurance products and coverage 

at potentially more affordable prices. 

We appreciate very much Congressmen Ross and Murphy’s leadership on H.R. 2901, and look forward to continuing to work together as this bill moves forward. I appreciate very much the opportunity to be here on behalf of the NAIC. Thank you. 

[The prepared statement of Commissioner Miller can be found on 

page 129 of the appendix.] 

Chairman LUETKEMEYER. Thank you, Ms. Miller. 

Mr. Bradshaw, you are now recognized for 5 minutes. 

STATEMENT OF STEVEN BRADSHAW, EXECUTIVE VICE PRESIDENT, STANDARD MORTGAGE, ON BEHALF OF THE MORTGAGE BANKERS ASSOCIATION (MBA) 

Mr. BRADSHAW. Good morning, Chairman Luetkemeyer, Ranking 

Member Cleaver, and members of the subcommittee. My name is 

Steve Bradshaw, and I appreciate the opportunity to testify today 

on behalf of the Mortgage Bankers Association. 

I am currently executive vice president of Standard Mortgage 

Corporation, a lender and servicer headquartered in New Orleans, 

Louisiana. The company was founded in 1925 and currently services approximately 28,000 residential mortgage loans throughout 

the southeast. 

This past August marked the 10th anniversary of one of the most 

significant flood events in U.S. history, Hurricane Katrina. We experienced the massive devastation firsthand. Approximately 3,500 

of our servicing customers sustained significant flood damage to 

their homes. And on a more personal note, nearly two-thirds of our 

staff lost their homes. 

As a result of Hurricane Katrina and two other significant 

storms in the fall of 2005, more than one million housing units 

were damaged across five States. There is no doubt that the National Flood Insurance Program was the key component to the Gulf 

Coast recovery, just as it has been for other communities across the 

country that have sustained major flooding or are flooding today. 

But there is also no doubt that the NFIP needs to be reformed. The 

program is now $23 billion in debt and is simply not sustainable 

7 

as it is. The Federal Government cannot and should not bear the 

full burden of post-disaster recovery. 

Congress recognized when it passed Biggert-Waters that private 

sector flood insurance must be allowed to develop in order to ensure a stable, sustainable, and affordable market. Expanding flood 

insurance options will make it easier for more homeowners to obtain flood insurance. And a competitive flood insurance market will 

expand available insurance options, lower cost, and increase the 

number of at-risk properties that are insured. In other words, we 

are expanding the pool. 

For example, many homes that were destroyed in Katrina were 

not located in a special flood hazard area. Homes outside those 

zones are not required to have flood insurance. As a result, mortgage servicers like us were liable for the cost when those homes 

were wiped out. The MBA believes that increased private sector involvement can also serve to shift some of the burden—not all of the 

burden—of post-disaster recovery away from the Federal Government and to the private sector. This will limit taxpayer exposure 

to future flood losses. 

In light of this, we support H.R. 2901, the Flood Insurance Market Parity and Modernization Act. The bill provides two important 

improvements to the NFIP. First, the bill clarifies what constitutes 

an acceptable private flood insurance policy by providing a clear 

definition of private flood insurance. This will make it easier for 

lenders to accept private policies to satisfy the mandatory purchase 

requirement. 

Second, H.R. 2901 addresses lenders’ concerns regarding continuous coverage requirements. Under current law, it is unclear 

whether someone previously covered under an NFIP policy who 

moves to a private sector policy would be eligible to return to the 

NFIP policy at their previous rate. We are pleased that H.R. 2901 

eliminates this disincentive for consumers to choose a private policy. It does so by clarifying that private flood insurance satisfies 

the continuous coverage requirement. 

In summary, MBA supports H.R. 2901 as a simple way to encourage the growth of a competitive private flood insurance market. 

Increased private sector involvement will hopefully expand available insurance options for borrowers, lower cost for consumers, and 

reduce taxpayer exposure to flood losses over time. We are especially grateful for the leadership shown by Representatives Dennis 

Ross and Patrick Murphy on this legislation, and we urge the subcommittee to approve it. 

Thank you, again, for the opportunity to testify today. The MBA 

commends your efforts to expand the private flood insurance market, and I look forward to any questions you may have. 

[The prepared statement of Mr. Bradshaw can be found on page 

63 of the appendix.] 

Chairman LUETKEMEYER. Thank you, Mr. Bradshaw. 

Mr. Kelley, you are recognized for 5 minutes. 

8 

STATEMENT OF BRADY KELLEY, EXECUTIVE DIRECTOR, NATIONAL ASSOCIATION OF PROFESSIONAL SURPLUS LINES 

OFFICES (NAPSLO) 

Mr. KELLEY. Good morning, Chairman Luetkemeyer, Ranking 

Member Cleaver, Chairman Hensarling, and members of the subcommittee. My name is Brady Kelley. I am the executive director 

of the National Association of Professional Surplus Lines Offices 

based in Kansas City, Missouri. Thank you for inviting me here 

today to testify on H.R. 2901. 

Surplus lines is a $40.2 billion market. And NAPSLO members 

broker and underwrite a very high proportion of that. Our market, 

often referred to as the nonadmitted market, exists to provide insurance coverage for nonstandard and complex risks, and to provide cover for risks that exceed what the standard market is either 

willing or able to underwrite. It is the State’s approach to regulating that market, which includes providing what is freedom from 

rate and form regulation, that allows it to work as this effective 

supplement. This fundamental principle is part and parcel to its effective operation and regulation. 

Consider, for example, the impact of catastrophic losses that 

cause standard carriers to either withdraw or significantly curtail 

underwriting in certain regions of the country, or in certain lines 

of business. Exhibit one of our testimony tries to illustrate that. 

Market responses to catastrophic events by measuring the rates at 

which surplus lines premium has shifted either up or down over 

time in relation to total U.S. property casualty premium. You see 

events like the Northridge earthquake, 9/11, and hurricanes in 

2005. They were all followed by very clear spikes in surplus lines 

premium, spikes that exceed the growth of the overall property casualty market. And then you see the reverse being true in years following that where catastrophe losses are lower or as the standard 

market re-adjusts. Without this safety net, consumers would be left 

without coverage for their commercial risks and/or their personal 

assets. 

These same fundamentals apply in the case of private flood insurance. Consumers whose flood risks do not fit within the terms 

and limits of the NFIP, or whose risks are declined by the standard 

market, will look to our market, surplus lines, for the solution. It 

is important to point out that this is not new. Why might that be? 

Property exposures may exceed the $250,000 limit within the NFIP 

on a residential property, or the half million dollar limit on a commercial property. Homeowners may want replacement coverage 

rather than actual cash value for their property. They might want 

to insure additional structures, or list other properties on one policy. They might need additional living expense, basement exposure, 

and/or business interruption for a commercial entity. 

These examples, coupled with communities or zones that are not 

eligible for NFIP coverage, mean consumer alternatives are absolutely essential. Our written testimony includes some facts and figures about the size of the surplus lines flood insurance market, and 

while you will see that they represent a relatively small proportion 

of the overall market, without it, consumers who need it would 

have no alternative. 

9 

This is precisely why we strongly support H.R. 2901. Although 

our market is currently allowed to provide private flood insurance, 

the 2012 law created uncertainty for lenders and consumers. Specifically, lenders became uncertain about accepting surplus lines 

policies in light of the law’s requirements, and because it authorized Federal banking and housing regulators to apply their own requirements on private insurance companies. No regulations have 

been developed since that time. And it is prolonging this uncertainty. Uncertainty is the problem, but H.R. 2901 is the fix. It simply ensures our market’s continued role in solving unique and complex flood risks that exceed or differ from the options available 

through either the NFIP or the standard market. 

In addition, H.R. 2901 maintains the authority and primacy of 

State Insurance Commissioners in regulating private flood insurance. Because of their experience, their strong track record, and 

their success in regulating the U.S. business, we obviously strongly 

support that. 

We have also provided written testimony describing how the 

States regulate the surplus lines market. I think Commissioner 

Miller has already done a pretty thorough job of describing that. 

So let me simply reiterate the importance and degree of each 

State’s authority over both the insurance company and the surplus 

lines broker in a surplus lines transaction. 

As a result, the 2015 A.M. Best report illustrates an exemplary 

solvency record for our market. It is included as another exhibit in 

the testimony. H.R. 2901 will solve the problems and concerns 

shared by the insurance and banking industries by preserving our 

market’s ability to offer options to consumers. Without it, consumers who need it will have no alternative. Legislators on both 

sides of the aisle have expressed a desire to not just extend, but 

to also improve the NFIP going forward. And I think the witnesses 

over the last couple of days certainly agree with that. We believe 

H.R. 2901 is a positive step in that direction because it enables the 

private market to develop, and it allows the NFIP to focus on those 

properties with repetitive losses and their goal of flood loss mitigation and prevention. 

We appreciate Congressmen Ross and Murphy for introducing 

the bill. Again, we thank you for the opportunity to be here. We 

look forward to working with you as this bill moves forward. Thank 

you. 

[The prepared statement of Mr. Kelley can be found on page 68 

of the appendix.] 

Chairman LUETKEMEYER. Thank you, Mr. Kelley. 

And Mr. Birnbaum, you are recognized for 5 minutes. 

STATEMENT OF BIRNY BIRNBAUM, EXECUTIVE DIRECTOR, 

CENTER FOR ECONOMIC JUSTICE 

Mr. BIRNBAUM. Thank you. Chairman Luetkemeyer, Ranking 

Member Cleaver, and members of the subcommittee, my name is 

Birny Birnbaum. Thank you for the invitation to speak to you 

today. 

The availability and affordability of flood insurance is a critical 

issue for individual and community well-being, economic development, and a resilient and sustainable future. I have worked on 

10 

these issues for over 20 years as an insurance regulator, consulting 

economist, and consumer advocate. Your invitation to testify asked 

whether the NFIP, as it is presently constituted, represents an 

ideal model for the effective protection of residential and commercial property owners from damages relating to flooding. The answer 

to that question is a resounding ‘‘no’’ for a number of reasons. The 

primary problem of the NFIP is the multiple and conflicting goals 

that Congress has tasked the Program with, and the constraints 

and requirements Congress has placed on the Program. The starting point for Congress and the Federal Government should be a 

laser-like focus that Federal expenditures related to flood promote 

more resilient and sustainable homes, businesses, communities, 

and infrastructure against the peril of flood. 

With this as the clear goal, any proposal regarding the NFIP can 

be evaluated by asking, ‘‘Does this change promote resiliency and 

sustainability or not?’’ The reason why resiliency and sustainability 

must be the overarching goal for restructuring the NFIP is that 

there is no insurance mechanism—public, private, or combo—that 

will be able to finance increasingly frequent and severe flooding. 

And a focus on resiliency and sustainability means Federal expenditures as investments today to replace disaster relief expenditures 

tomorrow. 

The way forward: There is a great opportunity for greater reliance on private insurers and markets to provide flood insurance, 

but H.R. 2901 is not the approach to accomplish this. And certainly, it’s not the approach to make the NFIP more financially 

sound or achieve greater resiliency and sustainability. The best approach for Congress to achieve these goals is to require that flood 

be covered in standard residential and commercial property insurance policies, and subject to the same State-based regulatory 

framework that exists for homeowners and commercial property insurance today. 

There are four key actions needed by 2017: 

One, get the NFIP out of the business of being a flood insurance 

company by requiring that residential and commercial insurance 

policies sold by private insurers cover the peril of flood. That requirement turns flood back to the States where all other property 

insurance products and markets are regulated, and back to private 

insurers, re-insurers, and catastrophe models who have the capability and capital to provide flood coverage more comprehensively 

and efficiently than the Federal Government. 

Two, transition the NFIP from a direct provider of insurance to 

a mega-catastrophe re-insurer utilizing the successful model of the 

Terrorism Risk Insurance Program. 

Three, address the affordability problem of flood insurance with 

Federal, State, and local assistance outside of the insurance system, no-subsidies insurance pricing with an overwhelming emphasis on assistance for lost mitigation as the tool to create more affordable premiums. 

And four, reauthorize the NFIP during a period of transition. 

As we have seen over the last decade, the congressional changes 

to the NFIP have lurched from efforts that longer-term reform to 

responses to current crises, with the responses to current crises 

often contributing to bigger problems down the road. H.R. 2901 is 

11 

a response to a current issue. Federal agencies have been slow in 

promulgating rules regarding private flood insurance and surplus 

lines insurers see an opportunity to pick off NFIP policies that are 

mispriced due to NFIP rating practices. 

H.R. 2901 will not address the longer-term problems of the NFIP, 

will not meaningfully promote private market participation in the 

sale of flood insurance, and will create bigger problems in the future when a flood event occurs. H.R. 2901 attempts to encourage 

private flood by defining private flood to include surplus lines insurance for residential properties, and by eliminating Federal oversight, removing current consumer protection requirements for private flood, removing the authority of Federal agencies to implement those requirements, and removing the authority of Government-Sponsored Enterprises (GSEs) to establish standards for the 

claims-paying ability of insurers, which they already do now for 

hazard insurance. 

Surplus lines or nonadmitted carriers can be distinguished from 

admitted insurers in the following ways: Admitted insurers are licensed by a State insurance department to sell certain types of insurance. These insurers are subject to regulatory requirements for 

the filing and approval of policy forms and rates, are subject to the 

State’s consumer protection laws regarding unfair trade practices 

and unfair competition, and importantly, participate in the State 

guaranty fund, which pays claims in the event the admitted insurers become insolvent. 

In contrast, surplus lines insurers are not licensed by State insurance departments. Rather, the State department regulates surplus lines agents who are authorized to place coverage with a surplus line insurer on a list of acceptable insurers. Surplus lines policy forms and rates are not subject to regulatory oversight, and surplus lines insurers do not participate in State guaranty funds. 

I understand the theory behind H.R. 2901 is that admitted insurers are not willing to write private flood, but surplus lines insurers 

would be if certain requirements, such as comparability with the 

NFIP policy or claims settlement requirements, were relaxed. 

The story continues that once surplus lines insurers are offering 

private flood, admitted insurers will be more comfortable. I have 

seen no empirical evidence to remotely suggest admitted carriers 

will do as suggested. I have seen surplus lines insurers write business that admitted insurers would have written, and I have seen 

personalized business migrate from the admitted market to surplus 

lines when permitted to do so to take advantage of fewer consumer 

protection requirements. 

The actual results of these changes will be for surplus lines insurers to cherry-pick NFIP policies that are currently overpriced 

due to the NFIP’s broad rating scheme and loadings for contingency and reserves. While the surplus lines insurers take the profitable low-risk policies, the NFIP will become even more financially 

vulnerable as its premium revenue will decline far faster than its 

risk exposure. H.R. 2901 will not only create financial problems for 

the NFIP in the future, it will set the table for more problems— 

Chairman LUETKEMEYER. Mr. Birnbaum, can you wrap this up 

quickly? You are over— 

Mr. BIRNBAUM. Yes. 

12 

—when a flood occurs. Since the States don’t regulate policy 

forms, these policies can contain exclusions that a regulator would 

never approve, and a policy filed by admitted insurers. 

In summary, flood insurance markets, in particular, are not competitive. So unleashing unregulated insurers on vulnerable consumers without Federal oversight and without meaningful State 

oversight is a recipe for disaster. 

Thank you. 

[The prepared statement of Mr. Birnbaum can be found on page 

42 of the appendix.] 

Chairman LUETKEMEYER. Thank you, Mr. Birnbaum. 

We will begin our questioning. And I will start off. I recognize 

myself for 5 minutes. 

Ms. Miller, you made a comment a while ago with regards to the 

GSEs being able to regulate insurance versus the private market, 

which would have to be overseen by you. Can you explain what you 

are talking about there a little bit, because I think it is a key point 

of what we are looking at this morning with regards to regulatory 

oversight. 

Ms. MILLER. Absolutely. Thank you, Mr. Chairman. Banking and 

housing regulators have regulatory objectives that are simply fundamentally different than insurance consumer protection, and promoting competitive insurance markets. So, our view is that they 

are ill-suited to regulate insurance. And it is really inappropriate 

for them to be given the authority to substitute their judgment for 

those of us who are charged under the law with regulating insurance. State regulators have 140 years of regulating and supervising 

the business of insurance, and protecting policyholders and really 

balancing the availability of coverage with solvency. I think, to put 

it very bluntly, banking regulators don’t have a mandate of consumer protection. And State regulators, that is what we do. That 

is our charge. 

Chairman LUETKEMEYER. So basically, what you are saying is 

the GSEs are usurping your authority to be able to oversee and 

qualify the different policies of the private sector? Is that what you 

were just saying? 

Ms. MILLER. That is correct. 

Chairman LUETKEMEYER. Okay. Thank you. 

Mr. Bradshaw, you talked a little bit about some of the folks who 

were not covered by flood insurance, especially in Katrina. And you 

sort of alluded to the fact that there is concern there because flood 

affects a lot of people beyond the floodplain. So would you consider—or are you alluding to the fact that you would like to see everybody required to have this, or that the lenders have more leeway in requiring people to have flood insurance, or did I misunderstand what you just said? 

Mr. BRADSHAW. With regards to requiring everybody to have 

flood insurance, the answer to that is no, that is not the position 

of Standard Mortgage. It is certainly not the position of the Mortgage Bankers Association. With regards to expanding the options 

for insurance coverage to be available, we, Standard Mortgage, are 

very interested in that. 

During Katrina, there were a number of people who were flooded. Due to the nature of FHA insurance, just as an example, if 

13 

someone floods and they are not in a flood zone, so there is no flood 

insurance, and if they then abandon their home, then under the 

FHA program, it is up to Standard Mortgage to repair the home 

in order to file the claim against FHA. 

That puts us in the business of insuring FHA. So we believe with 

a new type of program that could be developed by private insurers, 

that other people may be interested in obtaining insurance even 

when they are outside the zone. 

Chairman LUETKEMEYER. Okay. Thank you. 

Mr. Kelley, Mr. Birnbaum made a statement a minute ago that 

caught my attention that surplus lines don’t belong to the Guaranty Associations of States. Did I understand that statement correctly, Mr. Birnbaum? Did you make that statement? 

Mr. BIRNBAUM. Yes. 

Chairman LUETKEMEYER. Okay. That is a very key point from 

the standpoint, I think, that surplus lines are where you look to 

be able to provide flood insurance. Is that the case, Mr. Kelley? 

Mr. KELLEY. It is the case. Surplus lines insurers do not—they 

are not backed by guaranty funds. But there is good reason for 

that. If you look at the types of coverages written in the surplus 

lines market, there are oftentimes not coverages that would fall 

under the general limits of the guaranty that exists for the standard market. You also have, again, the A.M. Best report that shows 

an incredible solvency record for the surplus lines market: 11 years 

of no financial impairments, compared to, I think, 207 impairments 

in the standard market over that same time period. 

If you look at the ratings of surplus lines carriers, they are all 

in the excellent-to-good category compared to ratings on the standard side that aren’t quite as good. So we tend to believe that coverage is typically inadequate for the size and limits of commercial 

policies covered by surplus lines carriers. We believe they don’t 

incentivize strong corporate financial operations. And guaranty 

funds, in our opinion, would add an unnecessary burden on the 

surplus lines consumer, given the stellar financial strength of the 

industry. 

Chairman LUETKEMEYER. Okay. Thank you. My time has expired. 

I recognize the ranking member, Mr. Cleaver from Missouri, for 

5 minutes. 

Mr. CLEAVER. Thank you, Mr. Chairman. 

Yesterday, I asked our witnesses if any of them believed that we 

needed to end the NFIP. And there were no hands raised. So I am 

interested in whether this panel sees it the same way. Do any of 

you believe that we need to eliminate the NFIP? Just raise your 

hand if you— 

Mr. BIRNBAUM. Yes. I think we need to eliminate the NFIP as 

a direct provider of insurance and transition it to a mega-reinsurer 

along the model of the Terrorism Risk Insurance program, because 

the private market is in a much better position to deliver the coverage of flood in the standard homeowners and commercial property insurance policies than the NFIP with a separate flood insurance program. 

Mr. CLEAVER. But wouldn’t the rates be higher for the consumers 

than they are right now for the NFIP? 

14 

Mr. BIRNBAUM. I would—no. Certainly for some. But for the vast 

majority of consumers, the rates would be less because the private 

market could deliver the coverage of flood far more efficiently. 

Number one, there are fewer administrative costs because you 

eliminate a second insurance policy. Number two, you eliminate a 

lot of claim settlement costs because you no longer have an insurance company and the NFIP both trying to settle a claim and deciding who is responsible for it. We saw problems with that after 

Hurricane Katrina, which is whether the insurers who are responsible for settling the claims were trying to say: Well, is it a claim 

that is wind that we cover, or is it a flood coverage that the NFIP 

will pay for? So there are a lot of reasons why the private market 

could introduce efficiencies that the NFIP couldn’t. 

So for the vast majority of consumers, the actual coverage for 

flood would be less expensive than from the NFIP. And, of course, 

there still remains the issue that for some consumers, it is 

unaffordable. And that still has to be addressed the same way it 

does for the NFIP. 

Mr. CLEAVER. Mr. Kelley, do you agree? And also, do you think 

that we would actually have consumers who would pay the full risk 

rate in substantial enough numbers to make the program work? 

Mr. KELLEY. I don’t agree. Sorry. I don’t agree that we need to 

eliminate the NFIP entirely. We certainly agree it needs to be reformed. I keep going back to this GAO report and the note that 

they made about subsidized properties counting for the majority of 

the repetitive loss properties in the market. And I heard it yesterday during the testimony as well. One percent of all NFIP policies 

count for 30 percent of all claims paid. So I think we have to face 

it there. That one percent category of property, no one is attracted 

in insuring those properties. And to think that you could come up 

with an actuarially sound rate that covers the risk of that property, 

I can’t imagine a consumer having the ability to afford that. 

So we believe there is a need for the NFIP to serve as some level 

of backstop. But we think you can focus it down on that category 

of risk. 

Mr. CLEAVER. So a hybrid? 

Mr. KELLEY. Maybe. I think, again, H.R. 2901 is going to shift 

as much business as possible to the private industry. But let’s face 

it. Private industry is not—they are going to have trouble insuring 

that one percent category as well without a pretty reasonable rate. 

So if you focus on that one percent category, maybe focusing NFIP 

on their mission of mitigating flood losses, preventing flood losses, 

that, in our opinion, is a better focus of a reformed NFIP. 

Mr. CLEAVER. So, Mr. Bradshaw, do you think if shifting exposure to the private sector is going to be just too much for them to 

bear—we have tried this before. So, we are talking about shifting 

more and more exposure to the private sector. Do you think that 

would run away private sector participation, or would they be 

jumping for joy? 

Mr. BRADSHAW. We don’t know what the private sector is going 

to do because they are not in that business on a large role today. 

So it is something to us that is worth trying. Of course, in Louisiana, we have a high concentration of risk. We are very eager to 

have as many choices in order to expand homeownership and to 

15 

provide an affordable option. And, to me, there may be something 

akin to the relationship we have with the FHA and the GSEs and 

the Thrifts and everybody that is serving— 

Mr. CLEAVER. That is bad for my colleagues here. So use another—no. Inside. Go ahead. 

Mr. BRADSHAW. There is a—pardon me for going off. We are interested in expanding options. We are interested in seeing flexibility for the consumer. 

Mr. CLEAVER. Thank you. I will yield back the balance of my 

time, Mr. Chairman. 

Chairman LUETKEMEYER. The gentleman yields back. With that, 

I recognize the gentleman from New Mexico, Mr. Pearce, for 5 minutes. 

Mr. PEARCE. Thank you, Mr. Chairman. I appreciate your testimony. Ms. Miller, thanks. Your testimony is extraordinarily clear 

and precise, especially in the recommendations. 

You recommend that more flexibility is needed under BiggertWaters. Could you describe that flexibility just a little bit? Flesh 

that out a little bit more? What would it look like? 

Ms. MILLER. Congressman, I think what we are looking for is a 

clear definition of private flood insurance. That has been one of the 

biggest difficulties with the Biggert-Waters Act is that the definition is just not very clear, and it has created— 

Mr. PEARCE. If we were to ask you, would you have a sentence 

that would clarify that? 

Ms. MILLER. I think that’s what H.R. 2901 does. It provides 

that— 

Mr. PEARCE. And you think that it completely does that? 

Ms. MILLER. Right. 

Mr. PEARCE. Okay. I needed reassurance. For my friend, Mr. 

Ross, sometimes has to be at—brand him to make sure. Okay. 

And, Mr. Kelley, your testimony seems to hint that there is not 

much reason for a private market. But that is pretty much in contrast to Ms. Miller’s. Do you not find the private market—in other 

words, she gave three examples. And if three people can get insurance, then it is almost out there for everybody. Do you not find examples of that, or is this something specific to her State? 

Mr. KELLEY. No. I don’t mean to suggest that. I think there are 

opportunities. What we have tried to specify and what we have to 

go back and reiterate is that the surplus lines market is generally 

not the market of first resort. It is a market that exists to supplement what the standard market isn’t willing to underwrite. They 

are not approved to write it. They don’t have the— 

Mr. PEARCE. But you heard her examples. She gave them, and 

then they are in her written testimony. This one, this one, this one, 

went out and they got it, and they got it cheaper. 

Mr. KELLEY. Right. 

Mr. PEARCE. And sitting up here, not knowing a thing about insurance, except that I pay for it once in a while, usually my wife 

does, but not knowing much more than that, it is confusing. And 

that is all I am trying to solve. I am not trying to pick at you or 

anything like that. So you don’t find the private market as viable 

as she does? That is all I want to understand. 

16 

Mr. KELLEY. I am confusing you. I don’t mean to suggest that. 

I think her examples are good ones. And there was an example 

given yesterday by a Member here. I think it was a property in 

Florida where part of the property is in the flood zone, but the 

structure itself was way up on the hill. It is never going to see 

water. The fact that our market, surplus lines market, can come 

in and specifically underwrite that property, even though it is classified a specific way by the NFIP, we can say we know that structure is never going to flood and we can— 

Mr. PEARCE. Okay. Yes, so that gives me the impression that it 

is a specialty market for special circumstances. 

And, Ms. Miller, again, is that the case that these three examples you gave, they weren’t just people going out and shopping off 

the shelf. These were examples where somebody specifically went 

and said: Oh, we will insure that. That is pretty easy and that is 

not like the rest of the flood, or was it kind of a broader market? 

That is all I am trying to assess. 

Ms. MILLER. Congressman, it is a good question. And I don’t 

mean to suggest that this is big market even in Pennsylvania. We 

are starting to see increased interest by our surplus lines carriers 

in particular. But the examples I gave you are examples my department is aware of. But I am not trying to—this is still a very 

limited market. I am not trying— 

Mr. PEARCE. Okay. 

Ms. MILLER. Frankly, from my perspective, I would like to see if 

we could grow it and make sure that consumers know that— 

Mr. PEARCE. Fair enough. I think many of us would like to see 

that same thing. 

Mr. Birnbaum, Ms. Miller adequately points out, and she is talking about making sure that there is viability. Mr. Kelley has, on 

page 9 of his report, and I am sure you dissected it as well as I 

did. But on page 9, he has the rating agencies. If you took the time 

to watch the movie, ‘‘The Big Short,’’ and if you watched the circumstances play out, the financial industry had all the rating agencies. And, frankly, they were rigging the game. The triple A’s 

weren’t triple A at all. And some people made a whole lot of money 

by saying they are going to fail, and they did. 

So if we were to look at the soundness of the ratings that—the 

Best ratings I think Mr. Kelley referred to, in your experience, 

would that tell us that those ratings are going to be adequate? Are 

they—is that game cooked, too, and we just haven’t found it out 

yet? 

Mr. BIRNBAUM. Well, first note, it is not adequate. If you look at 

the way State insurance regulation deals with admitted carriers, 

there is extensive oversight of the financial condition of admitted 

carriers, which is far more extensive than over surplus lines carriers, number one. But, number two, this whole idea that somehow 

Biggert-Waters gives the GSEs responsibility for financial regulation of insurance companies is a real mischaracterization. Saying 

that they can determine the claims-paying ability means that they 

can require that the insurer have a certain credit rating of say an 

A.M. Best rating of B or more, which is precisely what they do now 

for hazard insurance. 

17 

So Biggert-Waters doesn’t give regulatory authority to the GSEs. 

It simply says you don’t have to take any insurance policy that 

comes your way. You can require an insurance policy with an insurer who has demonstrated a claims-paying ability, either by a 

credit rating agency, a rating of B or more or something along 

those lines. So that is why it is important to keep that in BiggertWaters. 

Mr. PEARCE. Okay. Thanks. I appreciate it. I yield back, Mr. 

Chairman. 

Chairman LUETKEMEYER. The gentleman’s time has expired. 

With that, we go to the gentlelady from California, the ranking 

member of the full Financial Services Committee, Ms. Waters. You 

are recognized for 5 minutes. 

Ms. WATERS. Thank you very much, Mr. Chairman, for holding 

this hearing. These hearings are very important, because we are 

dealing with a rather complicated issue of how to have a National 

Flood Insurance Program that serves our public well. 

Let me apologize to everybody for Biggert-Waters. I am the 

‘‘Waters’’ of Biggert-Waters. And I have been apologizing for many 

months, and helping everybody to understand the unintended consequences of Biggert-Waters. And we tried to straighten that out 

with the bill that we passed that helped to reduce the cost of the 

premiums to our consumers, et cetera, et cetera. 

But I want you to know that I am very interested in whether or 

not we can have a private/public operation that will do the best job 

for our constituents. And I have been working with Mr. Murphy 

and Mr. Ross. And I really do commend them for the attempts that 

they have made to try and have this a bipartisan issue, this bill 

that we are discussing today, H.R. 2901. 

But I recognize there are some concerns. And I think that, Mr. 

Birnbaum, you have identified some of the same concerns that I 

have. But I want to know from you, do you think it is possible to 

have more private participation and involvement in the ways that 

Mr. Ross and Mr. Murphy would have it? And do you think we can 

work this out? 

Mr. BIRNBAUM. I think yes, absolutely, we can get more private 

market involvement in flood insurance. But with respect, I don’t 

think H.R. 2901 is the way to go with that. One of the problems 

with the NFIP is the various and conflicting requirements. Make 

insurance affordable, but not only have premiums that are sufficient to pay claims, but pay back all of the claims in the past that 

were far in excess of the revenues. When you have those conflicting 

things, how do you address that? So what would happen with H.R. 

2901 is that the surplus lines insurers would cherry-pick certain 

policies. Right now, the NFIP looks at a special flood hazard area 

and has 30 different levels of risk, with 1 being the highest elevation and the lowest risks, and 30 being the lowest elevation and 

the highest risk. They then average the claim cost for that, for everyone in that. Surplus lines insurers are going to come in and pick 

off everyone from 1 to 14, leaving the NFIP with everyone in 15 

to 30, with the result that the NFIP is stuck with the worst and 

most risky claims, but no more revenue, per se, to deal with that. 

So you are going to create more financial problems for the NFIP 

down the road. 

18 

The proposal that we put forth fully gives the private market not 

only the responsibility, but the tools to price the product and utilize 

all of their means, whether that is catastrophe modeling, catastrophe reinsurance, all of the pricing tools that they can to get 

flood insurance right. 

Ms. WATERS. Would you just briefly describe your proposal? 

Mr. BIRNBAUM. The proposal is that Congress, or the States, require that flood be part of the homeowners and commercial property insurance policy. Remember, these are private insurers that 

are already providing property insurance. So you are just asking 

them to add the peril of flood. What that would mean is you would 

have the far more efficient delivery of the coverage of flood, because 

you wouldn’t have to have a second policy. You would have all of 

the skills and tools of the private insurers who, in pricing, access 

the catastrophe modelers to get the pricing right. And you would 

have all of the catastrophe reinsurance and catastrophe bonds and 

all the alternative capital available to support that. 

You would then transition the NFIP to a mega-reinsurer the 

same way the Terrorism Risk Insurance program works. That has 

been a successful model. This would accomplish so many things. 

Not only would it deliver the cost of flood more efficiently, but it 

would expand flood coverage. It would give consumers the coverage 

that they expect at the time of an event instead of surprising them 

with, ‘‘There is a flood, and, oh, I am not covered.’’ Or more importantly, how many times have we seen flood in areas that aren’t 

special flood hazard areas? 

This would mean that everybody is covered, even if they happen 

to be outside a special flood hazard area. This will transform Federal expenditures from massive disaster relief to investments in 

loss mitigation and reduce disaster relief expenditures down the 

road. This is really the only long-term solution. 

Ms. WATERS. If I may, what you are indicating is mandatory insurance for everybody to participate? I agree with you. First of all, 

the debt that Biggert-Waters attempted to address was just impossible. We could never pay that down or take care of that. So what 

would you say about constituents who would say, ‘‘I don’t live in 

a flood zone. I shouldn’t be responsible for those people who decide 

they want to live in places where they know they are at risk.’’ 

What would you say to a politician about that? 

Mr. BIRNBAUM. The beauty of having the flood as part of the private market, private flood or the homeowners or the commercial 

property, is that insurers would price the coverage of flood according to the peril. So for consumers who lived in areas that didn’t 

have a high exposure to flood, they would pay little or next to nothing for it. For consumers who lived in a high-flood-risk area, they 

would pay a lot more. But the private market would reflect these 

risks a lot more responsively than the NFIP because the NFIP is 

required to go through this lengthy process with the flood maps. So 

imagine if that same process were required for wind coverage the 

way homeowner’s insurance is sold today. That would be a disaster 

for providing wind coverage. 

So by turning this over to the market, everyone pays their fair 

share instead of the system today, which is a bunch of hidden subsidies. Taxpayers are basically—there are some taxpayers who live 

19 

in areas without much flood who end up paying for flood because 

the Federal Government has lent $24 billion to an NFIP that still 

isn’t financially sound. 

So there are subsidies not only from one set of NFIP policyholders to others, but there are subsidies from taxpayers to other 

taxpayers. 

Mr. ROSS [presiding]. Mr. Birnbaum, I am going to need you to 

wrap it up. A little— 

Mr. BIRNBAUM. Okay. So by moving this to the private market, 

you would introduce a lot more equity in the price of flood insurance. And you would make it a lot more transparent. 

Ms. WATERS. Thank you very much. I appreciate that. And I am 

hopeful that you can work with us as we try and figure out what 

we are going to do to reform the National Flood Insurance Program 

and have some private involvement in it. 

Thank you, Mr. Chairman. 

Mr. ROSS. Thank you. The gentlelady’s time has expired. 

Ms. WATERS. I yield back. 

Mr. ROSS. The Chair now recognizes the gentleman from Florida, 

Mr. Posey, for 5 minutes. 

Mr. POSEY. Thank you, Mr. Chairman. And, again, I would like 

to express my appreciation to Chairman Luetkemeyer for holding 

these hearings and for his efforts to help us get ahead of this issue 

a little bit. 

The National Flood Insurance Program is currently $23 billion in 

debt. That is about the clearest indication we can ever have that 

it is not working in its present form. And from the hearings that 

we have held so far, I am encouraged that at least every Member 

seems to be able to agree on that. 

At one time, an HO-3 was said to have been the broadest, most 

inclusive form of insurance ever written. HO-3 standard homeowners insurance policy not only covered a lot of perils such as fire 

and wind at one time, it had liability coverage in it if your kid shot 

the neighbor with a bow and arrow, and theft provisions, and pretty broad. I don’t know if that is still the case, still is considered 

to be the broadest. But the question I have is a historical one, if 

any of you could answer it, and that is, if flood was ever included 

in a standard property insurance policy before, homeowners or otherwise? Can any of you answer that question? 

Ms. MILLER. Not to my knowledge. 

Mr. BIRNBAUM. I’m sorry. Could you repeat the question? I 

didn’t— 

Mr. POSEY. Yes. Was the peril of flood ever before covered by, 

say, an HO-3 policy in the standard homeowners insurance policy, 

was it ever covered? And, of course, the next question is, when did 

it cease to be covered? 

Mr. BIRNBAUM. Okay. Basically, Congress created the NFIP in 

1968. And that is when private industry came forward and said, 

‘‘We are not willing to cover flood because the risk is concentrated 

in certain areas, and we can’t diversify it, and we have a hard time 

identifying the risk because of the flood maps.’’ 

Mr. POSEY. So, at one time, it was covered? 

Mr. BIRNBAUM. Yes. 

20 

Mr. POSEY. Do they cover earthquakes in California? Is that a 

standard covered peril? 

Mr. BIRNBAUM. No. 

Mr. POSEY. No. Okay. What do you think would happen if there 

was a small sentence added to legislation which said, ‘‘If you cover 

any property which has a mortgage insured by the Federal Government, you shall not exclude the peril of flood from the coverage,’’ 

what do you think would happen? 

Mr. BIRNBAUM. I think what would happen is that private insurers would start offering the coverage of peril of flood in their homeowners policies. And if they didn’t, then State residual markets 

would be providing that. So, for example, in Florida, just as, right 

now, if a company isn’t willing to write wind coverage, the consumer would go to Florida Citizens. So if a company wasn’t willing 

to write flood in the policy, then the consumer would go to Florida 

Citizens. But the ability for companies to write flood today is completely different than it was 40, 45 years ago. Companies have access to catastrophe models. They have access to very distinct and 

clear and detailed itemization of risk. There is access to reinsurance and alternative capital that didn’t exist 45 years ago. So the 

opportunities are there. There just needs to be a nudge from the 

government to do so. And that nudge would be a requirement that 

they include it. 

Mr. POSEY. I am not opposed to that concept for sure. But I must 

say that Citizens puts Florida taxpayers on the hook greater than 

any other risk ever known to those citizens of Florida. Had Citizens 

had as broad of coverage pre-2004 and 2005 hurricane seasons as 

it does now, Florida would probably be in as bad a financial state 

as Detroit. That is definitely not a real clear answer to have a government-owned insurance company being the largest one in the 

State with never enough reserves when you live on a hurricaneprone peninsula to cover innumerable losses. Fortunately, our 

States cannot just print more money and go into debt. They have 

to actually—they have a constitutional requirement to balance 

their budget. And they can’t pull the escapades that the Federal 

Government can. So, anyway, I see my time has expired. 

Mr. Chairman, thank you very much. 

Mr. ROSS. Thank you. 

The gentleman’s time has expired. 

The Chair now recognizes the gentlewoman from Ohio, Mrs. 

Beatty, for 5 minutes. 

Mrs. BEATTY. Thank you so much, Mr. Chairman, and to our 

ranking member and to our witnesses today. First, let me say that 

I support what Ranking Waters said in relationship to wanting to 

be able to look at a public-private operation. So I am going to try 

to get through two quick questions, one to you, Mr. Birnbaum, and 

one to you, Mr. Bradshaw, as it relates to the National Flood Insurance Program and privatization. 

To you, Mr. Birnbaum, we have certainly heard some interesting 

testimony here today. And I have had an opportunity to look 

through your written statement. And one of the concerns I have is 

the area of moving away from the National Flood Insurance Program to privatization. I am concerned, I am sure my colleagues on 

both sides of the aisle are concerned or should be concerned, and 

21 

I know FEMA is also concerned when you look at the $23 billion 

in debt. And so I guess my question is if we talk about, as you stated, Mr. Birnbaum, that we move away from privatization and move 

away from the way it is now to privatization, what happens to the 

$23 billion in debt? Because certainly one would not expect FEMA 

or the taxpayers to be left holding the bag. And when you recommend that the National Flood Insurance Program get out of the 

business of being a flood insurance provider and do its transition, 

I don’t think I saw anywhere in there where you addressed what 

happens to the $23 billion in debt. Did I miss that? Or is there 

something there that you can share with us? 

Mr. BIRNBAUM. No. The short answer to your question is that the 

same thing is going to happen, would happen, as is going to happen 

right now, which is taxpayers are on the hook for the $23 billion. 

Right now, there is this belief that somehow the NFIP is going to 

generate funds into the future sufficient to pay back that $23 billion. Given that you are continuing to allow or require the NFIP 

to subsidize rates—and, with H.R. 2901, you are going to put the 

NFIP in a position of being even more financially vulnerable—you 

are not only never going to pay back the $23 billion through the 

NFIP, you are going to create an even larger requirement for the 

NFIP to borrow from Treasury. So the answer to the question is 

that $23 billion is there; cut your losses and move to a system of 

sustainability. 

Mrs. BEATTY. When you say, ‘‘cut your losses,’’ that makes it go 

away? 

Mr. BIRNBAUM. It doesn’t make it go away. But Congress is going to have to pay that $23 billion because there is no way that the 

NFIP is going to be able to repay back over time, even under the 

current requirements, let alone under the requirements of H.R. 

2901. 

Mrs. BEATTY. So I guess what I am hearing—and certainly you 

are the expert—is that if Congress is going to have to pay it for 

it to be privatized, and Congress is going to have to pay it to leave 

it the way it is, where is the in-between of public and private in 

sharing in that cost? 

Mr. BIRNBAUM. By moving to flood as part of the standard homeowners and commercial property insurance, what happens then is 

that the Federal Government stops being on the hook for flood insurance losses. It means that the private market is responsible for 

accepting the exposures, pricing them appropriately, and paying 

the claims. The bleeding stops. And that is what is necessary at 

this point in time. So you accomplish several things by putting it 

with the private market along the proposal we have made. You not 

only stop the hemorrhaging of Federal money, number one. But, 

number two, you get better pricing, you get more comprehensive 

coverage, and you get better opportunities for loss mitigation. You 

get private insurers now incentivized to get involved in loss mitigation for flood in a way that they currently have no interest in doing 

right now. 

Mrs. BEATTY. For the sake of time, I am going to move on quickly 

to you, Mr. Bradshaw. Can you tell me the value of the flood plain 

maps as it benefits lower- and middle-income Americans and firsttime home buyers? 

22 

Mr. BRADSHAW. Certainly the value of the flood plain maps are 

significantly improved today as compared to when I started in the 

business in 1971, when we received this big box roll of maps and 

our objective was or our assignment was to locate all of the properties on the map. So the digitization of the maps helped to improve significantly, we believe, the underwriting of the flood insurance risk. 

All that being said, there are several places with the mapping 

that are incorrect and that the private market will be able to identify those from using different approaches. And then the hope is 

that provides more choices, that provides more opportunities for 

our consumers to afford the flood insurance, particularly the lower 

income and the new home buyer. 

Mrs. BEATTY. Okay. 

Thank you. 

Mr. ROSS. Thank you. 

The gentlelady’s time has expired. 

I now recognize myself for 5 minutes. 

Ms. Miller, you spoke in your testimony about some of the obstacles of Biggert-Waters that are preventing you from being able to 

authorize private flood insurance in the State of Pennsylvania. Are 

you seeing an influx of interest from the private market to want 

to write to flood insurance in Pennsylvania? 

Ms. MILLER. Mr. Chairman, we are not seeing an influx of interest. It is still a very limited market. We are seeing some increased 

interest. We are seeing more surplus lines policies. But it is still 

a very limited market. 

Mr. ROSS. And if H.R. 2901 were to pass, do you think that 

would change things and allow for the presentation of more private 

capital to come in and take the risk in Pennsylvania? 

Ms. MILLER. That is my hope. That is why I am here supporting 

it because I would like to see the private market grow. And I would 

like to see consumers have more options. 

Mr. ROSS. And if the private market does grow and they are assessing the risk based on their models and based on what they believe is appropriate in risk-based analysis, do you feel that there 

may also be an opportunity then that these private carriers may 

not only offer flood but also want to include it in an all-perils since 

they have—managing the risk? 

Ms. MILLER. I think that is right. 

Mr. ROSS. And would that not lead to an opportunity where we 

may have even more people, assuming other Insurance Commissioners across the country feel as you do, to include more people 

to want to participate in flood insurance because the private carrier 

can offer it to them at a lower price? 

Ms. MILLER. That is the hope. 

Mr. ROSS. And would that not lead to an opportunity, as Mr. 

Birnbaum says, where you would see more and more policies include in their all-perils flood? But to keep it the way it is now 

where we bifurcate NFIP against an all-perils policy is not going 

to help the situation. Would you agree? 

Ms. MILLER. Yes. 

Mr. ROSS. I have enjoyed listening to Mr. Birnbaum. I agree with 

him. And I think you will too that—when he states in his testiVerDate Nov 24 2008 18:55 Apr 20, 2017 Jkt 099799 PO 00000 Frm 00028 Fmt 6633 Sfmt 6633 K:\DOCS\99799.TXT TERI
23 

mony, ‘‘consumer protections provided by the States are far greater 

than those that exist for NFIP insurance,’’ would you agree? 

Ms. MILLER. Yes. 

Mr. ROSS. And have you had any problems, well, let me put it 

this way, do you feel comfortable continuing to allow surplus lines 

carriers to write flood insurance in the State of Pennsylvania? 

Ms. MILLER. Absolutely. 

Mr. ROSS. Thank you. 

Mr. Kelly, surplus lines, they just don’t just write flood insurance, do they? 

Mr. KELLEY. They just don’t write flood insurance. I appreciate 

that question. We have heard here that surplus lines are not regulated. We have heard that they are not licensed. That is— 

Mr. ROSS. Correct. And if you would discuss those. 

Mr. KELLEY. —simply incorrect. Every surplus lines insurer is licensed in a State. It may not be licensed in every State. But in 

order to be eligible to write surplus lines insurance, as Commissioner Miller described, you have to be licensed in your State of 

domicile. So the regulation of that insurer from a financial solvency, from a market conduct perspective, none of that varies between the standard market and the surplus lines market. 

Mr. ROSS. And surplus lines are currently writing flood insurance policies now? 

Mr. KELLEY. Absolutely. And here is why, not just because of the 

Biggert-Waters Act, but because for decades, you have had consumers whose problems weren’t solved by the limits of the NFIP 

or who didn’t have a standard market option. 

Mr. ROSS. So under the law, surplus lines carriers can write policies? And is the number of policies growing over time in flood insurance? I doubt it is significantly. But is it growing? 

Mr. KELLEY. It is not significant. You have seen the stats in my 

testimony. And I will just recap them here. We have about six 

States, some of the biggest States, that capture flood insurance 

data. And those 6 States, which represent about 50 percent of our 

surplus lines market, wrote $134.1 million in flood premium in 

2014. 

Mr. ROSS. And then because my time is limited, would H.R. 2901 

assist and facilitate in the increase of policies available and being 

purchased by consumers for flood? 

Mr. KELLEY. Yes, it would. 

Mr. ROSS. Thank you. 

We talked about mitigation yesterday. And I think the overall 

goal of a flood insurance policy, as in any insurance policy, is to 

have the minimization of risk with the benefit of an affordable policy because if you don’t focus on that, then what you are providing 

is nothing but relief. And relief is not where we want to go because 

that creates FEMA and then that creates greater problems without 

any control. So what benefit is there in making sure that we allow 

for incentives to mitigate the risk? And what benefit is being provided or incentives being provided right now by NFIP for that mitigation? Would anybody like to take a stab at that? 

Mr. BIRNBAUM. Sure. So the key incentive for loss mitigation is 

proper pricing of the insurance product. 

24 

Mr. ROSS. Correct, Mr. Birnbaum. And I apologize because you 

are on something I want to talk about, and I only have a couple 

of seconds. Would not the consumers benefit greater for having 

more assessment of risk done in a granular fashion if the private 

carriers were involved to make sure that they are protecting their 

investment on that risk to the benefit of the consumers so that we 

would have a more affordable market with less risk of loss to the 

consumer? 

Mr. BIRNBAUM. The answer to that is, yes, if it were comprehensively done by the private market. If you do just selective with the 

cherry-picking of H.R. 2901, then you have some consumers who 

get that and the majority of consumers don’t. 

Mr. ROSS. My time is running out. 

Clearly, then, I would suggest that H.R. 2901 offers that transition to create the NFIP to be the market of last resort, which I 

think is what the panelists would like to see in the overall equation. 

Thank you. My time has expired. 

I now recognize Mr. Rothfus from Pennsylvania for 5 minutes. 

Mr. ROTHFUS. Thank you. 

Ms. Miller, I am going to talk a little bit about the surplus lines 

insurers. You mentioned in your testimony that there is a growing 

appetite in the surplus lines market to provide private flood insurance coverage and that Pennsylvania has had some success with 

surplus lines carriers offering flood insurance. Taking a national 

perspective, do you feel comfortable with surplus lines carriers 

writing private flood policies? 

Ms. MILLER. Congressman, I do. 

And, in fact, in Pennsylvania, one of the things we are trying to 

do as a department right now is figure out how we can do a better 

job of letting consumers know that this option exists. That is now 

comfortable I am with surplus lines policies. 

Mr. ROTHFUS. Can you talk a little bit about the regulation of the 

surplus lines insurers? How do State insurance regulators monitor 

the financial health of surplus lines insurers? 

Ms. MILLER. Absolutely. As Mr. Kelley indicated, surplus lines 

carriers are licensed in the State of their domicile. So in that State, 

they are meeting the capital and surplus requirements that the admitted carriers are meeting. And so even though we talked about 

earlier the fact that the guaranty fund doesn’t apply to surplus 

lines, there is financial monitoring of surplus lines carriers. And 

even in nondomiciliary States, there are capital and surplus requirements on surplus lines carriers, as well as carriers who are 

not domiciled in the United States. So I am comfortable we have 

a lot of financial regulation protection. But also we have, in a State 

like Pennsylvania, if we have a surplus lines carrier that is not 

domiciled in Pennsylvania, we still have authority over the placement of that insurance with the surplus lines broker and the opportunity to go after that broker if there is misconduct. But we also 

have I think— 

Mr. ROTHFUS. What kind of misconduct are you talking about? 

Ms. MILLER. For example, in Pennsylvania, we have a requirement that they notify policyholders that, for example, the guaranty 

fund doesn’t apply if they misrepresent the policy somehow. Or if 

25 

they place the policy with a non-admitted or a non-eligible surplus 

lines carrier, we can go after that broker. 

Mr. ROTHFUS. These are basic consumer protection items that 

you are talking about? 

Ms. MILLER. Exactly. We also enforce the requirements related 

to the eligibility of surplus lines carriers to operate and sell policies 

in our State. So if we have concerns about the financial soundness 

of a surplus lines carrier, if they are not paying claims timely or 

if they are willfully violating our laws, we can declare them ineligible to sell policies in our State. Additionally, in Pennsylvania, we 

have what is called the Unfair Insurance Practices Act. I think 

States have similar laws that are probably titled a little bit differently. And these, again, are consumer protection statutes. They 

make sure that claims are paid appropriately and that the insurer 

and the broker are not misrepresenting policies and what is covered. And this Act applies to surplus lines carriers just like it applies to admitted carriers. 

Mr. ROTHFUS. Great. 

Mr. Birnbaum, you expressed concerns in your written testimony 

about the level of regulation and policyholder protection for surplus 

lines that are not admitted insurers. In fact, on page 21 of your testimony, you state that Ross-Murphy ‘‘sets the table for more problems for consumers who have purchased the surplus lines policies 

when and if that occurs.’’ I would point out that Commissioner Miller, from my home State, reports at least 5 surplus lines carriers 

have sold flood insurance in Pennsylvania, writing around 1,000 

policies, and that the State closely monitors surplus lines business. 

What evidence do you have to show that State Insurance Commissioners or State regulators have not protected consumers, particularly with policies sold through non-admitted carriers via surplus 

lines? 

Mr. BIRNBAUM. Sure. So with admitted carriers— 

Mr. ROTHFUS. What evidence? I am looking for what evidence 

that you have where you can show me where this has been an 

issue. 

Mr. BIRNBAUM. The evidence is that regulators don’t have authority to approve forms or rates. Commissioner Miller in the last 

few weeks has issued a bulletin on price optimization, telling insurers that they can’t use a consumer’s willingness to pay to determine the price that they charge the consumer. She has no authority to do the same thing for surplus line insurers. And it is the 

same thing with rate issues and other policy form issues. A surplus 

lines insurer could include a provision in the policy— 

Mr. ROTHFUS. You are saying, ‘‘could, could, could.’’ I am looking 

for specific examples where it has actually happened. What evidence? That is what I am looking for from you. 

Mr. BIRNBAUM. The evidence—I will give you evidence from the 

force-placed insurance market. The largest writers of private flood 

insurance today are force-placed flood insurers. And the largest of 

those are admitted carriers. So private flood insurance can be written by an admitted carrier. But there have been issues where those 

private flood insurers, when they were using surplus lines, were 

charging exorbitant rates that were far in excess of the reasonable 

cost of providing insurance. So that has been reined in, in part beVerDate Nov 24 2008 18:55 Apr 20, 2017 Jkt 099799 PO 00000 Frm 00031 Fmt 6633 Sfmt 6633 K:\DOCS\99799.TXT TERI
26 

cause the Federal Housing Finance Authority and some State regulators have said: You need to move that force-placed flood from surplus lines to the admitted market. 

Mr. ROTHFUS. But State regulators would have the authority to 

go after them. Would State regulators have the authority under existing— 

Mr. BIRNBAUM. They have authority basically for financial condition. But they don’t have the same authority as they do over admitted carriers for things like policy forms and rates. If there is such 

great consumer protection in the surplus lines, why doesn’t Pennsylvania or every other State allow all personal auto and all homeowners to be written in the surplus lines market? Why do they require that to be written in the admitted market? Because there are 

more consumer protections in those markets. 

Mr. ROTHFUS. Ms. Miller, would you care to respond to that? 

Ms. MILLER. Sure. So surplus lines, the way it works is surplus 

lines are for unique risks. That is why we have admitted carriers 

that write the rest of personal lines policies because we have laws 

in all the States about diligent search requirements. And if you can 

buy a policy through the admitted market, then that is what you 

do. Really, surplus lines are for those unique risks that aren’t being 

written by the admitted market. 

Mr. ROTHFUS. I yield back, Mr. Chairman. 

Mr. ROSS. The gentleman’s time has expired. 

The Chair recognizes the gentleman from Kentucky, Mr. Barr, 

for 5 minutes. 

Mr. BARR. I thank Mr. Ross for his leadership on trying to tackle 

this complex issue. 

Mr. Murphy, I thank you as well for your efforts in trying to deal 

with what is clearly a very complicated issue and a huge potential 

liability for the taxpayers and an affordability issue, frankly, for a 

lot of my constituents in rural central and eastern Kentucky. I appreciate what H.R. 2901 is trying to do in terms of clarifying that 

State insurance regulators have the authority to regulate private 

flood insurance, clarifying the definition of private flood insurance. 

But I want to have Ms. Miller, Mr. Bradshaw—Mr. Kelley actually 

address a point that Mr. Birnbaum is making, which I think is a 

pretty interesting and good point. And that is that there is this impediment to private insurance offering flood coverage based on just 

the simple fact that they have to compete with the subsidized rates 

of the NFIP. Even if H.R. 2901 does move us in the right direction 

in these areas, what do we do about this fundamental problem, 

about the competition with subsidized rates? 

Ms. MILLER. I think that is a challenge. And I think in terms of 

the future of NFIP, at the NAIC, we will be embarking this year— 

I know the reauthorization is coming up next year. And it sounds 

like there is a lot of interest in talking about ways we can modify 

that program. We have not had conversations at NAIC yet about 

potential recommendations for changes to that program. But it was 

just announced that I am Chair of the Property and Casualty NAIC 

Committee. And I can tell you that this is on our agenda for this 

year. We are going to be looking at this and putting together kind 

of our recommendations for ways that perhaps NFIP could be 

modified going forward. From my perspective today, I am here beVerDate Nov 24 2008 18:55 Apr 20, 2017 Jkt 099799 PO 00000 Frm 00032 Fmt 6633 Sfmt 6633 K:\DOCS\99799.TXT TERI
27 

cause I just want to see consumers have more options. And I believe H.R. 2901 will provide for more private market options for 

folks. And I think that will be a good thing for consumers. 

Mr. BARR. Mr. Bradshaw? 

Mr. BRADSHAW. With regards to the affordability of the program, 

however this comes out, is that we are very interested in making 

sure that the consumers can afford the product. We believe that 

competition will bear that true. We have a unique position in Louisiana where we have such a high concentration of flood risk, very 

much of it is required. Many of our customers are required to have 

flood insurance. So the impact by NFIP and a huge change in the 

premium not only affects our consumers but the property values, 

which we have a high level of interest in because at the end of the 

day, we are the guys who are protecting the investors. So we are 

very interested in that. We would see it that it is somewhat like 

the relationship with FHA in the general market of lenders and of 

guarantors in the mortgage business is that FHA has a role. Looking back to the late 1980s of the oil bust, FHA was the only program in town. So the NFIP does serve a significant and a long-term 

benefit. 

Mr. BARR. Thank you. 

And as we move to Mr. Kelley, Mr. Kelley, if you could answer 

just two specific questions as we—in response to Mr. Birnbaum’s 

testimony. In your view, as an advocate of H.R. 2901, what is preferable about Ross-Murphy to the TRIA model that Mr. Birnbaum 

is advocating? What is preferable to the surplus lines solution to 

the TRIA model that Mr. Birnbaum is advocating? And, secondly, 

could you respond to Mr. Birnbaum’s contention that H.R. 2901 

would give surplus lines insurers the ability to cherry-pick NFIP 

policies that are overpriced and low risk, making the NFIP more 

financially vulnerable? I am really interested to hear your thoughts 

on that. 

Mr. KELLEY. Thank you for that question. With respect to the 

TRIA model concept, H.R. 2901 does a very different job of pushing 

this coverage to the private market. TRIA mandated that the private market offer terrorism coverage. This is giving the private 

market the opportunity to get in and figure it out, invest in underwriting processes, and get the experience to develop products. 

Many standard companies, I think over time, will probably add 

flood to the standard homeowners policy like we have talked about 

here. It is just going to take time. I think it will happen. It is just 

going to take time. And much of that experience will transpire out 

of what the surplus lines market is able to do. 

What was the second question? 

Mr. BARR. The issue of cherry-picking. 

Mr. KELLEY. The issue of cherry-picking, the issues you are trying to balance here are affordability, availability, and financial stability of flood insurance. Terms like ‘‘cherry-picking’’ and ‘‘adverse 

selection’’ obviously have very negative bias when referring to private companies and their business decisions based on sound financial models, actuarial data, capacity, risk appetite, and experience. 

The private market’s financial stability is in all of our, especially 

the consumer’s, best interest. Making decisions about the types of 

risk to write, regions to write in, capacity to allocate to those reVerDate Nov 24 2008 18:55 Apr 20, 2017 Jkt 099799 PO 00000 Frm 00033 Fmt 6633 Sfmt 6633 K:\DOCS\99799.TXT TERI
28 

gions, those are essential elements to maintaining a solvent, viable 

marketplace. So regardless of which risk you transfer from the public to private balance sheet, it starts to transfer some of them and 

reduces the long-term exposure to the subsidized Federal Government. 

Mr. BARR. Thank you. 

I yield back. 

Chairman LUETKEMEYER. The gentleman’s time has expired. 

With that, we will go to the gentleman from Texas, Mr. Williams. 

Mr. WILLIAMS. Thank you, Mr. Chairman. 

And I thank all of the witnesses for your participation today. 

Mr. Birnbaum, you heard I am from Texas. In your testimony, 

you specifically state that private insurers can offer flood insurance 

and can do so more efficiently and effectively than the NFIP. I am 

going to agree with you 100 percent on that. And I believe the Federal Government has gotten way over its head on this issue like it 

does with a lot of things. 

But you also state that H.R. 2901, of which I am a cosponsor and 

proud to be one, will not address the longer term problems with the 

NFIP, will not promote private market participation in the sale of 

flood insurance, will create bigger problems in the future when 

flood events occur, and will eliminate State regulatory oversight. So 

three questions. Number one, how can H.R. 2901 totally eliminate 

State regulatory oversight? 

Mr. BIRNBAUM. Okay. H.R. 2901 removes from Biggert-Waters 

the limitation that private flood insurance can be written by surplus lines for commercial policies. It opens the door to surplus lines 

for residential flood insurance. By doing so, it means that private 

flood insurance basically moves out of the admitted market where 

there are far more consumer protections than in the surplus lines 

market. So, that is the basis for that assertion. 

Mr. WILLIAMS. Number two, what is your assessment of the 

State regulatory system in light of your statement on page 19, 

meaning do you have a lack of faith in the State regulatory process? 

Mr. BIRNBAUM. No. I am a strong supporter of State-based regulation. It hasn’t been an unqualified success over the years. But I 

am a strong supporter of it. And I demonstrate that strong support 

by saying that flood, by being part of the standard homeowners and 

commercial property insurance, then becomes the responsibility of 

State insurance regulators. What H.R. 2901 does is it creates this, 

continues this Rube Goldberg apparatus of constricting the NFIP, 

giving them all sorts of requirements and constraints, giving the 

private, the State-based regulators certain responsibilities. But the 

overall thing makes no sense. If you want to get to a sustainable 

future, then you utilize the private market but give them the full 

responsibility overseen by State-based regulation. Don’t include 

this NFIP that is required to provide sort of subsidized insurance, 

which gives the private sector then the opportunity to say: Well, we 

are only going to take this most profitable business; we are going 

to leave the more risky and the less profitable business to the Federal Government. 

So you are privatizing profit and socializing the risk. That is exactly the thing that is outraging people all over the country. It is 

29 

the type of crony capitalism that basically says: Look, we are going 

to give one group of people the government advantage, instead of 

trying to create a level playing field for everyone. 

Mr. WILLIAMS. How would the State regulation of flood insurance 

differ from the State regulatory process for homeowners insurance 

or other insurance lines? 

Mr. BIRNBAUM. Right now, for surplus lines, what Commissioner 

Miller and others have said is they regulate the financial condition 

of the surplus lines insurer, and they have some ability to regulate 

sort of marketplace misconduct. 

But they don’t have the ability to ensure that policy forms are 

not misleading or deceptive. They don’t have the ability to ensure 

that rates are not unfairly discriminatory. And, more important, 

they don’t have the ability to make sure that the NFIP meets its 

goals. So you have Federal requirements for flood insurance, and 

you are essentially delegating part of the responsibility for insuring 

that to the State-based regulators. 

And while I am a big supporter of State-based regulation, there 

have been some notable failures. If we look at private mortgage insurers, we saw that in the financial collapse, private mortgage insurers failed. Those were under the purview of State-based insurance regulators. So we are not talking about a pristine record here. 

But I have faith in State-based insurance regulation if you give 

them the comprehensive tools to do it, not the piecemeal approach 

of H.R. 2901. 

Mr. WILLIAMS. I am a private-sector guy. I am in the retail business. And I can tell you, in the counties I represent in Texas, we 

have had a lot of flood problems, and the way to get it right is turn 

it over to the private sector. Let the private sector compete. Let the 

consumer drive the industry, not the Federal Government. And I 

think you will see prices will be right, and service will be better. 

And I am happy to be on H.R. 2901. 

Mr. Chairman, I yield back my time. 

Chairman LUETKEMEYER. The gentleman yields back. 

With that, the gentlelady from New York, Ms. Velazquez, is recognized for 5 minutes. 

Ms. VELAZQUEZ. Thank you, Mr. Chairman. 

I am sorry I wasn’t here to listen to your testimony, but I was 

in a markup in the Small Business Committee. We just finished. 

But I want to thank you all for being here. 

And I have just one question, to Mr. Bradshaw. 

My district in New York City, which encompasses communities 

on New York City’s Lower East Side and Red Hook, was especially 

hard hit by Superstorm Sandy. 

In a January 2014 report published by the GAO, some stakeholders noted that the rate increases associated with private-sector 

flood insurance could lower a home’s market value. Some stakeholders also expressed concern that whole communities with a high 

risk of flooding, like those in my district, could become economically unviable if the increase in premium rates makes flood insurance unaffordable for too many residents. 

Mr. Bradshaw, how do we ensure premium rates on flood insurance do not rise to such a level that it causes homeownership rates 

to decline, particularly in vulnerable communities? 

30 

Mr. BRADSHAW. Certainly, we have had some similar experiences 

with Hurricane Katrina, and our part of the country and the Gulf 

Coast is very much at risk, just as you, and, certainly, taking nothing away from the flooding that has taken place on the Mississippi 

River in Missouri right now, as well. People are in harm’s way. 

We look to committees such as this to make sure that those folks 

who need help in order to maintain their property values, in order 

to continue to make a living, to continue to have access to homeownership—and that, from that perspective, there seems to me to 

be a parallel between what FHA does in the home mortgage business and what NFIP does for the flood business. 

In our part of the country, Port Fourchon is one example, which 

carries 25 to 35 percent of the petrochemical business from the 

Gulf up to the mainland. There are reasons that has to be there. 

People have to work there. So that very well may require some 

subsidization of premiums for people in that area. It is very important. 

I am not sure that I know how to do that. I know that what we 

have right now has created $23 billion in debt and that if we fail 

to plan for the next event, if there is an event, then we will merely 

re-experience what we have today. 

So we are very eager to help protect the consumer. We are very 

eager to be very interested and verbal to help protect the consumer. Because without them, our business goes away. 

Ms. VELAZQUEZ. Thank you. 

Chairman LUETKEMEYER. The gentlelady yields back. 

I now recognize the gentleman from Texas, Mr. Green. 

Mr. GREEN. Thank you very much, Mr. Chairman. 

And I thank the witnesses. 

And, of course, I always thank the ranking member for her leadership on these issues. 

I lived through Katrina. And it is inappropriate to say I lived 

through it because I wasn’t actually there— 

[Phone rings.] 

Mr. GREEN. Excuse me. This may be the President calling. 

I wasn’t actually there. 

It is not the President. Okay. So, I won’t take the call. 

I wasn’t actually there. But I arrived shortly thereafter, and I 

saw the tragedy that was left behind. I went to Sri Lanka after the 

tsunami. I was in the Philippines after Haiyan. And I know what 

this looks like, the aftermath, and it is not a pleasant sight, to say 

the very least. And I am being quite euphemistic. 

Here is the question that I have for you, dear friends: Are you 

indicating that, if we had this system in place pursuant to H.R. 

2901, that we would not have expended the billions of dollars that 

we had to expend after Katrina, that this would eliminate the necessity for the Federal Government to step in? This is an important 

question for me and my constituents. 

Yes, sir, if you would? 

Mr. BIRNBAUM. So the answer to that is H.R. 2901 would not 

have prevented any of the problems that you just described, because H.R. 2901 would continue to leave the NFIP with those policies in high-risk areas, it would continue to have the NFIP chargVerDate Nov 24 2008 18:55 Apr 20, 2017 Jkt 099799 PO 00000 Frm 00036 Fmt 6633 Sfmt 6633 K:\DOCS\99799.TXT TERI
31 

ing inadequate rates, it would continue to have subsidies for people 

who don’t need them. 

So you would still have the same problem you would today. And, 

as a matter of fact, it would be worse, because the NFIP, instead 

of broadly averaging its rates and getting revenue for policies in 

lower-risk areas, it wouldn’t even have had that revenue. So the 

situation would be worse today if H.R. 2901 had been in place. 

If our proposal of having the private sector provide the flood insurance, then the $23 billion would not be there today if our system had been in place. 

Mr. GREEN. On the question of the billions that we currently find 

ourselves indebted to, I suppose the Treasury, would we still have 

that $23 billion debt if we had H.R. 2901 in place? 

Mr. BIRNBAUM. Well, yes. The $23 billion is not going to go away 

under the existing situation. And it is certainly not going to go 

away under H.R. 2901. It is going to get worse under H.R. 2901. 

Because the private sector is going to take the most profitable of 

the policies—remember, I told you earlier that the NFIP puts 

things into 30 risk categories, with 1 being the lowest risk, and 30 

being the highest, and then averages that. The private sector is 

going to come in and take 1 through 14, leaving the NFIP with 15 

through 30, the most risk. So the NFIP is going to have almost the 

same risk but much less revenue. So the situation is going to get 

worse for the NFIP. It is going to let the private sector cherry-pick 

the most profitable policies that are out there. 

What is needed is to give the private sector the responsibility to 

handle the entire problem, which is price all of the policies. There 

is always going to be an issue with affordability, right? There is 

just no way around it. But you can’t have affordability addressed 

through the insurance pricing system. When you underprice insurance, you create incentives for people to invest badly. You invest 

in areas where it is not sustainable. It is critical to have risk-based 

pricing. 

It is also critical to have financial assistance delivered in the 

form of loss mitigation. Instead of giving people a grant to pay for 

the insurance, give them money to mitigate their homes so that 

they are less exposed to flood. Reduce the cost of flood insurance 

by reducing the exposure. That is where the target of Federal expenditure should be. The delivery of the insurance should be in the 

private sector. 

Mr. GREEN. Thank you. 

I will yield back the balance of my time. 

Chairman LUETKEMEYER. The gentleman yields back. 

With that, I recognize the gentleman from Florida, Mr. Murphy, 

for 5 minutes. 

Mr. MURPHY. Thank you, Mr. Chairman, and thank you, Ranking Member Cleaver, for today’s hearing. 

And Ranking Member Waters, thank you for your leadership on 

this. 

And, Mr. Ross, who has now left, I thank him as well for his cooperation, working in a bipartisan manner to make some progress 

here. 

32 

And I very much appreciate the input of all the panelists today, 

the witnesses, for this important discussion, hearing all your comments, all your thoughts. 

The bottom line is, how can we provide more affordable flood insurance options for people all across the country? This legislation 

that we are discussing, the Flood Insurance Market Parity and 

Modernization Act, which I have sponsored with my good friend 

and fellow Floridian, Mr. Ross, aims to do just that. 

This Act would provide more choice, greater competition, and less 

cost in the flood insurance market. It would accelerate the development of more flood insurance options by allowing policies accepted 

by the State to satisfy mandatory coverage requirements under the 

NFIP. 

Now, when Congress passed the National Flood Insurance Act, 

its intention was that insurance companies would provide flood insurance coverage for the American people. And when the legislation that was recently updated under the Biggert-Waters Flood Insurance Reform Act of 2012, that intention was, in fact, reaffirmed. 

However, due to the, I would say, lack of legal clarity on the particulars of the insurance policies allowed into the program, most 

lenders have not accepted private flood insurance to meet mandatory coverage requirements. 

This bill would solve this problem by providing a simple and 

clear definition of private flood insurance accepted for the mandatory coverage under the program, consistent with the successful 

regulation of other forms of insurance in the marketplace—that 

which is issued by an insurance company licensed, admitted, or 

otherwise approved to engage in the business of insurance in the 

State in which the property is located. 

I believe there will always be a need for the NFIP, but there is 

more than enough flood risk out there that can be written right 

now by the private insurers that are willing to do so, whose capability will only continue to advance with the growth of new technology and modeling. 

Ensuring access to private flood insurance choices will help reduce the risks to which taxpayers are exposed under the Federal 

program. And especially because flood insurance coverage is mandatory in many areas, customers need more competition and options in the flood market to make it more affordable. 

So I ask that my colleagues on both sides of the aisle support 

this legislation to give our people, our constituents more choice, 

greater competition, and ultimately less costs when it comes to 

flood insurance. 

I came to Congress, as did most of us here, to work with everyone, no matter what the party affiliation, and to solve problems. I 

think this legislation is one example of an area we can actually 

make some progress in this last year of this Administration, and 

I urge my colleagues to do so. 

In my remaining time, a question for Mr. Kelley: One topic of 

discussion that we had in this conversation, writing this legislation 

dealt with surplus lines and their role in this. Approximately how 

many surplus lines, if you know off the top of your head, flood insurance policies, in Florida have been accepted for the purposes of 

NFIP mandatory purchase? 

33 

Mr. KELLEY. I have the Florida data here somewhere. I have it 

combined with six States, actually. In 2014, $134.1 million worth of flood insurance premium written in those six big States: Florida, California, Texas, New York. $32.9 

million of that, 24 percent of that, covers residential property. And 

of that category, only about 29 percent represents primary coverage, the balance being excess coverage on a personal residence. 

So it is still a relatively small share of the overall surplus lines market. It is less than 1 percent of the $40 billion market nationwide. 

Mr. MURPHY. Okay. 

Mr. Birnbaum, in your opinion, how does this differ from homeowners insurance? Both seem to be intended for the same thing, 

where that is protecting the loan in an event of a disaster. How do 

you see the difference? 

Mr. BIRNBAUM. I don’t. That is why our proposal is to require 

that the homeowners insurance policy cover the peril of flood. That 

would deliver that coverage far more efficiently than through the 

requirement of a second policy. It would mean that everybody gets 

the coverage that they expect and pay their fair share for that coverage than under the current system. 

And private flood is already being provided by the admitted market to a greater extent than the surplus lines market. As I mentioned earlier, force-placed flood—there is more force-placed flood 

written by admitted carriers than the surplus lines numbers that 

Mr. Kelley described. 

So it is not as if it is unfeasible for admitted carriers to write 

flood. It is feasible. The question is, what is the best way to nudge 

the private market into this? And, in my view, the best way is to 

require the coverage of flood in those homeowners and commercial 

property policies, because that accomplishes a variety of things, including problems with the NFIP as well as fairness issues and promoting loss mitigation. 

The problem with H.R. 2901 is it addresses a very narrow issue 

but can create problems in other areas of the flood program. 

Mr. MURPHY. Thank you. 

Chairman LUETKEMEYER. The gentleman’s time has expired. 

We are going to go for a second round. I think everybody has 

maybe just one or two questions, so it shouldn’t be too long. We do 

have votes coming up here shortly. 

So, with that, we will go to the gentleman from Kentucky, Mr. 

Barr. You are recognized for 5 minutes. 

Mr. BARR. Thank you, Mr. Chairman. 

Just to follow up on an issue, there is a pretty good consensus 

here that we need to incentivize more private participation in flood 

insurance, obviously. But beyond the Ross-Murphy approach to 

bring in more surplus lines, companies that write NFIP policies 

currently have to sign this noncompete clause, which pushes these 

companies to the sidelines in terms of developing and offering private flood insurance policies. 

For any of the witnesses who are interested in this, would you 

support language in H.R. 2901 or other legislation that would 

eliminate this noncompete clause that is currently required by 

FEMA? 

34 

Mr. BIRNBAUM. The answer to the question is, you can’t eliminate the noncompete clause without doing anything else. Because 

if you eliminate the noncompete clause, then you have a situation 

where the company is selling policies for FEMA and also selling its 

own flood policies. 

So what the company will do is it will make its evaluation of 

what the riskiest policies are and give those to FEMA, and keep 

the most profitable ones or the least risky ones. So what you have 

is essentially adverse selection. So there is a reason why there is 

a noncompete clause. 

That is an example of, well, we will try to address one narrow 

issue without looking at the broader problem. You really need a 

comprehensive approach. And the comprehensive approach is the 

private market provides flood as part of the residential and commercial property insurance, subject to the standard State-based 

regulation; the NFIP transforms to a catastrophic reinsurer role. 

And that enables all of the players to participate—private markets, the State-based regulators, alternative capital. And it puts 

the Federal Government in a role of focusing on loss mitigation, 

which is the long-term solution to addressing flood problems. 

Mr. BARR. I would love Mr. Kelley to respond. But it seems like, 

in advocating the TRIA model, you are avoiding this adverse selection, cherry-picking issue, but you still have a Federal backstop in 

either model. And I am just wondering which is the better model? 

Mr. Kelley, do you want to weigh in on that? 

Mr. KELLEY. Just to respond to the write-your-own prohibition, 

I agree with your point, Congressman. I think that is one barrier 

that we are seeing to the standard market stepping in. If they are 

already involved in the write-your-own program, they can’t offer 

their own standalone program. 

We haven’t taken an association position on that. That has not 

been an issue we have really focused on. But it clearly is a barrier 

that I think would get more standard carriers involved if it weren’t 

there. 

Mr. BARR. Ms. Miller, do you have any thoughts? 

Ms. MILLER. Congressman, we also are in the same position. The 

NAIC hasn’t taken a look at this issue. I think it is one of the 

issues that, as we look at the NFIP and potential recommendations 

we would make to modify that program, this would be one of the 

things we would look at. 

But I do think it is a very interesting issue to look at. I think, 

from our perspective, H.R. 2901 would be a great first step. And 

if we could do that quickly, then I think having the conversation 

about changes to NFIP would make a lot of sense, as well. 

Mr. BARR. Let me just follow up with one final question. Mr. 

Birnbaum is making the argument that the Ross-Murphy bill 

would actually exacerbate the financial solvency problems of the 

NFIP. 

I think we all agree that we don’t want to get the NFIP in more 

financial distress than it already is. So, as advocates of the RossMurphy approach, do any of you all—Ms. Miller, Mr. Bradshaw, 

Mr. Kelley—want to address that issue? 

Ms. MILLER. I would be happy to. 

35 

I think the issue of cherry-picking is certainly a concern and 

something that we would recommend monitoring going forward. 

But, right now, as I have said a few times, this market is very 

small. There is just too little data, I think, at this point, to know 

how the market is going to react going forward. So, from our perspective, if this bill were enacted sooner rather than later, I think 

it would give us a chance to get more data and really observe how 

this market is going to perform going forward. 

And I think that does a couple of things. I think, one, it gives 

us—and all of us who are going to be looking at the NFIP, it will 

give us more information to inform potential changes to that program. But, also, from a State regulators perspective, I think if we 

had more data, it will help us as we look forward and think about 

ways we might need to change our regulation to address this evolving market. 

But I think, from our perspective, I certainly wouldn’t want concerns about cherry-picking to get in the way of us providing more 

options for consumers in this market. 

Mr. BARR. Mr. Kelley? 

Mr. KELLEY. And I think back to that 1-percent category of properties. We have to admit, no one is lining up to write those right 

away. And the thought of actually adding those types of coverages, 

add a flood peril to that general homeowners policy, that is going 

to price them out of their home, in our opinion. 

So if we can focus on at least shifting some of the burden out of 

the Program, you at least reduce the overall risk. That leaves you 

with, then, the category of the highest-risk properties that perhaps 

a residual market is there to figure out. And it, in our mind, would 

allow the NFIP then to focus on what do you do about mitigating 

that risk, what do you do about preventing flood damage in those 

areas. 

Mr. BIRNBAUM. I just need to jump in quickly and say it is absolutely crystal clear that this bill would allow surplus lines and encourage surplus lines insurers to cherry-pick. It is as obvious as the 

nose on your face. The only policies that the surplus lines writers 

would do are the ones that they view as profitable. 

The NFIP has a variety of policies, ranging from less profitable 

to more profitable, and what will happen is they will be left with 

the less profitable policies, the highest-risk policies, and less revenue to do it. 

There is no question this bill will lead to greater financial problems for the NFIP. And I am really surprised that the other panelists are not acknowledging that. 

Mr. BARR. I yield back. 

Chairman LUETKEMEYER. The gentleman’s time has expired. 

With that, we will go to the ranking member, the gentleman 

from Missouri, Mr. Cleaver, for some follow-ups. 

Mr. CLEAVER. Thank you, Mr. Chairman. And, again, before we 

close out, I want to thank you for the vision of trying to get this 

done much earlier than we normally try to get critical legislation 

through. 

I just have one question. My son is in school outside of Los Angeles, and I go out and I see all of these houses built on cliffs. That’s 

like saying, ‘‘I dare you to rain and wash my house down the cliff.’’ 

36 

And because I am on this subcommittee, I am always angry, driving through there, and saying little words as I drive. 

But those are usually wealthy people. The chairman and I and 

Ms. Waters, we were in the Ninth Ward just a few months ago, and 

Ranking Member Waters and I were there just a few weeks after 

Katrina. I had a son in college down there at the time. And it was 

just decimated. And the actor from Missouri, Brad Pitt, raised a lot 

of money, and they rebuilt the Ninth Ward. Most of the houses are 

now on stilts. But the people are still there. And these are not rich 

people; these are poor people. That ward was and still remains a 

low-income ward, although the people go to work every day. 

So would any of you believe that it is practical to expect that 

poor residents, low-income residents, could actually pay the full 

risk rate for private insurance? Or do they get left out? 

Mr. BIRNBAUM. The answer to that is they can’t pay the full risk 

rate if there is no loss mitigation. If they are in a high-risk area 

and they are paying the full risk rate, then, no, they are not going 

to be able to afford it. But they wouldn’t be able to afford a surplus 

lines policy either. 

But the question is then, where do you want to spend your Federal dollars? Do you spend your Federal dollars to subsidize that 

policy, or do you spend your Federal dollars on loss mitigation that 

reduces the exposure for that homeowner and thereby reduces the 

premium? 

If you just simply subsidize the rate, then you set the table for 

future claims, repetitive claims. If you spend the Federal dollars instead as an investment in loss mitigation, then you reduce that exposure, reduce the claims down the road, you reduce the disaster 

relief. 

So the model has to be: Let’s spend Federal dollars on loss mitigation as a way to make the insurance more affordable instead of 

subsidizing the rates. That is not a long-term solution. Subsidy is 

not a long-term solution. Loss mitigation investments are. 

Mr. CLEAVER. Yes, that would be a FEMA issue and not necessarily one that we would have to deal with, the mitigation issue. 

Mr. BIRNBAUM. They go together, Congressman. You can’t tell 

the NFIP to offer subsidized rates and then say, invest in loss mitigation. 

Mr. CLEAVER. They do in the real world. But this isn’t the real 

world. I would like for it to be, but that is just not the way it is. 

I understand exactly what you are saying, and I agree with what 

you are saying, if we were in the real world. 

Mr. BIRNBAUM. You have the power to create that real world. 

Mr. CLEAVER. Thank you. 

Mr. Bradshaw? 

Mr. BRADSHAW. Just very quickly, as you know, Congressman, 

there has been a huge investment in the levee system in New Orleans, which we appreciate significantly. There was a huge modernization of the levee system in New Orleans. So when you live 

behind a dam, you have to be always conscious and always vigilant 

if the dam starts leaking. 

So the National Flood Insurance Program is a very important 

program in order to help those folks who do need help to maintain 

affordable housing. We are very much in favor of that. 

37 

Mr. CLEAVER. Thank you. 

Thank you, Mr. Chairman. 

Chairman LUETKEMEYER. The gentleman yields back. 

With that, I have just a couple of follow-ups. 

Mr. Kelley, during the course of the discussion, you indicated 

that we have 1 percent of the policyholders who create 30 percent 

of the loss. Mr. Birnbaum has been talking about those guys and 

how do you adequately rate those folks, how do you fund them, how 

do you not fund them. His suggestion is you, through mitigation, 

take that 1 percent and reduce it down as much as you can, I 

guess. 

So my question is, do you believe—because today we are talking 

about how we can shift from what we have now to a more private 

market solution. Do you believe that if you take that 1 percent out, 

the other 99 percent of the policies can actuarially be structured so 

that those 99 percent can afford the coverage and take care of that 

other 70 percent of the risk? 

Mr. KELLEY. I wish I could answer that question. I am not the 

actuary in the room. I think there is a large percent of it that you 

can. What percentage, I can’t quote you. 

Chairman LUETKEMEYER. Because it would seem to me that 

would be a key point. Because if you have 1 percent causing 30 percent of the problems, that is the group that is causing your headaches. That is where your risk is. So if you can take the other 70 

percent of the risk and divide it among the 99 percent of the policyholders, you would appear to me to be able to find a way to fund 

this that would be affordable. 

So my next question would be, as someone who represents the 

industry and sees opportunity, how long do you think it would take 

for the market to transition from where we are to where they 

would be willing to take this 99 percent of the policyholder risk on? 

Mr. KELLEY. Let me start by saying it is going to take that transition to figure out how much of the 99 percent can transition. But 

that is going to take some time— 

Chairman LUETKEMEYER. We have a transition period, but how 

long do you think it would take? 

Number one, is there a willingness within your companies and 

the capacity to take this on in a 2-year, 5-year, 10-year, 20-year 

window? What would you anticipate being something that would be 

reasonable for the companies to be able to do their due diligence, 

get their mapping correct, get their modeling correct so that they 

could see where they could come in, make it a part of the homeowners policy, as Mr. Birnbaum suggested, which I, quite frankly, 

like? How long do you think it would take? 

Because one of the concerns that we have as a committee is, if 

we are going to try to go from here to there, we need to have an 

idea time-wise. And the testimony today is very important to us to 

be able to do that. And I am not going to hold you to it, but it certainly gives us a guideline to begin discussions. 

Mr. KELLEY. I would say that there is capacity already there. As 

the Commissioner already testified, most of what we are seeing 

transition out of NFIP is to surplus lines carriers now. So there is 

capital there. There is a lot of capital in surplus lines. 

38 

But, long term, our model—we wouldn’t expect that business 

would stay in surplus lines for a very long time. Many types of coverages evolve out of surplus lines into the standard market. That 

is how the model works. That is how the market should work. 

Chairman LUETKEMEYER. What you are saying is eventually it 

would go into Mr. Birnbaum’s model of being a part of the homeowners policy itself? 

Mr. KELLEY. I think you are. Eventually, as the standard market 

does their own investment in technology and modeling and expertise with the risk, I think you will see many of them start to add 

that peril to their standard homeowners policies. It is that time between now and then that our market acts as the residual market. 

Chairman LUETKEMEYER. Okay. Thank you. 

Let me yield to the gentleman from New Jersey, Mr. Garrett, for 

5 minutes. 

Mr. GARRETT. Thank you. And I won’t use the whole time. 

I thank the panel. We have been following some of your testimony back in the office. So just to play off of your points, I guess 

I will throw it out to Mr. Kelley, and I know it is in some sense 

putting you on the spot as trying to be the actuary in the room. 

And what do they say about actuaries? Those are the people who 

found being a CPA was just too exciting? Something like that. 

So, in any event, the question that you posited is what? If you 

did it what a 1 percent, 99 percent, what would the situation look 

like, and your answer was that you couldn’t exactly say for sure. 

But I am guessing that if you did it that way, that for the 99 percent—and anybody else can chime in on this—it would be a more 

favorable rating structure for them than it is right now, right? 

So, in New Jersey, if I am in, I am not, but if I am in that 99 

percent right now after the last go-around with the maps and what 

have you, I am seeing my rates go so high that I am having to sell 

my place, is what—not me, but the people back in Jersey are finding that. If you went to this 1 to 99 situation, theoretically my premiums might be more reasonable. Do you want to— 

Mr. BIRNBAUM. Yes, I don’t think so. 

Mr. GARRETT. Mr. Birnbaum, too. 

Mr. BIRNBAUM. I don’t think that— 

Mr. GARRETT. Is that true or not? 

Mr. BIRNBAUM. Here are the facts. There are 5.2 million NIFP 

policies, and there is well over a million that are subsidized. And 

the exact number isn’t known because there are a bunch of policies 

that not only are Pre-FIRM subsidized but also grandfathered— 

Mr. GARRETT. Right. 

Mr. BIRNBAUM. —subsidized. 

Mr. GARRETT. Good point. 

Mr. BIRNBAUM. So you are talking about 20 to who-knows-what 

percent of the policies are subsidized. So to suggest that if we take 

out the 1 percent somehow that all of a sudden it has become affordable for the 20 or the 30 percent where it is currently subsidized, that is just not going to happen. 

So you cannot create affordability strictly through the insurance 

pricing mechanism. 

Mr. GARRETT. So— 

39 

Mr. BIRNBAUM. There is always going to be a situation where 

some consumers can’t afford a risk-based price. And you need some 

assistance from outside the system. We don’t—for example— 

Mr. GARRETT. That gets to the second point of the question. Because I get that, but then perhaps some of those people are living 

in areas that maybe are just not a risky or an overly risky place 

to be. And that has to be taken into consideration as well. 

Does anyone think that there would be a difference if you go to 

that direction, either 100 percent or 1 to 99 percent, as far as the 

mitigation? And I heard some of the talk before as the necessity for 

mitigation, would there be a change in the mitigation processes on 

the private sector versus the public way that we do it right now? 

Mr. BIRNBAUM. Oh, absolutely, Congressman. If— 

Mr. GARRETT. For the better? 

Mr. BIRNBAUM. Yes. If the private sector were responsible for 

flood insurance as part of the homeowners policy, they would have 

an incentive for loss mitigation that they simply don’t have right 

now. 

Mr. GARRETT. Okay. 

Mr. BIRNBAUM. So you would see things like partnerships for loss 

mitigation. You might see multiyear homeowners policies where 

the loss mitigation is financed with a loan that is paid for from the 

discounts. 

Mr. GARRETT. Okay. 

Mr. BIRNBAUM. There are opportunities for innovation that simply aren’t going to occur by saying, let’s hope the private sector 

gets involved if the surplus lines puts its toes in the water. 

Mr. GARRETT. With that, I am going to yield back. I see I am 

over time. 

Chairman LUETKEMEYER. Mr. Bradshaw would like to respond. 

Mr. GARRETT. Oh, sure. 

Chairman LUETKEMEYER. Go ahead. 

Mr. BRADSHAW. Just a really quick response. Of course we now 

experience 5 percent named storm deductibles in hazard insurance 

in our particular marketplace. And so we continue to have that 

risk. And as a lender then we accept part of that risk. And that 

is typically what we are seeing unless you buy down to a 2 percent 

named storm. 

Now, that is not flood insurance, but that is the hazard insurance. And there is not much loss mitigation on hurricanes. 

Mr. GARRETT. I thank the Chair. 

Chairman LUETKEMEYER. Just as a follow-up comment to Mr. 

Birnbaum’s point, I think if you wind up with the private insurers 

trying to figure out what to do with the 1 percent and say you can 

incentivize that group for mitigation by saying if you do these 

things, we will drop your premium, and therefore you can have an 

impact in that way, I believe, as well. 

So, it is a fantastic and a fascinating conversation we have had 

this morning. And I certainly want to thank all of the witnesses. 

You have answered a lot of the questions that we have had. You 

have given us a lot of food for thought. You have kind of broadened 

our scope of what we are trying to find here and trying to look to 

do. 

40 

Trying to see once how we restructure the program, what we can 

do, what the private sector is willing to do, how different innovations can be a part of this. Regulatory-wise how this can be overseen to make sure that the consumers are protected yet there is 

adequate provisions in policies that—to provide coverages that are 

real and meaningful. So, I thank all of you. 

The Chair notes that some Members may have additional questions for this panel, which they may wish to submit in writing. 

Without objection, the hearing record will remain open for 5 legislative days for Members to submit written questions to these witnesses and to place their responses in the record. Also, without objection, Members will have 5 legislative days to submit extraneous 

materials to the Chair for inclusion in the record. 

And with that, the hearing is adjourned. 

[Whereupon, at 11:26 a.m., the hearing was adjourned.] 

(41) 

A P P E N D I X 

January 13, 2016 

42 


99799.001

CENTER for 

ECONOMIC 

JUSTICE FAIR ACCESS 

FAIR TREATMENT 

Testimony ofBirny Birnbaum 

Executive Director 

Center for Economic Justice 

Before the 

Subcommittee on Housing and Insurance 

Committee on Financial Services 

United States House of Representatives 

"How to Create a More Robust and Private Flood Insurance Market Place" 

January 13, 2016 
43 


99799.002

Bimy Birnbaum Testimony before the House Financial Services Committee 

How to Create a More Robust and Private Flood Insurance Market Place" 

Januaty 13,2015 

Chairman Leutkemeyer, Ranking Member Cleaver and Members of the Subcommittee, 

my name is Bimy Birnbaum. I am the Executive Director of the Center for Economic Justice, a 

non-profit consumer organization that advocates on behalf of consumers on financial service 

issues, with particular emphasis on the availability and affordability of essential insurance 

products. Thank you for the invitation to speak before the Subcommittee in today's hearing. 

The availability and affordability of flood insurance is a critical issue for individual and 

community well-being, economic development and a resilient and sustainable future. I have 

worked on these issues for over 20 years as an insurance regulator, consulting economist and 

consumer advocate. 

Your invitation to testify asks whether the National Flood Insurance Program (NFIP), as 

it is presently constituted, represents an ideal model for the effective protection of residential and 

commercial property owners from damages related to flooding. 

The answer to that question is a resounding no for a number of reasons. The primary 

problem of the NFIP is the multiple and conflicting goals that Congress has tasked the program 

with and the constraints and requirements Congress has placed on the program. The NFIP has 

been tasked, in whole or in part, with: 

• Providing insurance coverage to individual homeowners and business for the peril 

of flood as an alternative to disaster relief; 

Promoting the sale of flood insurance with broadly-subsidized rates; 

• Removing subsidies and moving to risk-based or "actuarial" pricing; 

• Addressing repetitive claims for properties in high-risk areas; 

• Addressing problems of affordability of flood insurance 

• Identifying and mapping flood risk through an interactive process with local 

governments; 

• Paying back past flood insurance losses that greatly exceeded revenues collected; 

and 

• Promoting flood loss mitigation and prevention 

With such varied and conflicting responsibilities and limitations, it is not surprising that 

the NFIP has been a poor flood insurance program. 

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Bimy Birnbaum Testimony before the House Financial Services Committee 

How to Create a More Robust and Private Flood Insurance Market Place" 

January 13, 2015 

The very first step for Congress to address problems with the NFIP is to clarifY not only 

the role of the NFIP, but the goals for federal expenditures in the area of flood loss mitigation 

and disaster relief. The starting point for Congress and the federal government should be that the 

goal of federal expenditures for disaster relief and loss mitigation related to flood is to promote 

more resilient and sustainable homes, businesses, communities and infrastructure against the 

peril of flood. With this as the clear goal, then any proposals regarding the NFJP can be 

evaluated by asking- does this change promote resiliency and sustainability or not? 

The reason why resiliency and sustainability must be the overarching goal and guiding 

principle for restructuring the NFIP is that there is no insurance mechanism- public, private or 

public-private- that will be able to finance increasingly frequent and severe flooding. Stated 

differently, the only long-term solution to flooding is massive investment in flood loss 

mitigation. Such loss mitigation accomplishes three critical things 

1. Reduces the loss of life and property from flooding events; 

2. Creates greater potential for insurance to cover the more manageable remaining flood 

risks; and 

3. Reduces government expenditures on disaster relief in the future. 

Loss mitigation and flood insurance are the essential foundation for individual, business, 

community and national economic security, economic development and national security. 

Investments in loss mitigation coupled with flood insurance mean that flood events cause less 

damage than in the absence of the mitigation and, when flooding does occur, more of the damage 

is insured. Lesser damage with flood insurance coverage means much quicker recovery by 

individual and businesses from the catastrophic event. From the perspective of a taxpayer 

looking at federal expenditures, those expenditures become far more than disaster relief, but are 

investments in resiliency and sustainability which mean fewer federal expenditures in the future 

for disaster relief that would otherwise be required. 

Step I is Congressional clarity on the role of the NFIP and the Federal Government in 

flood prevention and flood disaster relief- and that role is to view federal expenditures as 

investments in resiliency and sustainability. Matched against this goal and operating principle, 

the current structure of the NFIP fails. The problems include 

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Bimy Birnbaum Testimony before the House financial Services Committee 

How to Create a More Robust and Private Flood Insurance Market Place" 

January 13,2015 

Relatively few homeowners and businesses purchasing flood insurance and consequently relying 

on disaster relief or savings to recover from flooding events. 

The NFIP currently over 5.2 million policies in force 1 but many consumers in Special 

Flood Hazard Areas (SFHA- areas designated by FEMA as at higher risk of flooding) don't 

purchase flood insurance. The NFIP states that only 23.3% of homes in SFHAs have flood 

insurance. And even though many flood events occur outside of Sf-liAs, an even smaller 

percentage of consumers outside of SF HAs purchase flood insurance. 

The absence of insurance for flood damage reduces the resiliency of homeowners and 

businesses. In its second report on flood insurance affordability, the National Academy of 

Sciences Committee on the Affordability of National Flood Insurance Program Premiums wrote:2 

A resilient community is one which has the capacity to ·'absorb change and 

disturbances," returning quickly to full function. One test of community resiliency is its 

ability to recover from a major flood. 

The disruptions most relevant to NFIP flood insurance are direct damages to property and 

its content~. Following a flood, property owners bear the responsibility for repair or 

replacement of damaged buildings. Residential structures may be damaged or destroyed, 

relocating population and disrupting community cohesion. In some cases, property 

owners may have the financial resources--either available funds or borrowing capacityto move quickly to restore properties to pre-flood conditions. However, many if not most 

property owners are not in a position to finance major, unanticipated repairs, let alone 

complete reconstruction. The other means of dealing with flood damage are: 

• Abandon the property, either in full or in part; 

Use post-flood disaster assistance (in the form of grants or low-interest loans) and 

other funds as needed to make needed repairs or replacements; or 

• In the case of properties covered by flood insurance, use insurance proceeds and other 

funds as needed to make needed repairs or replacements. 

The first option is, of course, the antithesis of resiliency. If this is the result for some 

number of properties throughout a community, then the structure and the function of the 

community are lost or, at best, seriously damaged. 

1 NFTP Presentation at PC! Flood Conference, 2015. http://www.pciaa.netidocs/default-source/default-documentlibrary/tom-and-andv-show-\vednesday-9-30am-salons-5-6.pdf'?sfvrsn'""2 

' Affordability ofNational Flood Insurance Program Premiums-- Report 2 (hereafter "NAS Affordability Report 

2") at page 31 

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Birny Birnbaum Testimony before the House Financial Services Committee 

How to Create a More Robust and Private Flood Insurance Market Place" 

January 13,2015 

For any significant damage, it would appear that the property owner must bear the bulk of 

the financial responsibility. Clearly some may be unable to do so. Insurance can thus be 

resiliency enhancing in that it can make the funds needed for rebuilding available to 

disaster victims. In summary, reliance on disaster aid seems likely to produce only partial 

recovery and that only after some delay. For both reasons, some community resiliency is 

lost. 

Communities with high takcup rates can be expected to be more resilient than those, 

which rely on self-funding and government assistance. High takeup rates will be 

associated with not only more complete recovery of community structure and function, 

but also more timely recovery. 

Improper price signals to individuals and businesses making investment decisions about propertv 

purchases. 

Many NFIP policyholders over a million, but the exact number is unknown- are 

presented a flood insurance premium that is less than cost of insuring the property- subsidized 

rates. The subsidized rates arise from several rating practices of the NFIP, some of which are 

required by Congress and some of which are not. Congress has mandated that some pre-Flood 

Insurance Rate Map (pre-FIRM) pay less than the risk-based premium. Congress has also 

mandated that certain properties are ''grandfathered" at certain rates even if the information or 

environment has changed such that the risk-based rate would be higher for these properties. The 

NFIP calculates the aggregate amount of the subsidy for grand fathering, divides this amount by 

the number of non-Grandfathered policies and adds that amount to the non-grandfathered 

policies. Finally, the NFIP evaluates f1ood risk in SFHAs by dividing the properties into 30 

groups ranging from lowest to highest risk. The NFIP then uses the average expected claim 

costs for all 30 zones for the claim cost, and subsequent premium, for properties in any of the 30 

zones. 

The NFIP rates would not meet state insurance regulation requirements that rates be not 

excessive, not inadequate and not unfairly discriminatory. Commissioner Kevin McCarty of the 

Florida Office of Insurance Regulation, in a letter to Florida State Senator Jeff Brandes wrote: 

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Birny Birnbaum Testimony before the House Financial Services Committee 

How to Create a More Robust and Private Flood Insurance Market Place" 

January 13,2015 

Without data and further analysis though, we can say that the rates are unfairly 

discriminatory. NFIP has developed its rating based on multiple zones that are combined 

to determine rates, with 30 different A zones and separately 30 different V zones. Those 

zones are defined based on a theoretical determination of the probability of flooding (the 

V zones are more coastal). These are averaged together to charge one rate across the 

country. The averaging together of zones with different costs and charging one rate 

would be considered unfairly discriminatory from an actuarial perspective which would 

not pass scrutiny under Florida law. 

Substantial subsidies within insurance rates- meaning substantial deviation from costbased or risk-based pricing- means that consumers and businesses considering an investment in 

real property are not facing the proper price signals regarding the cost of maintaining and 

protecting that property. The result is that properties are built (and purchased) in areas of 

significant flood risk, but that risk is hidden by inadequate flood insurance prices. And when 

Congress tries to move away from those subsidies, many homeowners face the untenable 

situation of not being able to afford the risk-priced flood insurance or sell their now-devalued 

home. 

Inadequate incentives for loss mitigation due to subsidized rates; 

Subsidized rates not only encourage real property investments in areas of great flood risk, 

but also reduce the incentives for Joss mitigation investments. If the cost of effective loss 

mitigation is, say $10,000, a consumer facing a subsidized $500 flood insurance premium faces a 

different cost -benefit analysis than a consumer facing a risk-based $2,500 premium. 

In this example, the first consumer will very likely not make the mitigation investment, 

meaning that the property is less resilient than it could be and the NFIP is more likely to pay 

claims or government is more likely to pay some form of disaster relief. With the second 

consumer, the $10,000 investment reduces the NFIP premium to $500, but the more resilient 

home now poses less risk for the NFJP and government and, most important, is far less 

susceptible to damage from a llood event. 

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Bimy Birnbaum Testimony before the House Financial Services Committee 

How to Create a More Robust and Private Flood Insurance Market Place" 

January 13, 20 !5 

Federal expenditures for disaster relief that leave individuals and communities more susceptible 

to future loss instead of more resilient and sustainable. 

FEMA has worked hard to promote loss mitigation to prevent damage from flood events, 

recognizing that federal dollars spent on disaster relief which do not strengthen and fortify 

structures and infrastructure will not reduce federal expenditures on disaster relief for future 

events. But the pricing practices of the NFIP undermine FEMA's and our nation's efforts at 

building a more resilient and sustainable building stock and economy. Federal dollars spent on 

flood insurance subsidies encourage the kind of development that is more susceptible to damage 

from flood events. Instead of federal expenditures as investments in resiliency and 

sustainability, the federal expenditures on NFIP flood premium subsidies make increased future 

federal expenditures for disaster relief more likely. 

Subsidies for consumers who do not need financial assistance and lack of or inadequate 

government assistance for those who do need financial assistance to purchase flood insurance or 

invest in flood mitigation. 

The current system of subsidies within the NFJP flood insurance rates is the worst 

possible way to provide financial assistance to those consumers who cannot afford flood 

insurance because the broad-based subsidies go to policyholders regardless of their ability to 

afford the flood insurance premium. From an economic perspective, it is highly inefficient and, 

from an equity perspective, it is hugely unfair to provide subsidies to consumers who could and 

would pay their fair share. 

In addition, the subsidies are so broad that there is no guaranty that even the subsidized 

price is affordable for many consumers. Stated differently, the NFIP subsidies don't take into 

account individual policyholder ability to pay, so there is no clear link between the subsidized 

Hood premium and more consumers purchasing Hood insurance. Subsidies are likely going to 

many who don't need the subsidy, while the subsidies are likely insufficient for others. 

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Bimy Birnbaum Testimony before the House Financial Services Committee 

How to Create a More Robust and Private f'lood Insurance Market Place" 

Januacy 13, 2015 

Subsidies by some taxpayers of other taxpayers in the offer of and cost to deliver flood 

protection. 

The NFIP has argued in public forums that taxpayers are not subsidizing the NFIP and 

will not do so unless and until Congress forgives the $24 billion NFIP debt to the Treasury 

Department. Putting aside the fact that the NFIP has repaid little of the debt incurred for Katrina 

and later flood events, the fact is that the NFIP is also not establishing reserves as required by 

Congress. The current NFIP structure not only causes some NFIP policyholders to subsidize 

other NFIP policyholders, but causes taxpayers in some states to subsidize flood insurance 

purchased by taxpayers in other states. 

Inefficient delivery of coverage for flood with additional administrative costs for private insurers 

to sell the NFIP policy separate from the standard residential or commercial property insurance 

PQ)_ky, 

The NFIP policy is a standalone flood insurance policy which a homeowner or business 

must purchase in addition to the residential or commercial property insurance covering fire and 

perils. This is a very inefficient approach to delivering flood insurance protection for several 

reasons. First, the requirement of a consumer to purchase a separate policy in addition to the 

homeowners policy is an impediment to the purchase of flood insurance. Second, the NFIP 

policy includes its own administrative, sales and claim settlement costs. The NFIP utilizes 

private insurers to sell and administer the NFIP policies and pays them a significant portion of 

the premium to do so- 15% of premium for agent commission for sales and 12% of premium for 

WYO operating expenses. The GAO, in one of its many reports on the NFIP, questioned 

whether the payments to WYO insurers are reasonable in comparison to services provided.3 

However, the reasonableness ofFEMA's compensation to WYOs is unclear. As we 

found in 2009, FEMA does not systematically consider actual flood insurance expense 

information when it determines the amount it pays WYOs for selling and servicing flood 

insurance policies and adjusting claims. Rather, since the inception of the WYO program, 

FEMA has used various proxies for determining the rates at which it pays the WYOs. 

Consequently, FEMA does not have the information it needs to determine (I) whether its 

payments are reasonable and (2) the amount of profit to the WYOs that is included in its 

1 April 9, 2014 Letter from GAO to Representative Neugebauer. "Overview of GAO's Past Work on the National 

Flood lnsurance Program," at page 14. 

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Birny Birnbaum Testimony before the House Financial Services Committee 

How to Create a More Robust and Private Flood Insurance Market Place" 

January 13,2015 

payments. As part of our 2009 report, we compared expense payments FEMA made to 

six WYOs to the WYOs' actual expenses for calendar years 2005 through 2007. We 

found that the payments exceeded actual expenses by $327.1 million, or 16.5 percent of 

total payments made. We concluded that opportunities existed for FEMA to improve its 

oversight of the WYO program and ensure that payments to the participating insurance 

companies were based on actual company expenses, thereby improving the program's 

cost-effectiveness. 

Third, the use of the NFIP of WYO insurers to settle NFIP claims creates a conflict of 

interest for the WYO insurer because the insurer is tasked with determining whether the claim is 

covered under the homeowners policy (which the WYO insurer would pay) or a flood claim 

excluded from the homeowners policy and covered by the NFIP (which the WYO insurer would 

not pay.) This arrangement Jed to major claim settlement disputes between consumers and 

private insurers following Hurricane Katrina. At best, the arrangement is inefficient because in 

many cases the cause of damage is unclear between wind and water. 

Lack of standard insurance consumer protections found in state regulation of residential and 

commercial property insurance. 

The state-based insurance regulatory system is over I 50 years old and has a long record 

of overseeing insurance companies that sell property insurance, the policy forms and rates these 

companies use, the advertising and disclosures and sales practices of the insurers and their agents 

and the claims settlement practices of the insurers. A great body of insurance law, regulation and 

market regulation practice has developed for these property insurance products. While consumer 

advocates like my organization believe the state-based system can be significantly improved, the 

consumer protections provided the states are far greater than those that exist for NFJP insurance. 

The NFJP is outside of state insurance oversight with the result that activities like NFIP claim 

settlement do not have the same consumer protections as homeowners insurance claims. 

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Rimy Birnbaum Testimony before the House Financial Services Committee 

How to Create a More Robust and Private Flood Insurance Market Place" 

January 13,2015 

Lack of a residual market for flood insurance, leaving force-placed flood insurance as the de 

facto residual market. 

The vast majority of states have what is known as a "residual market insurer" for those 

consumers unable to find insurers willing to sell property insurance to the consumer. These 

residual markets, often called FAIR plans, are state-based insurers or insurance mechanisms that 

serve as insurers of last resort for consumers unable to find insurance is the "voluntary" market. 

In some states and during some periods, the residual market has grown very large as private 

insurers have retreated as was the case in Florida where the insurer of last resort, the state-run 

Florida Citizens, grew to become the largest insurer in the state. Residual markets are an 

important consumer protection because they provide insurance when the voluntary market is 

unwilling to do so. 

There is no residual market for flood insurance the NFIP is both the primary insurer and 

market of last resort. While the NFIP will rarely refuse to issue an insurance policy, many 

consumers who are required to have flood insurance fail to purchase the NFIP policy or other 

voluntary flood policy. The result is that, if these consumers have a mortgage, the mortgage 

lender/serviccr will force-place flood insurance and charge the homeowner for the force-placed 

coverage. Force-placed flood is effectively the residual market for flood insurance, but the 

coverage is not comprehensive (no coverage for personal property/contents or additional living 

expense) and is very expensive due to the reverse competitive nature of force-placed insurance 

markets. 

Private property insurer and state residual market coverage of flood is not a panacea for 

force-placed flood insurance, since the lendcrs/servicers often have a financial interest in forceplacing insurance. But, a residual market alternative could help. 

Why Don't Private Insurers Write Flood Insurance? 

Some private insurers do write flood insurance. Insurers selling force-placed insurance 

offer force-placed flood coverage as well as force-placed hazard for residential and commercia[ 

properties. Much of the force -placed flood is written through admitted insurance companies 

while some is written by surplus lines insurers. Auto insurers also cover damage to vehicles 

from flood. 

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Bimy Birnbaum Testimony before the House Financial Services Committee 

How to Create a More Robust and Private Flood Insurance Market Place" 

January 13, 2015 

Notwithstanding these examples of private insurers offering flood coverage, insurers who 

sell residential and commercial property insurance typically exclude flood as a covered peril. 

Why don't these insurers provide flood coverage? The short answer is they don't have to. The 

substantive reasons insurers offered over 40 years ago are no longer compelling- lack of 

information to evaluate flood risk and inability to spread risk concentrated in flood zones. 

Today, insurers have or could obtain information to evaluate flood risk and have the ability to 

spread risk by including flood coverage in all policies. However, excluding a low-frequency, 

high-severity peril that means that flooding doesn't happen often, but can cause massive 

damage when it does- is a long-standing practice of insurers to manage risk and, particularly 

important for publicly-held insurers, a way to ensure smooth earnings for investors. 

Otber impediments to private insurers offering flood coverage have been competing with 

subsidized rates of the NFIP, lack of reliable data on flood risk and lack of reinsurance. The 

situation, however, has changed. Most importantly, there are now much greater and better data 

on flood risk. Catastrophe modelers produce flood models, just as they produce the hurricane 

and wildfire catastrophe models used by insurers. There is also much more information 

available about building structure and elevation to go along with enhanced data on flood risk. 

And, although over a million NFIP policyholders received subsidized rates, there are millions of 

NFIP policyholders who now pay more than risk-based rates a private insurer would charge. 

There has been more interest recently by surplus lines insurers to sell flood insurance 

policies in competition with the NFIP. Surplus lines or nonadmitted insurers can be 

distinguished from admitted insurers in the following ways. 

Admitted insurers are licensed by a state insurance department to sell certain types of 

insurance in the state. These insurers are subject to regulatory requirements for filing and 

approval of policy fonns (the insurance contract) and rates, are subject to the state's consumer 

protection laws regarding unfair trade practices and unfair competition and participate in the 

state guaranty fund system (which pays claims in the event the admitted insurer becomes 

insolvent). The state guaranty fund system is a critical part of the state policyholder protection 

framework. 

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Bimy Birnbaum Testimony before the House Financial Services Committee 

How to Create a More Robust and Private Flood Insurance Market Place" 

January 13, 2015 

In contrast, surplus lines insurers are not licensed by state insurance departments. Rather, 

the state insurance departments regulate surplus line agents who are authorized to place coverage 

with a surplus lines insurer on a list of acceptable insurers. Surplus lines policy forms and rates 

are not subject to regulatory oversight and surplus lines insurers do not participate in state 

guaranty funds. 

Most states have a requirement that a surplus lines agent cannot place coverage with a 

surplus line insurer if that coverage is available in the admitted market. One common 

requirement is for a surplus lines agent to seek coverage from two or three admitted carriers and 

document the declinations before placing the coverage with a surplus lines insurer. 

The Way Forward 

As an economist who has studied insurance markets for over 20 years, I understand the 

power of market forces to promote efficient delivery of essential financial products to 

consumers. I also understand and have seen how government can effectively intervene in 

insurance markets when those markets are not competitive. In many instances, regulatory 

intervention in insurance markets promotes more competitive markets by empowering 

consumers and setting a level playing field among insurers. And in some instances, private 

markets are unwilling or unable to provide necessary insurance products. However, flood 

insurance is not one of those products- private insurers can offer flood insurance and can do so 

more efficiently and effectively than the NFIP. Stated differently, there is a long-established 

state-based insurance regulatory system that has overseen property insurance for 150 years and 

this state-based system of largely private insurers can and should offer property insurance 

covering the peril of flood. 

Relying on the state-based insurance regulatory system to oversee the delivery of 

property insurance coverage for flood insurance by private insurers is the best way for Congress 

to move federal government expenditures and activities towards investments in resiliency and 

sustainability related to flood risk. There are four key actions needed by 2017 to get private 

insurers in the business of providing flood insurance and to get the federal government out of 

that business and, instead, focused on flood risk mitigation. 

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Bimy Birnbaum Testimony before the House Financial Services Committee 

How to Create a More Robust and Private Flood Insurance Market Place" 

January 13, 20!5 

I. Get the NFIP out of the business of being a flood insurance company by requiring that 

residential and commercial property insurance policies sold by private insurers (and some 

state residual market insurers) cover the peril of flood. This requirement turns flood 

insurance back to the states - where all other property insurance products and markets are 

regulated- and back to private insurers, reinsurers and catastrophe modelers, who have 

the capability and capital to provide flood coverage more comprehensively and 

efficiently than the Federal government. 

2. Transition the NFIP from a direct provider of insurance to a mega-catastrophe reinsurer, 

utilizing the successful model of Terrorism Risk Insurance Program 

3. Address the affordability problem of flood insurance with federal, state and local 

assistance outside of the insurance system -no subsidies in insurance pricing- with an 

overwhelming emphasis on assistance for loss mitigation as the tool to create more 

affordable premiums. 

4. Reauthorize the NFIP to continue sale of flood insurance during a finite transition period 

to coverage of flood risk in residential and commercial property insurance policies sold 

by private insurers and state residual markets, overseen by state insurance regulators. 

Benefits of Requiring Coverage for Flood as Part of Residential and Commercial Property 

Insurance Policies 

There are a number of benefits to requiring the peril of flood be included in residential 

and commercial propctiy insurance policies currently sold by private insurers (and some state 

residual market insurers). These benefits include: 

l. More efficient and lower-cost delivery of flood coverage than through a separate NFIP 

policy. By adding flood to the other covered perils in existing property insurance policies, 

private insurers can deliver that coverage with less administrative and claim settlement cost than 

the NFIP. As discussed above. the NFIP pays a significant portion ofNFIP policy premium to 

WYO insurers as commission and operating expense and the NFIP incurs its own expenses for 

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Bimy Birnbaum Testimony before the House Financial Services Committee 

How to Create a More Robust and Private Flood Insurance Market Place" 

January 13,2015 

issuing and administering policies. Including flood in existing property insurance policies will 

eliminate a significant portion of the administrative expense not only because the costs of a 

second policy are eliminated, but because the remaining administrative costs will be subject to 

competitive market forces instead ofWYO insurers simply taking close to 30% of the NFIP 

premium with no relation to costs incurred by these insurers. 

A second and equally important efficiency would be in claims settlement. Instead of the 

NFIP paying a WYO insurer to determine whether a loss was the result of wind covered by the 

WYO's policy or flood covered by the NFIP policy, an insurer settling a claim for a property 

insurance policy which covers flood will simply settle the claim. Instead of multiple parties 

involved in the claim settlement process, it will be the private insurer who sold the policy subject 

to a long-established state-based regulatory system of consumer protections for insurance claims 

settlement practices. 

2. Accurate prices to consumers and businesses making investment decisions on the 

purchase of real property. By including flood in property insurance policies overseen by state 

insurance regulators, the prices for insurance will be subject to cost-based pricing requirementsrates must not be excessive, inadequate or unfairly discriminatory. Accurate risk-based pricing 

is essential to enable consumers and businesses to make informed decisions about the true cost of 

purchasing and maintaining the property purchased. In addition to other problems, subsidized 

rates don't do consumers or businesses a favor because they mask the true cost of the property 

and leave the consumer or business in an untenable position when the subsidy is removed. 

3. Cost- or Risk-Based Prices provide the proper economic signals for investment.~ in loss 

mitigation. With subsidized rates, cost-effective investments in loss mitigation do not appear 

cost-effective. Cost-based prices arc essential for greater investments in flood risk mitigation. 

4. Unleash the expertise of private insurers, reinsurers and catastrophe modelers on flood 

risk identification and mitigation. United States' property insurers have had little involvement 

in flood risk mitigation efforts because they have little or no "skin in the game." This is in sharp 

contrast to property insurers in other developed countries who actively and aggressively partner 

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Birny Birnbaum Testimony before the House Financial Services Committee 

How to Create a More Robust and Private Flood Insurance Market Place" 

January 13, 2015 

with government to promote and implement flood risk mitigation strategies. In 1968, when 

Congress passed the National Flood Insurance Act, it may have been the case that private 

insurers did not have the capability to insure flood risk. That is not the case today. The property 

casualty industry is very well capitalized, reinsurers are eager to cover flood risk, alternative 

capital (catastrophe bonds and insurance-linked securities) now exists and catastrophe modelers 

are fully capable of modeling flood risk as they do for hurricane, wildfire and other perils. 

Moreover, these private market participants are better capable of keeping flood maps current to 

changing flood risk- information essential for proper insurance pricing and for maximizing loss 

mitigation investments. 

5. Private sector incentives for flood risk mitigation. For decades, a private insurance 

advisory organization has performed fire safety ratings for communities around the country, 

ranking the capabilities of communities and their fire departments on fire safety and fire 

response. These fire safety ratings arc a factor in property insurance rates and provide incentives 

for communities to invest in fire protection since these investments result in lower property 

insurance rates for community members. By moving flood insurance out of the NFIP to private 

insurers, this same type of private sector community flood risk rating could provide the same 

beneficial results as fire safety rating. 

6. All consumers and businesses will have coverage they expect and pay their fair share 

for that coverage. Under the current law, only certain properties in certain areas are required to 

have flood insurance with the result that far too many consumers and businesses are uninsured 

for flood risk. Flooding events over the past ten years, in particular, show that flood occurs in 

areas other than those designated as Special Flood Hazard Areas. By requiring flood be part of 

property insurance coverage, flood risk will be provided to all with the result that consumers and 

businesses will not be surprised to discover their property insurance policies exclude the 

coverage they expected. 

In addition, the pricing of flood insurance protection can be more equitable and 

transparent. It would be more equitable because consumers and businesses in very low risk areas 

will pay very little- but they will pay something to reflect the small risk. Consumers and 

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Birny Birnbaum Testimony before the House Financial Services Committee 

How to Create a More Robust and Private Flood Insurance Market Place" 

January 13, 2015 

businesses in high-risk areas would be charged more for flood insurance coverage- providing 

better price signals on the cost of maintaining the real property and the cost-effectiveness of 

mitigation investments. Affordability issues will remain, but those issues will be addressed not 

by skewed pricing in the insurance system, but by means-tested assistance, discussed below. 

Cost-based pricing by private insurers- with required disclosure to policyholders is more 

transparent and fair than the current system of hidden subsidies by some NFIP policyholders of 

other NFIP policyholders and by some taxpayers of others. 

7. Promote more resilient consumers, businesses and communities. By having far more 

flood insurance in place, consumers, businesses and communities will be better able to quickly 

recover from damage caused by flooding events. 

8. Promote a larger, more diversified risk pool. With flood as part of property insurance 

policies, private insurers can diversify flood risk across multiple perils and across the entire 

country. This greater risk diversification means greater ability and willingness of reinsurers and 

alternative capital to support primary insurers. 

Transition the NFIP from Direct Insurer to Mega-Catastrophe Reinsurer 

One aspect of flood risk that holds back private insurers is the low-frequency, very high 

severity of flood events. This means that flooding events don't happen very often- compared 

with auto collisions or house fires, for example- but when floods do occur, the damage (and 

insured loss if flood is a covered peril) can be huge. While insurers can and do handle 

catastrophe risk by diversifying across multiple perils and broad geographic distribution of 

policies and by purchasing reinsurance and otber forms of catastrophe protection like catastrophe 

bonds, the potential for a flood event causing massive damage does deter private insurers from 

insuring flood risk. To address this concern and to promote private market sale of flood 

insurance, Congress should transform the NFTP fi:om a direct provider of insurance to a reinsurer 

for mega-catastrophic flood events- the same model as the successful Terrorism Risk Insurance 

Program (TRIP). TRIP is a federal program that provides reinsurance for mega terrorist events 

with the federal government's responsibility beginning only after private insurers have incurred a 

certain level of claims/losses from a terrorist event. 

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Bimy Birnbaum Testimony before the House Financial Services Committee 

How to Create a More Robust and Private Flood Insurance Market Place" 

January 13, 2015 

A federal flood reinsurance program should have even higher trigger points- the level of 

losses at which the federal reinsurance steps in- than TRIP because reinsurers and alternative 

capital seem far more interested and willing to provide coverage for flood than for terrorism. It 

is essential that the trigger for federal reinsurance payments not be too low and crowd out willing 

reinsurers and alternative capital. In addition and unlike the TRJP, the NFIP as a megacatastrophe flood reinsurer should charge a fee or premium for the reinsurance provided. 

Address Affordability Issues Outside of Insurance Pricing With Overwhelming Emphasis on 

Loss Mitigation to Reduce Financial Burden 

There is and will be a need for financial assistance to some consumers who cannot afford 

the cost of flood insurance coverage as the price of that coverage moves to the risk-based price. 

By requiring flood coverage as part of property insurance policies sold by private insurers and 

state residual markets, the cost of that coverage should be significantly less than it would be for a 

risk-priced NFIP policy because of the efficiencies of including flood in an existing policy 

instead of selling a second policy. But, the risk-based cost of flood coverage will still be greater 

than present for some consumers and unaffordable for many. 

There is a need for financial assistance to those who cannot afford flood insurance. That 

financial assistance must be governed by four operating principles: 

I. Financial assistance should he provided only to those who do not have the income or 

wealth to afford the required insurance. Taxpayers paying for government expenditures 

should not be asked to subsidize insurance for those who have the income and wealth to 

afford the required insurance. 

2. Financial assistance should not he provided through distortion of insurance prices by 

subsidized rates. As discussed above, cost-based pricing is essential for moving towards 

more resilient and sustainable homes, business and communities. 

3. Financial assistance should overwhelmingly be provided through grants and loans for 

loss mitigation as a way to lower insurance premiums. The key role of government at 

all levels should be to partner with insurers, homeowners and businesses to invest in loss 

mitigation as the key path to building more resilient and sustainable structures and to 

reduce government spending on disaster relief in the future. Financial assistance for loss 

17 
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Birny Birnbaum Testimony before the House Financial Services Committee 

How to Create a More Robust and Private Flood Insurance Market Place" 

January 13, 2015 

mitigation which reduces the insurance premium because of lower risk of loss should be 

emphasized over grants or payments to insurers to cover the cost of insurance premiums 

because such payments have a similar impact as subsidizing rates- distortion of the price 

of insurance and the cost of protecting and maintaining real propetty. 

4. Financial assistance should be a partnership between government, insurers and 

policyholders. The involvement of insurers is essential because it is the discounts for 

loss mitigation efforts which effectively finance the loss mitigation and because insurers 

are in the position of facilitating loss mitigation financing by, for example, offering 

multi-year policies which might match the term of a loss mitigation loan. 

Reauthorize the NFIP to continue sale of flood insurance during a finite transition period 

The NFIP comes up for reauthorization in 2017. More time is needed to transition the 

sale of tlood insurance from the NFlP to private insurers offering tlood coverage as part of 

standard residential and commercial property coverages. I estimate that three years will be 

needed once Congress establishes the requirements of our flood insurance proposal. If, by 2017, 

Congress passed and the President signed the required legislation, the NFIP would need to be 

reauthorized until 2020 during the transition period to private market responsibility for flood 

insurance protection. States would need to clarify and establish requirements for flood coverage 

in residential and commercial property insurance policies and insurers would need to file policy 

forms and develop rates reflecting the flood risk. Reinsurers and catastrophe modelers would 

need to develop their flood-related products. And, most important, FEMA, or whichever agency 

Congress determines should be responsible, needs to develop the programs and partnerships for 

identifying consumers in need of financial assistance and delivering the assistance is a variety of 

ways, including partnerships with state and local governments and insurers. 

18 
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Bimy Birnbaum Testimony before the House Financial Services Committee 

How to Create a More Robust and Private Flood Insurance Market Place" 

January !3, 2015 

Comments on H.R. 2901, the Flood Insurance Market Parity and Modernization Act 

As we have seen over the past decade, the Congressional changes to the NFIP has lurched 

from efforts at longer-term reform to responses to current crises- with the responses to current 

crises often contributing to bigger problems down the road. H.R. 2091 is a response to a current 

issue- federal agencies have been slow in promulgating rules regarding private flood insurance 

and surplus lines insurers see an opportunity to pick offNFIP policies that are mispriccd or 

overpriced due to the NFIP rating practices. 

H.R. 2091 will not address the longer-term problems of the NFIP, will not meaningfully 

promote private market participation in the sale of flood insurance and will create bigger 

problems in the future when flood events occur. In addition, the legislation effectively tasks 

state insurance regulators with oversight of the federal requirement for flood insurance, but 

removes the key requirement in current law that the insurance be subject to standard state-based 

insurance regulatory requirements. 

H.R. 2091 adds an option for lower coverage amounts. Instead of the minimum coverage 

amount for certain NFIP policies being the lesser of replacement cost or NFIP maximum 

coverage amount, the legislation makes the minimum coverage the lesser of unpaid principal 

balance, replacement cost or the NFIP maximum coverage amount. First, it is unclear that 

lenders will lower their requirements for coverage in response to this change. Lenders routinely 

require more than the minimum required flood coverage and have force-placed flood insurance 

for the difference between the NFIP coverage amount and the coverage amount required by the 

lender/servicer.4

• Federal agencies and the United States are on record arguing that the coverage 

requirements of 42 USC 4012a(a) are minimums and not ceilings on coverage amounts that 

lenders may require:' 

More important, the "benefit" of a lower premium today will be long forgotten when a 

flooding event occurs and the homeowner has inadequate coverage to repair her home. 

4 For example, see '"Adding Insult to Injury: Lenders force homeowners into costliest flood coverage," 

Syracuse.com, May !3, 2012 at 

http:!/'"-"-"w.syracuse.com/news/index .. sst/20 12/PJi;Idding insult to insurance len.htm! 5 See "Brief for the United States as Amicus Curiae" in No l!-2030 United States First Comt of Appeals, Kolbe v 

BAC Home Loans Servicing, et at. 

19 
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Birny Birnbaum Testimony before the House financial Services Committee 

How to Create a More Robust and Private Flood Insurance Market Place" 

January 13, 20 15 

If the homeowner is unable to afford the insurance premium for the needed replacement 

coverage, then he or she is unlikely to be able to afford the large out of pocket to make up the 

difference between repair costs and insurance proceeds. This is an example of a short term fix 

creating a longer-term problem because the inadequate insurance coverage means, at best, 

inadequate repairs leaving the home more susceptible to future damage and, at worse, the 

homeowner losing the home. It is inconsistent with the primary goal of promoting greater 

resiliency and sustainability. 

H.R. 2091 attempts to encourage private market provision of flood insurance by 

eliminating state regulatory oversight of private residential flood insurance by defining "private 

flood insurance" to include surplus lines insurers and also by eliminating federal oversight by 

removing the current consumer protection requirements for private flood insurance, the authority 

and responsibility of federal agencies to implement those requirements in a regulation and the 

authority of the Government Sponsored Enterprises (GSEs) to establish standards for the claims 

paying ability of insurers providing flood insurance on mortgages the GSEs own or insure. 

The result of these changes is to facilitate the sale of private flood insurance by surplus 

lines insurers. I understand that the logic behind this approach is that admitted insurers are not 

willing to write private flood insurance, but surplus lines insurers would be if requirementssuch as comparability with the NFIP policy or claim settlement requirements- were relaxed. 

The story continues that once surplus lines insurers are offering private tlood insurance, admitted 

insurers will become more comfortable with selling private flood and proceed to do so. I have 

seen no empirical evidence to remotely suggest admitted insurers will do as suggested. I am not 

aware of a personal lines insurance product or coverage which migrated from surplus lines to 

admitted carriers because of market forces. I have seen surplus lines insurers write business that 

admitted insurers would have written and I have seen personal lines business migrate from the 

admitted market to surplus lines when permitted to do so. 

The actual result of these changes will be for surplus lines insurers to cherry-pick NFIP 

policies that are currently overpriced due to the NFIP's broad rating scheme and loadings for 

contingency and reserves. Earlier I explained how the NFIP evaluates flood risk across 30 risk 

groups within a SFHA with group I being the highest elevation relative to Basic Flood Elevation 

and group 30 being lowest (and, consequently most exposed to damage from a flood event). The 

20 
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Birny Birnbaum Testimony before the House Financial Services Committee 

How to Create a More Robust and Private Flood Insurance Market Place" 

January 13,2015 

NFIP does not charge difierent rates for each of the 30 groups, but averages the expected claim 

costs across all groups in the SFHA. The surplus lines insurers will cherry-pick the policies in 

the risk groups below the overall average, leaving the NFIP with the policies in the aboveaverage risk groups. While the surplus lines insurers take the profitable, lower-risk policies, the 

NFIP will become even more financially vulnerable as its premium revenue will decline more 

than its risk exposure. While the states have an interest in affordable insurance for residents, the 

states don't have an interest in ensuring sufficient revenue for the NF!P. 

In addition to creating larger problems for the NFIP in the future, the legislation sets the 

table for more problems for consumers who purchase the surplus lines policies when an event 

occurs. As discussed above, states do not regulate surplus lines policy forms, which means that a 

surplus lines policy can contain exclusions that a regulator would never approve in a policy filed 

by an admitted carrier. A surplus lines policy might contain claim settlement provisions an 

admitted carrier could not include in its policy form. And surplus lines insurers' rates are not 

subject to any regulatory oversight. Consumers will not be aware of these differences and 

limitations- particularly since the legislation removes the consumer disclosures currently 

required - until a flood event occurs and the consumers face unexpected claims denials or 

hurdles or, far worse, the surplus lines insurer is financially impaired, unable to pay claims and 

three is no guaranty fund protection for the policyholder. 

Market forces will not cause surplus lines insurers to charge cost-based rates; rather, the 

surplus lines insurers will charge rates that just beat those of the NFIP even if the cost-based 

surplus lines rates should be much less. Insurance markets are generally not competitiveconsumers rarely have the information and market power to discipline insurers on coverage or 

prices and rely on state insurance regulators to ensure policy forms (which spell out coverage 

and claim settlement procedures) are not unfair, deceptive or misleading and to ensure rating 

practices are fair and not unfairly discriminatory. Flood insurance markets, in particular, arc not 

competitive, so unleashing unregulated insurers on vulnerable consumers is a recipe for disaster. 

Thank you for the opportunity to testify today. 

21 
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Statement of Steven Bradshaw 

Executive Vice President 

Standard Mortgage 

On behalf of the Mortgage Bankers Association 

How to Create a More Robust and Private Flood 

Insurance Marketplace 

House Committee on Financial Services 

Subcommittee on Housing and Insurance 

January 13, 2016 
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99799.023

Good Morning, Chairman Leutkemeyer, Ranking Member Cleaver, and members of the 

subcommittee. I am Steven Bradshaw, Executive Vice President of Standard Mortgage, 

and I am appearing today on behalf of the Mortgage Bankers Association 1. Thank you 

for inviting me to testify about the topic of how to create a more robust and private flood 

insurance marketplace. 

Standard Mortgage Corporation was founded in 1925 in New Orleans and currently 

services approximately 28,000 loans primarily in the Southeast including Louisiana, 

Mississippi, Missouri, Florida, Arkansas, and Alabama. We are the largest locally-owned 

residential mortgage originator and servicer in Louisiana. 

This past August marked the 101

h anniversary of Hurricane Katrina- the most significant 

flood event in U.S. history. Standard Mortgage experienced the massive devastation 

first-hand. Over 3,500 of our servicing customers sustained significant or catastrophic 

flood damage to their homes. Another 10,000 received various levels of wind damage 

and minor flooding. On a more person note, two-thirds of our staff lost their homes. In 

the face of this adversity, many of our staff rallied in our Baton Rouge office building to 

work with our customers whose lives had been upended by the storm. Two months 

later, a category 3 hurricane- Rita - struck. Between August 29 and October 24, 2005, 

Hurricanes Katrina, Rita, and Wilma caused massive devastation and flooding in the 

Gulf Coast region, damaging more than one million housing units across five states. 

Our professional and personal experiences have made clear that there is no doubt the 

National Flood Insurance Program (NFIP) has served- and will continue to serve in the 

foreseeable future- a critical need in helping homeowners protect what for many is 

their most valuable asset. The NFIP was an integral component of the Gulf Coast's 

recovery just as it has been for communities across the country that have struggled to 

rebuild after major flooding events. 

But there is also no doubt the NFIP now $23 billion in debt- must be reformed. The 

program as currently structured is simply not sustainable. The federal government 

cannot and should not bear the full burden of post-disaster recovery and rebuilding. As 

Congress recognized when it passed the Biggert-Waters Flood Insurance Reform Act of 

1 The Mortgage Bankers Association (MBA) is the national association representing the real estate finance industry, 

an industry that employs more than 280,000 people in virtually every community in the country. Headquartered in 

Washington, D.C., the association works to ensure the continued strength of the nation's residential and 

commercial real estate markets; to expand homeownership and extend access to affordable housing to all 

Americans. MBA promotes fair and ethical lending practices and fosters professional excellence among real estate 

finance employees through a wide range of educational programs and a variety of publications. Its membership of 

over 2,200 companies includes all elements of real estate finance: mortgage companies, mortgage brokers, 

commercial banks, thrifts, REITs, Wall Street conduits, life insurance companies and others in the mortgage lending 

field. For additional information, visit MBA's Web site: www.mortgagebankers.org. 
65 


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2012 (BW-12), in order to ensure a stable, affordable, and sustainable flood insurance 

market, a private market for flood insurance must be allowed and encouraged to 

develop. Increasing private sector involvement also could benefit consumers and other 

property owners by expanding available insurance options, lowering costs, and 

increasing the number of at-risk properties that are insured. 

For instance, many homes that were destroyed by Hurricane Katrina were not located in 

Special Flood Hazard Zones and therefore were not required to have flood insurance. 

Sadly, these borrowers were often uninsured and the cost of rebuilding fell either on the 

borrower or, for loans insured by the Federal Housing Administration (FHA), the 

mortgage servicer if the borrower was unable to repair the home and walked away. A 

private flood insurance market could offer assistance or varied options to these 

borrowers. 

It is also worth noting that 25 percent of Standard Mortgage's borrowers get their loans 

through the FHA. FHA borrowers are often first-time home buyers or borrowers with 

lower incomes or fewer resources to make a down payment. These borrowers are least 

likely to be able to afford expensive flood insurance premiums or have resources to fall 

back on in the event of a flood emergency. Currently FHA requires lenders to secure 

flood insurance on property only if they are located within a high-risk zone. FHA also 

requires that a servicer must put a property in "conveyable condition" in order to receive 

insurance benefit, and this includes repairing flood damage. This means we insure FHA 

against losses when a property floods that is not in a Special Flood Hazard Zones and 

does not have flood coverage. 

The intersection of these requirements can make it difficult or more risky for a lender to 

do FHA loans in states with significant flood risk or where flood maps may not 

accurately reflect the current flood risks. These low- and middle-income Americans are 

thus among those that would benefit most from an expanded marketplace of flood 

insurances offerings. It can also be expected that expanding coverage options and 

lowering rates will improve take-up rates for voluntary coverage among other 

populations. 

Increased private sector involvement will also serve to shift some of the burden of postdisaster recovery and rebuilding from taxpayers to the private sector, thereby limiting 

the federal government's exposure to flood loss. 

Though I am aware there are a number of individual House proposals that have been 

introduced this Congress that would make specific programmatic reforms to the NFIP, I 

will focus my comments this morning on MBA's support for H.R. 2901, the Flood 

Insurance Market Parity and Modernization Act. As introduced, the bill would: 
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I. Clarify what constitutes private flood insurance 

Congress can continue to facilitate the development of a private market by resolving 

legislative and regulatory issues that impede the congressional consensus to encourage 

the development of a private market. By making it easier for lenders to accept private 

policies in satisfaction of the mandatory purchase requirement, BW-12 was a significant 

step in the right direction. However, while the intent was for private flood insurance 

policies to satisfy the mandatory purchase requirement, the statutory language actually 

made it more difficult for lenders to accept private policies by requiring private policy 

coverage to be "at least as broad" as NFIP coverage. 

Prior to the enactment of BW-12, lenders for both residential units, as well as 

commercial and multifamily properties, were permitted to accept private flood insurance 

to meet the mandatory purchase requirement of the National Flood Insurance Reform 

Act of 1994. The Federal Emergency Management Agency (FEMA) published guidance 

with criteria to assist lenders in deciding whether to accept a private flood insurance 

policy, though lenders retained the discretion to accept a policy that did not meet the 

FEMA criteria if they were satisfied that the policy adequately covered the collateral. 

BW-12 incorporated the FEMA criteria into the definition of private flood insurance and 

required that private policies be "at least as broad as" an NFIP policy in order for a 

lender to accept it. 

While lenders routinely set requirements for various insurance coverages, they do not 

have the expertise to determine whether a particular private policy selected by a 

borrower would provide coverage "at least as broad" as NFIP coverage. In addition, the 

lender typically only receives the declaration page or certificate of insurance at closing -

neither of which would provide the level of detail necessary to determine whether 

coverage is "at least as broad as" coverage provided under the NFIP. With the risk of 

civil money penalties of $2,000 per violation, lenders are understandably hesitant to 

accept private flood policies. H.R. 2901 will clarify the statutory language to provide a 

clear definition of private flood insurance, which will make it easier for lenders to accept 

private policies. 

II. Clarify continuity of coverage requirements 

Second, we must make it easier for consumers and property owners to purchase the 

best policy for their particular needs for the best price. Under current law, it is not clear 

whether someone who was previously covered under an NFIP policy but moves to a 

private carrier would be able to later move back to an NFIP policy at their previous rate. 

This creates a disincentive for consumers to choose a private policy. H.R. 2901 will 

address this by clarifying that continuous coverage by private flood insurance meets the 

continuous coverage requirement under the NFIP rules. This clarification will both 

encourage the development of private market and allow borrowers that choose private 

coverage the option to return to the NFIP if they wish. 
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In conclusion, nationwide availability of affordable flood insurance is important to 

expanding homeownership, protecting borrower equity, limiting investor exposure, and 

building communities. MBA supports efforts by Congress and the Obama Administration 

to ensure both the continued strength of the NFIP as well as the development of a 

private market for flood insurance. 

H.R. 2901 effectuates congressional intent to encourage the growth of a competitive 

and sustainable private flood insurance market. Over time, increased private sector 

involvement will expand available insurance options and lower costs to consumers, as 

well as reduce the federal government's exposure to flood loss. 
68 


99799.027

National Association of 

Professional Surplus lines 

Offices, Ltd. 

Testimony of Brady Kelley 

Executive Director, National Association of Professional Surplus lines Offices 

Before the 

Subcommittee on Housing and Insurance 

Committee on Financial Services 

United States House of Representatives 11How to Create a More Robust and Private Flood Insurance Marketplace" 

January 13, 2016 

I. Introduction 

Good morning, Chairman Luetkemeyer, Ranking Member Cleaver, members of the 

Subcommittee. My name is Brady Kelley and I am the Executive Director of the National 

Association of Professional Surplus Lines Offices (NAPSLO). Thank you for inviting me here today 

to testify on H.R. 2901, the Flood Insurance Market Parity and Modernization Act, an issue that 

is critically important to our Association. 

II. About NAPSLO 

NAPSLO is the professional trade association representing the surplus lines industry and the 

wholesale insurance distribution system. Comprised of approximately 400 wholesale broker 

member firms, 100 surplus lines insurance companies, and 200 associates and services providers 

to the surplus lines market, our membership operates in over 1,500 offices representing tens of 

thousands of individual brokers, insurance company professionals, underwriters and other 

insurance professionals worldwide - all of whom are committed to the wholesale value 

distribution system and U.S. surplus lines market. NAPSLO wholesale broker members are placing 

an estimated $32.7 billion in surplus premium and NAPSLO insurance company members are 

underwriting an estimated $29.7 billion in surplus lines premium, representing 87% and 79%, 

respectively, of the U.S. surplus lines market. 

Since its incorporation in 1975, NAPSLO has become the authoritative voice of the surplus lines 

industry, advocating for the industry's vital role in the insurance marketplace and in providing 

innovative solutions for complex insurance risks. 
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Ill. About the Surplus Lines Market 

The surplus lines market, also known as the nonadmitted market or E&S market, plays an 

important role in providing insurance for nonstandard and complex risks. Often called the "safety 

valve" of the insurance industry, surplus lines insurers fill the need for coverage in the 

marketplace by providing capacity to catastrophe-prone risks and coverage for risks that are 

declined by the standard underwriting and rating processes of standard/admitted insurance 

carriers. 

Surplus lines insurance is used to cover risks that are difficult to place because they exceed what 

the standard market is either capable of or willing to underwrite. A few examples include coastal 

properties exposed to catastrophic storms, emerging technologies, small business start-ups, and 

risks with poor credit or located in high crime areas, among a large range of risks where the 

standard market is unable to provide the level of coverage a consumer needs. Both surplus lines 

insurers and brokers are specialists who create innovative solutions and deliver customized and 

cost-effective solutions to meet the insurance consumer's specific needs. It is important to note 

that, in most cases, the surplus lines market can only be accessed in the event that the standard 

market is unable or unwilling to place the risk. 

With the ability to accommodate a wide variety of risks, the surplus lines market acts as an 

effective supplement to the standard market, giving consumers insurance options for 

nonstandard and/or complex risks, as highlighted in catastrophe-prone areas of the country. 

States such as California, Florida, Louisiana, New Jersey, New York, Pennsylvania and Texas are 

good examples of how the surplus lines industry has acted as an effective market in responding 

to catastrophic events, where consumers may otherwise have been left without coverage for 

their commercial risks and/or personal assets. 

All states with a history of dealing with catastrophic storms have been impacted by the normal, 

downward shift in the standard market's appetite for providing coverage in the wake of 

catastrophic losses. The surplus lines industry has been able to serve as an effective supplement 

in such cases, offering consumers options that may no longer exist in the standard market. Such 

events result in an ebb and flow of business and risk appetite between the standard and surplus 

lines markets - a market cycle that has demonstrated to be quite effective for decades and 

illustrates the supply and demand for insurance products. 

Exhibit I illustrates this market cycle by measuring the rates at which U.S. surplus lines direct 

written premium has shifted upward or downward in relation to the U.S. property casualty 

industry direct written premium. Catastrophic events such as Hurricane Andrew in August 1992, 

the Northridge Earthquake in January 1994, the September 11, 2001 terrorist attacks, Hurricanes 

Katrina in August 2005, Rita in September 2005, Wilma in October 2005, Ike in September 2008, 

Irene in August 2011 and Superstorm Sandy in October 2012 are followed by growth in surplus 

lines premium, which exceeds the rate of growth in the overall property/casualty market. The 

reverse is true in other years with lower catastrophic activity. 

2 
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Exhibit I 

70.0% ~------------------------------------------------------------------

_._U.S. Property/Casualty Industry DWP ~•·u.s. Surplus Lines DWP 

60.0% +----------------------··----------~~------·--·----·--------·--·----·-----

50.0% +-------------------------------~i~c-------·------------------------

-10.0% -'-------------------------------------------------------------

A. Types of Risks Typically Written in the Surplus Lines Market 

While the surplus lines market is not the primary market for most insurance coverages, it is a 

critical market as supply and demand for insurance ebbs and flows. As an example, the first 

admitted homeowner's policy was filed and approved in 1950, having fire, theft and liability 

coverages combined into a single policy. Today, consumers expect to see these combined 

coverages in all standard policies. The surplus lines market allows this type of innovation to occur 

much more quickly and efficiently. 

The surplus lines industry generally serves as the innovator for new and emerging risks and 

related insurance products, such as vacant properties, nursing homes, builder's risk and older 

high-value homes. For example, a new business venture with a new innovative product may not 

be able to find insurance in the standard market, because of the lack of experience, loss history 

and approved underwriting processes or rates for emerging risks. Other examples of coverage 

innovations in surplus lines that now have evolved to the standard market include employment 

practices liability, directors and officer's liability, medical malpractice and cyber risk, among 

many others. 

A strength of the surplus lines industry is its ability and flexibility to customize coverage for new 

and emerging risks. Surplus lines insurers do this by focusing on underwriting for the specific risk 

to be insured. In order to ensure new or unique risks are underwritten appropriately, surplus 

lines insurers are highly specialized and conduct specific research to understand the underlying 

exposure. As loss histories develop on these product lines, the standard market will leverage the 

data and experience from the surplus lines market to develop more standardized products, rates 

and forms that offer similar solutions. 

3 
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Conversely, when the standard market experiences significant or catastrophic losses in certain 

product lines or regions (e.g., catastrophic storms in coastal states}, their underwriting practices 

and risk appetites become more conservative resulting in a shift of these risks back to the surplus 

lines market. The states have a successful record of dealing with catastrophic storms that have 

impacted the willingness of standard insurers to provide coverage and limits in the availability of 

private insurance for their constituents. The surplus lines industry has been able to serve as an 

effective supplement in such cases, offering consumers options that no longer exist in their 

standard market. In this regard, the relationship between the standard and surplus lines markets 

are symbiotic. 

IV. The Issue: Need to Ensure Consumers Continue to Have Surplus lines as an Option in the 

Private Flood Insurance Market 

Surplus lines insurance provides an important option for consumers seeking coverage for unique 

or hard to place risks, including flood risks. As discussed below, NAPSLO supports HR 2901 as it 

seeks to preserve that consumer option. 

A. NFIP and the Private Flood Insurance Market 

In 1968, Congress established the National Flood Insurance Program (NFIP) to make up for a lack 

of available flood insurance from the private insurance market. While the program has certainly 

enabled property owners in participating communities to purchase insurance protection from 

the federal government, the NFIP has now borrowed $23 billion from the U.S. Treasury. With 

continued subsidies in the NFIP's rates, this debt is only anticipated to grow and the pace at 

which the private market, especially the standard market, is willing and able to develop 

competitive flood insurance programs for consumers will continue to be slow. Congress 

recognized these trends during the 2012 NFIP reauthorization and included provisions to 

encourage a more active participation by the private market. 

B. Current State of Surplus lines Flood Market 

Generally speaking, consumers whose risks do not fit within the terms and limits of the NFIP or 

whose risks are declined by the standard market will have brokers looking to the surplus lines 

market for solutions. Consumers will and do need alternatives to the NFIP1 when: (1) they need 

higher limits than the $250,000 residential, $100,000 personal contents and $500,000 

commercial limits offered by the NFIP; (2} they need enhanced coverage from that offered by 

the NFIP such as replacement cost of the damaged property rather than the actual cash value of 

the property, additional sublimits, additional structures, or the ability to schedule multiple 

properties on one policy; or (3} they need additional coverage beyond that offered by the NFIP 

such as additional living expense, basements, or business interruption for commercial entities. 

For 2014, six of the 14 states with surplus lines stamping offices have collected specific flood 

policy data (California, Florida, Mississippi, Nevada, New York and Texas}, including four of our 

1 Attachment A 

4 
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largest surplus lines states (California, Florida, New York and Texas). These six states reported 

$134.1 million in flood premium in 2014 compared to the $19.8 billion in total surplus lines 

premium written in these states- only .68% of their total surplus lines premium is for flood risks. 

These states are fairly representative of the entire U.S. market because they comprise more than 

49% of the $40.2 billion surplus lines market in 2014. So, if we extrapolate this proportion to the 

U.S. market, we would estimate roughly $273.6 million in surplus lines flood insurance premium 

nationwide. 

Of the $134.1 million in flood premium: 

$92.0 million or 69% covers commercial property 

• $32.9 million or 24% covers residential property 

$9.2 million or 7% is not specifically characterized as either commercial or residential 

property 

Further, when analyzing surplus lines premium in these six states from 2011 through 2014, we 

find premium ranged from $119.2 million in 2011 to the $134.1 million in 2014, with ups and 

downs within that period, but no dramatic or systemic trends other than the ebb and flow of 

business that we have been referencing here today. In fact, surplus lines flood insurance 

premium in these six states totaled $450.4 million from 2011 to 2014, or .64% of their total 

surplus lines premium (i.e., consistent with the .68% in 2014). 

Although flood insurance represents a relatively small proportion of the surplus lines market, it 

represents a market for consumers that would otherwise have no solution. 

NAPSlO believes the private market will develop, but slowly. For consumers whose flood risks 

are mitigated by the terms and limits available from the NFIP, there will be no real change or shift 

of NFIP coverages to the private market. As long as the NFIP continues to subsidize rates and 

delay the implementation of more actuarially sound rates commensurate with underlying 

exposures, there is no incentive for consumers to seek private market solutions and no incentive 

for the private market to develop solutions that cannot compete. 

For consumers who seek private market alternatives to the NFIP, the standard/admitted market 

will serve as the primary solution for risks that fit within the standard pricing and underwriting 

criteria of standard/admitted insurance carriers. Again, we believe it will take time for the 

standard market to develop the experience and data to support standard pricing and 

underwriting criteria. We believe the standard market's understanding of and comfort with flood 

exposures will develop from the surplus lines market's experience. Currently, our understanding 

is that most standard market offerings are additions to existing property policies rather than new 

standalone flood insurance programs. This is primarily because the rates needed to compete 

with the NFIP do not support standalone programs. 

Consumers whose risks do not fit within the terms and limits of the NFIP or whose risks are 

declined by the standard market will have brokers looking to the surplus lines market for 

solutions. Without it, consumers who need it will have no alternative. 

5 
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As a result, NAPSlO does not anticipate any significant change or expansion in the surplus lines 

market, except to the extent the demand for flood insurance exceeds that available from the 

NFIP or standard market (e.g., in the event NFIP or standard market options deteriorate). 

C. Support of the Flood Insurance Market Parity and Modernization Act 

NAPSlO strongly supports H.R. 2901, the Flood Insurance Market Parity and Modernization Act, 

as introduced by Representatives Ross and Murphy, because it amends the definition of private 

flood insurance to clarify that surplus lines insurers are eligible to offer private market solutions 

and alternatives to consumers with unique and complex flood risks. 

Although surplus lines insurance companies are currently allowed to provide private flood 

insurance, the definition of private flood insurance implemented during the 2012 revisions to 

provisions in 42 U.S.C.A. §4012a created uncertainty for lenders and consumers. Specifically, 

lenders became uncertain about accepting surplus lines insurance policies in light of the law's 

requirements and because it authorized federal banking and housing regulators and the 

government-sponsored enterprises (GSEs) to develop their own requirements related to the 

financial strength and claims-paying ability of private insurance companies writing private flood 

insurance. No regulations have been developed by the banking and housing regulators or GSEs, 

which is prolonging this uncertainty. As a result, lenders have rejected perfectly valid, wellunderwritten insurance policies because they were afraid to accept the policy under current law. 

This is a problem. For example, a borrower needs a flood policy to cover residential rental 

property, including lost rental income. The current NFIP policy does not provide enough coverage 

per property. The NFIP also requires individual policies to be written and does not provide lost 

rental income coverage. While this coverage can be made available in the surplus lines market, 

lenders have been reluctant to accept such a policy in light of the existing definition of private 

flood insurance in federal law. The lender, borrower and broker are each forced to make a choice 

-take one surplus line policy and fully protect the property, or take several NFIP policies that do 

not fully satisfy the borrower's coverage needs. 

H.R. 2901 will amend the definition of private flood insurance to provide lenders with the 

certainty they need to accept surplus lines flood insurance policies and will ensure consumers 

have access to the options they need from the surplus lines market. It is important to remember 

that surplus lines flood insurance policies were written for insureds unable to secure flood 

insurance from the NFIP or standard market prior to the 2012 revisions. H.R. 2901 simply 

preserves the surplus lines market's ability to solve unique and complex flood insurance risks 

that exceed or differ from the options available through the NFIP or the standard market. 

NAPSlO's support for this legislation stems from our desire to preserve that choice for 

consumers. 

In addition, NAPSLO strongly believes that the authority to regulate insurance companies and 

insurance markets should remain under the purview of state insurance regulators because of 

their experience and strong track record of successful regulation in the U.S. We share the NAIC's 

concern that banking and housing regulators do not have the experience or expertise to regulate 

insurance companies or insurance markets. We would also be concerned with the duplicative 

6 
74 


99799.033

and likely inconsistent regulatory requirements for insurers that we too are concerned would 

result. 

V. Background on Surplus Lines Insurance 

A. State Regulation of the Surplus lines Market 

There are key similarities in state regulation of the surplus lines and standard markets. First, each 

U.S. based surplus lines insurance company is licensed in at least one of the SO states or other 

U.S. jurisdictions and must maintain threshold capital and surplus levels. Surplus lines insurers 

domiciled outside of the U.S. may be included on the NAIC Quarterly Listing of Alien Insurers 

upon meeting capital and surplus requirements, agreeing to maintain U.S. trust accounts, and 

meeting certain character, trustworthiness and integrity requirements, a process overseen by 

state insurance regulators through the NAIC's International Insurers Department. Second, to 

obtain and maintain their licenses, both standard and surplus lines insurers are subject to all of 

the same rigorous rules and regulations and must comply with all financial solvency requirements 

and market conduct standards and regulations of its state or jurisdiction of domicile. 

There are also a couple of key differences. First, surplus lines insurers generally do not write 

surplus lines in their state of domicile; rather the surplus lines insurer's business is generally 

written in other states where the insurer operates on a surplus lines basis. Second, in a surplus 

lines transaction, both the surplus lines insurer and the broker are regulated. In accordance with 

the Nonadmitted and Reinsurance Reform Act of 2010, the insured's home state requires a 

surplus lines broker to be licensed in order to sell, solicit, or negotiate nonadmitted insurance 

with respect to such insured. Perhaps most importantly, in the typical surplus lines transaction, 

the surplus lines broker (often a wholesale broker with a high level of expertise in the underlying 

risk) works directly with the retail agent or and broker representing the insurance consumer who 

needs the nonstandard insurance solution. In this regard, and also distinct from the standard 

market, the licensed surplus lines broker is responsible for (1) placing the coverage with a 

financially strong, eligible surplus lines insurer; (2) reporting the surplus lines transaction to 

insurance regulators; {3) remitting the premium tax due on the transaction to state tax 

authorities; and (4) assuring compliance with all the requirements of the surplus lines regulations 

for that state. 

B. State Regulatory Controls 

As a supplemental market, generally speaking, the surplus lines market does not compete with 

the standard market; rather, the surplus lines market provides coverage options (e.g., 

supplemental coverages, higher limits, unique terms and conditions, etc.) when the standard 

market cannot or will not underwrite the level of flood coverage needed. State insurance 

regulators leverage two important tools to monitor and control the types of coverages that can 

be placed in the surplus lines market- diligent search requirements and export lists. 

First, most state statutes and/or regulations require insurance agents to demonstrate a diligent 

effort was made to place the risk with the standard market. These requirements are often 

referred to as diligent search requirements within state laws and regulations. In practice, 

7 
75 


99799.034

insurance agents will generally seek insurance quotes for flood risks from the NFIP and standard 

market carriers licensed to write such insurance. If the risk is declined by the NFIP or standard 

market (most states require declinations from three markets that write the type of coverage 

being solicited), insurance agents may seek coverage from the surplus lines market. 

Consequently, a residential property owner will not access flood insurance solutions directly from 

the surplus lines market. 

Second, regulators use "export lists" to regulate the flow of business between the standard and 

surplus lines markets. An export list outlines the types of insurance products and coverages the 

state allows to be exported to the surplus lines market without a diligent search of the standard 

market. They represent an effective tool for each individual state to monitor and regulate their 

own insurance markets. The fact that the export lists vary by state, (i.e., there is no national, 

multi-state export list) is evidence that not all products and coverages are available in all states 

on a standard basis and that insurance regulators have recognized the need for this option for 

their consumers. 

A number of states have either added primary flood insurance to their export list or are waiving 

diligent search requirements for flood coverage because of the need to develop private market 

solutions in their states. Excess flood insurance (e.g., flood coverage in excess of the primary 

limits of the NFIP) is even more prevalent across the country. In these cases, the surplus lines 

market can offer competitive options for consumers. Specifically, 18 states allow direct access to 

the surplus lines market for various levels of flood insurance. 11 states (Alaska, Arizona, 

Connecticut, Florida, Idaho, Louisiana, New Jersey, Oklahoma, Pennsylvania, Virginia and 

Wisconsin) have no restrictions on accessing the surplus lines market for flood insurance. 

California and West Virginia specifically allow access to the surplus lines market for excess 

coverage. Four states (Maryland, Michigan, New Mexico and New York) have made immediate 

access to the surplus lines market available where the insured's community does not participate 

in the NFIP, or when the coverage needed is in excess of the NFIP. Finally, Nevada allows direct 

access for flood coverage in the case of lender-placed insurance. Florida and Oklahoma have 

passed specific laws to allow direct access to primary and excess flood coverage from the surplus 

lines market. 

While H.R. 2901 is not intended to expand the surplus lines market share in private flood 

insurance, we recognize that those states adding flood to their export lists or waiving diligent 

search requirements are doing so to build private market solutions for their consumers. We 

strongly support the states in their monitoring and use of these tools to regulate the supply and 

demand of flood insurance coverage for their constituents. 

Given the strong state based insurance regulatory system, we can rely on state insurance 

regulators to use these tools to respond to the needs and protection of their consumers. H.R. 

2901 will preserve state insurance regulatory oversight and control over the types of coverages 

that can be placed in the surplus lines market. 

8 
76 


99799.035

C. Proven Financial Strength and Stability 

In 2014, the surplus lines market represented $40.2 billion in direct written premium, 

approximately 7% of the entire property and casualty market and near 14% of commercial lines 

premium. Surplus lines insurers have an exemplary solvency record when compared to the 

standard property/casualty industry. The most recent five and ten-year track record of the 

surplus lines industry exemplifies this disparity, as outlined in the annual A.M. Best report2• This 

report is issued annually and reviews the financial strength of the surplus lines market from the 

research and perspective of the rating agency. The most recent report highlights that for 

the eleventh year in a row, the surplus lines industry reported no financially impaired companies 

in 2014.1n contrast, the admitted property/casualty industry experienced 207 disclosed financial 

impairments over the same eleven-year period. 

As outlined in Exhibit II, the surplus lines marketplace is financially secure and dominated by 

companies with average ratings that exceed those of the overall property/casualty industry as 

follows. 

Exhibit II 

Best's Rating Distribution 

As of August 2015 

A++ 

A+ 

A 

A· 

B++ 

B+ 

Subtotal 

BC++ 

C+ 

c 

C· 

D 

Subtotal 

Totals 

Not Rated 

2 Attachment B 

Superior 

Superior 

Excellent 

Excellent 

Good 

Good 

Fair 

Fair 

Marginal 

Marginal 

Weak 

Weak 

Poor 

Under Regulatory Supervision 

In Liquidation 

Domestic Professional Surplus tines 

#of Companies Percentage 

8 8.79% 

21 23.08% 

43 47.25% 

18 19.78% 

1.10% 

0.00% 

91 100.00% 

0.00% 

0.00% 

0.00% 

0.00% 

0.00% 

0.00% 

0.00% 

0.00% 

0.00'/o 

0.00% 

91 100.00% 

4 

95 

9 

Total P/C Industry 

#of Companies Percentage 

24 2.75% 

81 9.28% 

290 33.22% 

285 32.6S% 

94 10.77% 

59 6.76% 

833 95.42% 

25 2.86% 

0.80% 

0.11% 

0.34% 

0.34% 

0.11% 

0.00% 

0.00% 

0.00% 

40 4.58% 

873 100.00% 

970 

1,843 
77 


99799.036

VI. Conclusion and Reiteration of Support 

Although surplus lines insurance companies are currently allowed to provide private flood 

insurance, the definition of private flood insurance should be revised to remove any uncertainty 

for lenders or consumers that, pursuant to state rules and regulations, surplus lines insurance 

companies continue to be eligible to offer private market solutions and alternatives to consumers 

in need of unique and complex flood risks. The Flood Insurance Market Parity and Modernization 

Act solves this problem. 

This legislation is intended to provide much needed private market alternative solutions to 

consumers' flood insurance needs, both commercial and residential. NAPSLO's primary goal in 

supporting H.R. 2901 is to preserve the surplus lines market's ability to offer alternatives for flood 

risks that exceed or differ from the options available through the NFIP or the standard market. 

Without it, consumer options will be restricted. NAPSLO encourages your support of this 

legislation and we urge Congress to take quick action to enact it. 

We appreciate Congressmen Ross and Murphy for their leadership in introducing H.R. 2901 and 

we thank them and the Subcommittee for its effort to encourage greater growth in the private 

flood insurance market. We encourage your support of the legislation as introduced, and we urge 

Congress to take quick action to enact it. 

Thank you again for the opportunity to be here today, and we look forward to working with you 

as H.R. 2901 moves forward. 

10 
78 


99799.037

Attachment A 

Consumer Options for Flood Insurance 

The current definition of private flood insurance causes uncertainty regarding the role that 

surplus lines insurance can continue to play in fulfilling a consumer's obligation to purchase flood insurance. 

H.R. 2901/S. 1679 was introduced in June 2015 to ensure consumers continue to have surplus lines options 

when securing flood insurance from the private market. 

ISSUE 

Consumer needs flood 

insurance. 

POTENTIAl 

ROADBlOCK 

!n some cases the standard market 

coverage in excess 

limits and perils dictated 

by the NFIP. 

risk, consumers 

of using NF!P if the 

(e.g., $250,000 for a family home) 

hasn't already been reached. 

But, some consumers wll! be left with no further 

insurance options, leaving them without sufficient 

coverage. This means some consumers won't be 

able to purchase a home and businesses won't be 

able to secure commercial !.pace, as !enders require 

adequate insurance coverage based on the 

property's va!ue. 

11 

NFIP 

OPTION 

Consumer 

may purchase 

flood insurance 

through the NATIONAL FLOOD NFIP but limits INSURANCE PROGRAM 

are $250,000 for residential and $500,000 

for c:ommerclal property and are further limited 

to specific perils. 

STANDARD 

MARKET OPTION Consumer may choose 

to obtain private flood 

insurance from the 

standard market. 

SURPlUS liNES 

SOlUTION ----.. with H.R. 2901/S. 1679 The surplus lines market ls 

preserved as a market and can 

offer options and solutions to 

consumers that exceed the 

limits and covered perils of the NFIP or 

those the standard market is wi!!ing to offer. 
79 


99799.038

U.S. Surplus Lines Attachment B 

Record Levels Reached 
80 


99799.039

Segment Review 

August 27, 2015 

Product 

diversification, 

underwriting 

discipline 

and market 

conditions drive 

profitable 2014 

surplus lines 

results. 

Exhibit D 

SPECIAL REPORT--------____::::U.~S-~Su~rp:::_:lu:::_s L::::in=es 

Our Insight, Your Advantage. 

Surplus Lines Profit from Underwriting 

Discipline and Core Competencies 

Underwriters of surplus lines continued to report profitable results in 2014 including profits 

from favorable reserve development. Results were driven by a combination of product 

diversification, underwriting discipline, and advantageous market conditions. As a result, 

surplus lines companies continue to outperform the overall property/casualty industry 

and recorded a second straight year of underwriting profitability following three years of 

underwriting losses. 

A. M. Best's outlook on the surplus lines insurance market remains stable. In addition, the 

overall macroeconomic environment has been conducive to increased merger and acquisition 

(M&A) activity. We have seen over the past five years that surplus lines, as well as specialty 

admitted carriers, have been the target of M&A. Targeted companies provide acquirers an 

opportunity either to establish a new surplus lines platform, or to supplement an existing one. 

Surplus lines insurers also have kept pace with Enterprise Risk Management tools and 

processes due to increased oversight by regulators and rating agencies. Management at these 

firms have taken a closer look at their operations from an enterprise standpoint and have 

either better formalized existing programs or made the necessary adjustments to be more in· 

line with peers. 

The persistent low interest rate environment continues and investment portfolio returns 

suffer as carriers struggle to replace maturing, and higher yielding, securities with suitable 

replacements without adding to credit and liquidity risk 

In January 2015, NARAB II was signed into law by President Obama as part of the Terrorism 

Risk Insurance Program Reauthorization Act of 2015. The market view is that NARAB II will 

make it easier for agents and brokers to conduct business and make the licensing process more 

streamlined. Productivity is expected to improve and the cost of business and compliance to 

decrease. 

One of the hallmarks of the surplus lines insurance market is the development of new 

insurance solutions to address new or emerging risks, or to provide improved coverage for 

known risks. The core compctencles of the successful surplus lines carriers remain the same, 

focused on effective strategic analysis, product diversification and underwriting discipline. 

These companies typically concentrate more on bottom¥1ine profits than top~line organic 

growth, utilizing the segment's freedom of rate and form, while providing coverage for the 

varied, nonstandard risks that they underwrite. This focus gives these insurers the best 

chance to withstand adverse market circumstances and succeed over the long term. 

Contents 

L State ot tne Market.. .... ~ ..... , . ,. .... 3 

n: financJaf Condition and Rating Distribution, •••... 14 

IlL 

IV. Cufrei>ll)isllibutfur 

v. '"'"''"'~"'"~"' VI. Fum!amentals ol Appendices. . ...•. Ml 

Copyright© 2015 by A.M. Best Company. Inc. ALL RIGHTS RESERVED. No part of this report or document may be distributed 

in any electronic form or by any means, or stored in a database or retrieval system, without the prior written permission of the A.M. Best 

Company. For additional details, refer to our Terms of Use available at the A.M. Best Company website: www.ambest.com/terms. 
81 


99799.040

Special Report U.S. Surplus Lines 

A.M. Best 

More than two de<~ades ago, A.M. Hcst pubHshed Best's lllso!vem:y Study: Property/G{lsualty !usurers 1969~1990, 

in an effbrt to inform thcn~.active debates over insurers' solvency. Sparked by interest in this topic, the Derek 

Hughes/NAPStO Educationall,'ounda.ti:on commissioned a similar study in 199·4, on the solvency record ofthe 

domestic surplus lines industry The segment was poorly understood by many at the time, but the data showed that, 

conventional wisdom aside, the surplus lint'S 

overall property/casualty (P /C) industry. 

financial :;;tahility and solvency were at least on pat \Vith the 

the ensuing years, A.M. Best has published ammaUy a special n:port on the surpJus lines markct,,commissioned 

by the Foundation that has documented: 

• The market's role in covering new or emerging risks, distressed risks, high-capacity risks, and unique risks that 

cannot be insured in the standard P/C market. 

• The jmportance of surplus fines insurers' freedom of rate and form, which has aHowcd. fOr creative insurance 

solutions to meet specific or unique coverage needs. 

• The role of surplus lines distributors, including wholesalers ~md managing general agents (MGAs), which have 

played a critical and still growing part in dt\"doping products anti forging relationships with insureds th<lt facilitate 

the placement of business in this market. 

Tluoughout its history, the surplus Jines market has faced signifh..'atlt obstacles and intense C{)tnpctition. This indudes 

aggressive pricing and liberal coverage from standard market ca:rrJcrs seeking organic grovvt11, and the alternative risk 

transfer market's app<:al as another means of covering potential surplus lines risk. Meanwhile, surplus lines industry 

tepresentatives have been acthte in \Xtashington O.C and in~ividual states on critical regulatory issues affecting the 

industry, advancing key pk<..."'CS of legislation. Among these were the National Association of Registered Agents and 

Brokers (NARAll) provision of the 1999 Gramm·I..cach-Hliky Ac:t, which led to nonresillcnt surplus lines agent and 

broker licenses :and a new landscape in wholesale and MGA distribution. 'More recent actjons include passage of the 

Nonadmitted and Reinsurance Reform Act in of NARAB n, along with the Terrorism Risk Insurance 

Program Reauthorization Act of 2015 and the introduction ft'deral Flood legislation (see .section IH of this 

report} 

Despite the challenges, the smvtus 

(DPW) in 1994 to approximately 

insun:rs grew from a 6.1% ~hare to 

within the overall P/C indu:-try. 

market more than dot1bted from of !otal P/C direct pr<·miums written 

by the end of 20H. As a percentage of comrncrciallincs DP'W', surplus lines 

hence further demonstrating the undeniable importance of the sector 

Surplus lines companies in 199·1 ht-·ld a higher median A.M. Bt:st financial strength rating (FSR) than the total P/C 

industry; of surplus Uncs companies had secun.· ratings (defined as an A.M. Best rating from fH 

compan~d to 742?..f,10r the indusny Through mid·yeat· 20lS, HIO% of surplus lines companies maint:tincd st:·cnre 

:ratings versus the P/C industry. lines insurers have A,M, Best ratings 

of A- or higher, compared with 78'?..;\ for the total P/C industry furthet· corroborating the health of the surplus lines 

sector today. 

The surplus lines market dearly is ~t safety valve for the insurance industry, especially in hard markets. As emerging 

issues and exposures drive more demand 

surph1s Jines market wm continue to galn 

comprehens1ve insurance solutions, A.M, Best believes the 
82 


99799.041

Special Report U.S. Surplus Lines 

Exhibit 1 

Section I - State of the Market 

Continuing the momentum established in 2012 and 2013, the surplus lines sector ended the 2014 

year in strong form. Leading the parade for this sector was nearly $1 billion of net underwriting 

profit which included over $525 million of net accident year underwriting profit, plus $376 million 

of additional profits taken from prior years in the form of favorable reserve development. 

During the year, price momentum continued as direct premiums in this sector grew 6.7% (see 

Exhibit 1) despite competitive pressures domestically and abroad, robust balance sheets in 

need of putting capital to work, as well as new entrants. There is no doubt that insurers and 

underwriters have resigned themselves to the reality of today's low interest rate environment 

and the fact that we are likely to remain in this malaise for some time. 

U.S. Surplus Lines- Direct Premiums Written (DPW) by Segment (1988-2014) 

(USO millions) 

Total PIC TolaiSmt>luS - RE61iiAren AIJENS 

·- lines OOMESIICI'IlllfESSIOIIAl.S l.l.IMl'S (""""'dlngl.klyd's) ll!ll\lESIICSPfCIAIJY 

Year 

1989 

1968 211,270 

220,620 - 1900 230,757 

1991 235,627 

1992 240,410 

1993 2531)47 

1994 253.653 

1995 273,929 

19!16 279,990 

1997 287,196 

1998 300,300 

1999 308,671 

2000 327,286 

2001 367,798 

2002 422,703 

2003 453,033 

2004 481,588 

2005 491,429 

2006 503,894 

2007 .506,100 

2006 492,881 

2009 481,410 

2010 481,120 

2Jl11 501,55$ 

2Jl12 523.300 

2013 545,760 

2Jl14 570,187 

No. 

...... of Annual 

Share Cos. lll'l'l %Ch 

11i1% '"' 32lJ 2.2% 

4.4% -2.5% -47% 88 1,182 "4A% 19.3% 17.1% 101 361 10.1% 

4.6% 6.7'% 10.0']4, 59.4% 117 1,241 5.0% 19.a% "3.5o/Q 15.5% 85 396 9.7% 

2.1% 6.0% 4,001 ~1% 5!!.9% 117 !,322 6.5% 19.1% 9.7o/~ 1$.0",& 85 410 3.5% 

2.0% 7.549 RO% 4,491 10.(}%. 59.5% 12Jl 1,388 SJl"!O 18.4% 9.8% 162% 9.8% 

5.0% 8,54D 13.1% 5,270 17.3% 61.7o/n 123 1,631 17.5% 19.1% ·3.0% t3.9o/..t 1.3% 

3.9% 8,7ll6 2.9"k 5.009 1$.5% 115 1,196 -26.7% 13.6o/~ -16J% 11.3% 11.6% 

39% 9249 52% 6,511 6.9% 112 1,300 a7% 14.1% 1.022 3.1Y"k 

2.2% 9.205 {L4% 6,!i!lll 2.4% 72.4% 100 1,354 4.2% 14.7'% 818 ~20.0% 

2.6o/\). 9,419 2.3% 6.569 ~t5% 69.7% 100: 1,609 18.8o/~ 17.1% 802 -2.0"k 

4.6o/~ 9,861 4:7% 6,763 3.9% 886% 107 1,574 ·2.2'Yo 16-0% 1;f96 49.1% 

2.8% 10,615 7.6"4. 7.265 7.4% 68.4% !05 1~12 21.5% taO% -47% -9.1% 

6.0% 11,656 9.8% 7.Bil4 8.5% 67.6% 98 2,499 11.4% 

12.4% 15,813 35.7% 36.6% 68.1% 104 3,368 34.8% .fi.tr'k 

14.9% 25.565 61.7% 8t'l"k 76.6% 108 21.204. 0.3o/~ 

9.5% 32,799 28.:flk 25,062 31.1% lE.2% 115 1(UJ% 

4.0o/D 33,012 0.1¥'.{, 25,744 0.3% lE.tr!'o 115 4,596 2.3o/a 

2.0% 33,301 OJ!'% 25.968 0.9% 760% '111 4,675 !.7% 

2..5% 36.698 16.3% 29,410 13.3% 76.0% 117 5,989 28..1% 

0$% 36.637 -3.5% 27,675 ·5.9% 74.1% 120 6,360 6.2'¥ .. 

-2.6% 34.365 -6.2o/o 24,612 -11.1% 71.fi%- 130 6,002: -4.7% 

·2.3% 32,952 -4.1% 22,830 -7.?f, 69.3% 139: 6,090 0.5% 3.1% 

..0.1% 31,716 -3.8% 21,882 -4.2% 6&0% 143 5,789 4.91X> -3.4% 

4.2% 31,140 -1.8% 22.582 3.2% 72..5% 146 5,790 OJ.l'% "19.5% 

4.3% 34,608 i1.8o/o 25,400 12.9% 73.2% 142 6,270 63% 

4.3'Y~ 37,719 8.4% 26,818 5.2% 71.1% 140 7,099 13.2% 

4.5% 40,234 6.7'% 28,274 5.4% 7RS% 135 8,.!£_1~.9'% ~% 

In general, the market position of surplus lines insurers continues to be described in favorable 

terms such as prof1table, stable, well-capitalized and consistent performers. These attributes 

are the result of effective strategic analysis, product diversification, underwriting discipline, 

advantageous market conditions, and an environment conducive to opportunistic mergers and 

acquisitions. With a business profile that industry members traditionally refer to as "countercyclical", these carriers are extending their trends of favorable overall profitable results, 

Though some carriers have encountered difficulties, in general the surplus lines carriers 

remain strong performers and in control of their circumstances. 

Su'Jllus 

Unes 

Marite! 

Share 

52% 

5.9% 

6.1% 

5.9'% 

6.0% 

5.3% 

5.8% 

4.5% 

4.0% 

4.7% 

3.3% 

2.8% 

2.8o/o 

2JJ"'(, 

1.2o/o 

0.7% 

0.8% 

0.7% 

0,5% 

0.5% 

0.8"/a 

0.9% 

0.9% 

0.7% 

0.9% 

No. 

Cos. "' 

128 

123 

149 

15! 

151 

138 

141 

144 

125 

114 

113 

116 

106 

91 

7S 

63 

59 

fil 

54 

56 

70 

69 

66 

60 

53 

49 

58 
83 


99799.042

U.S. Surplus Lines 

In our 2015 review of the state of the surplus lines market, A.M. Bt·st will discuss many points, 

including: 

Market share of the Jeading members of this line of business 

Factors contributing to financial performance 

Merger and acquisition activity impacting these carriers 

• A.M. Best's views on the near-term market cycle. 

One advantage to surplus lines insurers is their ability to obtain new business declined 

by standard carriers at a price deemed supportive of the risk profile. The results for these 

companies are growth in premium levels, improvement in cash flow, and expansion of the 

invested asset base. TI1ese factors and others led to the surplus lines market recording a second 

straight year of underwriting profitahility following three years of net underwriting Josses. It is worth 

noting that there were no large scale weather events in either 2013 or 2014. A complete review of the 

aggregate financial results is provided in Section H of this report. 

Over the past five years, surplus lines as well as specialty admitted in.~urcrs have been the target of 

mergers and acquisitions (M&A). This is also true of existing insurers who have fum1ed new surpb.L..;; 

linL'S platforms and those that decide to build out their existing platfOrms. In most cases, M&A activity 

features strong performing compani"-"S targeting other strong pcrfonnL-rs. This is highlighted by the 

June 10, 2015 announcement oflbkio Marine & Nichido Fire lnsur.tnc..-e C..o., l.td., already active in the 

ES. SUf1JitiS lines market, acquiring HCC Insurance Holdings, Inc. (a key participant in the surplus 

lines market). HCC, in tum, had recently acquired ProAg Insurance. Additional M&A activity over the 

past y<-ar includes Global Indemnity's purcha.<.OC of American Reliable and Fosun Group's acquisition of 

Meadowbrook Insurance. These actions merely mirror similar activity across the insur.mce indm;try. 

While the 1ate.<.;t two years have produced strong profitabiUty, rcsu]t<.; in earlier years were impacted 

by \\-Lather related los .. <>es including Superstorm Sandy in 2012. 'n1at event was significant hy any 

mca<;urc, and for many surplus lines carriers, it pushed incurred los..-.es to record levels producing 

results that were oulbide historical trend-, and resulted in combined ratios for the Domestic 

Professional Surplus Lines (DI>sL) that exL"Cedcd the ratios fix the overall property/casualty industry 

for the first time in more than a decade-. In the aftermath, many insurers revisited their books of 

business in tcnns of insun..--d. exposures and JX)Iicy terms and conditions. 

Enterprise risk management (ERM) programs continue to grow in prominence within organi7..ations, 

with regulators and rating agencies alike looking to management teams to incorporate or revisit risk 

appetite and tolerance statements within their ERM stnK.'tures. In order to adhere to these !-,>uidelincs, 

most companies have worked proactively to be compliant while otht~rs arc trying to keep pace 

revisiting risk management frameworks, processes and procedures, exposure aggregations, and risk 

mitigation tactics. 

The continuing investment market challenges such as low return rates and headline making defaults 

(Detroit, Harrisburg, and Puerto Rico) apply nt.ogativc pressure to portfolios. Carriers with strong 

balance sheets feaniting available capital are under pres..-;urc to improve return on equity rates. These 

conditions are leading standard market carriers to exert greater pricing discipHne and minimize risk, 

while leading surplus lines carriers to exhibit more conservative rate management in concert with 

obtaining premium levels in-line with loss costs. The end re..'iult ha., been improved performance 

outcomes across both markets. 
84 


99799.043

Special Report U.S. Surplus Lines 

The total surplus lines direct written premium is distributed across a variety of corporate structUrL'S 

and company dmniciles. Exhibit 5 consolidates the di~iribution of premium by segment,. 

reprco;enting the increases across the line and by segment. A.M. Best believes this reflects an 

expanding appetite for appropriately underwritten surplus lines business, including business written 

through Uoyd's syndicates. 

Exhibit 2 

Surplus Lines Specialists- Operating Performance (2014) 

(%) 

Change in Loss/LAE Combined Pre-Tax ROR Pre-Tax ROE 

-~P!!~111t>----···-·-····-· ----· DPW Ratio Ratio ~ ~ Alleghany Insurance Holdings 3.3 54.7 89.1 23.0 !4.4 

Arch Insurance Group 18.7 64.7 96.1 8.0 6.6 

Argo Group 3.8 62.1 97.3 13.3 7.6 

AXIS Insurance Group -0.4 73.4 109.8 -2.2 ·1.3 

Catlin U.S. Pool 17.6 76.3 97.6 4.1 2.7 

Gfoballndemnlty Group -8.6 62.1 104.1 2.2 1.8 

HCC tnsurance Group 3.1 47.1 77.5 35.1 14.0 

IFG Companies -11.1 56.4 98.3 11.5 4.6 

James River Insurance Company 44.6 56.4 88.7 33.3 10.8 

Markel Corporation Group 4.7 57.0 95.8 10.6 8.8 

Rl!Group 2.2 43.2 84.0 25.3 20.4 

W. R. Berldey Group 10.3 59.3 91.7 20.6 19.3 

Western Wortd insurance Groue 17.8 23.8 57.8 50.4 35.3 

Avera!J! w Sur~us Unes ~alsts 8.2 56.7 91.4 18.1 11.2 

Total PIC Industry 4.5 69.0 97.2 12.8 9.2 

Source: ~f!:~TON~:_('> -A.M. Best Co.'s AMB Credit Report - Insurance Professional 

Surplus lines specialist.<; provide wide r.mging product diversification to cover the varied exposures 

that require critical insurance solutions in the market. These specialists, a'i shown in Exhibit 2 and 

Exhibit 3 generate a significant arnotmt of operating profits, solid returns and favorable re.-;erve 

development. Surplus lines specialists are U.S. domiciled insurers that primarily write surplus and 1 or 

spedalty admitted business. These specialists largely exclude companies or groups that are part of a 

much larger, global multiline insurance . . 

operation, but include some specialty Exhibit 3 

groups with Bermuda-based parcnL,. Top Surplus Lines Specialists - Loss Reserve 

Development (2014 Calendar Year) 

Reserve adequacy is a material 

component of A.M. Best's 

assessment of overall capital 

adequacy and the ongoing trend of 

(USO thousands) 

favorable though tightening reserve _,G';'ro,.u._p _..,N,am,e"----=-c----

dcveloprncnt for the surplus lines Alleghany Insurance Holdings 

market has been recognized. A.M. Arch Insurance Group 

Best continues to expect this ability ::~~:~~nee Group 

to benefit from favorable rcst·rve Gatlin U.S. Pool 

development to dissipate. The point 

at which the industry as a whole 

is unable to sustain consolidated 

favorable reserve development may Markel Corporation Group 

be nearer than before. However, RU Group 

surplus lines carriers that arc able to W. R:. Berkley Group 

One-Year one--Year Loss Reserve Development 

Development to Original Through 2013 

2014 (000) Reserves(%) 

-$218,284 ·2.2% 

-2.2% 

2.0% 

499.596 -5.5% 

9.9% 

22% 

·$70,546 -4,0% 

-$13,434 ~3.5% 

-$15,604 ~13.3% 

-$164,276 -5.6% 

·$66,987 -9,2% 

-$155,527 ·1.8% 

maintain conservative Joss reserve _,w,e"st,er-"n-"W'=orl"'d"'ln,su,r"'an,ce"-Ge!ro"'u"'p:-:-co-----""""'".c:!"----"'""""'-

selections and support strong -::~ota~ver"'."":!~"':;c'"'·ln,s:.,~"'P~,us'-'u""·n,_,es=Spec~=·,alsls=--....,..c:.:!!"""""----=""'-

-$178,449 -30.0% 

-$7&.396 -4.9% 

baiancc sheet positions will likely Source: A.M. Best data and research -$6,740,000 -1.6% 
85 


99799.044

Special Report 

Exhibit 4 

U.S. Surplus Lines - DPW by Segment 

(1989-2014) 

-Domestic Professional -Uoyd's 

~=~Regulated Aliens (excl.lloyd's) -Domestic Specialty 

Source: A.M. Best data and research 

Exhibit 5 

U.S. Surplus Lines - Market Share by Segment 

(1989-2014) 

.Domestic Specialty 

oUoyd's 

Source: A.M. Best data and research 

Exhibit 6 

.:.Regulated Aliens (excl.lloyd's) 

.Domestic Professional 

U.S. Surplus Lines - Direct Premiums Written 

vs. Commercial Lines (1994, 2004, 2014) 

~ 

~ 0 

~ 

~ 

2004 2014 

16% 

14% ?ft. 

12%~~ 

10"/o 3 ffi 

8% 

6% 

4% 

2% 

0% 

~.~ 

"'"" rw 

~· ~ 

1994 

&m~~~JCommercia! Unes ~surplus tines 

Surplus Unes as a %of Commercial lines 

Source: AM. Best data and research 

U.S. Surplus Lines 

have the ability to benefit in 

forthcoming years and be able to 

absorb the inevitable fluctuations 

in Joss frequency and severity. 

Surplus lines insurers have 

traditionally applied spcdalized 

underwriting to each risk and 

utilized their freedom of rate and 

form to serve a...;; a market of last 

resort. However, A.M. Best has 

observed an increase of traditional 

standard market carriers expanding 

their capacity to write non~standard 

business with a subsidiary or 

affiliate Stru<...'tured and designed to 

operate as a surplus lines company. 

While none of these companies 

have enough size to reach the 

status of a Top 25 surplu.,'i lines 

company (Exhibit 8) in terms of 

direct premiums "Written many 

are within striking distance and 

may reach this level in the coming 

years as they continue to grow. 

A handful of these companies 

are expanding their appetite for 

nonadmitted business to retain 

membership within the group or as 

a diversification play. 

For the fourth straight year, 

domestic professional surplus lines 

(DPSL) carriers, those writing >50% 

of their business on a nonadmitted 

ba.<;is, saw their direct premium 

levels grow. Growth also was 

seen across other channels when 

comparing 2014 to 2013 (Exhibit 

4), notably non-Lloyd's alim 

companies (this premium is tracked 

by the National As..'iOCiation of 

Insurance Commissioners). 

Exhibit 6 shows the path 'urplus 

lines premium has taken over the 

last 20 years. Over time, surplus 

lines premium as, a pen..--entage of 

total commercial lines premium has 

increased steadily. The proportion 

seen in 2014 is the highest recorded 

since first measuring this split. 
86 


99799.045

Special Report U.S. Surplus Lines 

Further in-depth analysis of surplus lines financial results and measures will be explored in 

Section U - Financial Condition and Ratings Distribution. 

Leading Surplus Lines Companies and Groups 

Exhibit 7 encompasses the leading surplus lines organizations, measured on the basis of 

2014 direct premiums written. We have already noted that the top position among surplus 

Jines groups in terms of DPW has most recently been held by Lloyd's. The growth in premium 

written by Lloyd's and the increase in the Lloyd's share of the surplus lines market is a trend 

that be&ran many years ago. Lloyd's provides a unique platform for partnering with MGAs or for 

primary insurers looking for reinsurance participants on their surplus lines programs. 

Among domestic groups, the largest writer of surplus lines DPW remains AIG, primarily through 

LexingtOn In~urancc Company. It.o; direct written premium level~ remain near $5.0 billion, a con.'iistent 

amount over the Jao;t five years and reflective of its strengths in the market. AIG has shifted some of 

it• premium production offshore, from Lexington to A!G Europe limited, a licensed non-Uoyds alien 

in~11rance comp-.my. This has con~traint."d the total premium captured in the group rankings for the 

organization, but it is still more than double the surplus lines DPW of the next domestic group. The 

con..solidation of the DPW gt.'tlerated by these two leading groups continues to remain near 30% of the 

m~'Ufed surplus lines market. 

Most of the composition 

of the top ten groups 

remains the same 

as last year, notably 

Nationwide Group 

(through the Scottsdale 

Insurance COmpany 

subsidiary), W.R. 

Beddey, Zurich 

Financial, and MarkeL 

These organizations 

have consistently been 

among the leaders in 

surplus lines with long 

standing relationships 

and rccogni:t..able brand 

names. There is some 

shifting among the top 

groups for 2014 with 

Ironshore Insurance 

Group and Berkshire 

Hathaway accumulating 

significant gains in 

premium to reach a 

top ten position in the 

market. While Berkshire 

is making an aggressive 

run in this space, 

Jronshore was one of 

the companies that 

expected to be acquired 

by Fosun in 2015. 

Exhibit 7 

U.S. Surplus Lines- Top 25 Groups {2014) 

Ranked by direct premiums written. 

(USD Thousands) 

Surplus 

Rank AMB No. Grou~ Name LinesDPW 

1 85202 lloyd's 8,157,~00 

18540 American International Group 4,679,470 

05987 Nationwide Group 1,700,987 

18252 

18549 

18468 Markel Corporation Group 1,191,418 

18498 AC~INAGroup 1,032,381! 

18728 !ronshore Insurance Group 894,986 

9 00011 

10 03116 

11 1864il 700,702 

12 16313 745,81!6 

13 18130 726,916 

14 18603 591,135 

15 00012 Chubb Group of Insurance Companies 574,425 

16 18484 Arch Insurance Group 548,931 

17 04019 Argo Group 526,338 

18 18713 OBE Americas Group 522,55<) 

19 18591 Allied World Group 517,559 

20 04835 Great Amerk:an P&C Group 472,564 

21 18720 Caflin U.S. Pool 443,724 

22 18604 State National Group 

23 18783 Aspen US Insurance Group 

24 18756 Starr lntemational Group 396,987 

Total 

SUrplus 

Lines 

Market 

Share ('l!l 

20.3 

11.6 

4.4 

3.7 

3.0 

3.0 

2.6 

2.2 

2.1 

2.0 

1.9 

1.9 

1.8 

1.5 

1.4 

1.4 

1.3 

1.3 

1.3 

1.2 

1.1 

1.1 

1.1 

1.0 

25 03262 Swlss Reinsurance Groug 378,134 ____ 0.9 

Subtotal o!Top 25 $30,141,363 74.9 

Total U.S. Sur~lus Unes Market 540,233,826 100,0 

Source: AM. Best data and research 
87 


99799.046

Special Report 

Exhibit 8 

u.s. Surplus Lines- Top 25 Companies (2014} 

Ranked by direct premiums written. 

(USD Thousands) 

Rank AMB No. Com~any Name 

j 02350 lexingtonlnsurance Company 

2 03292 Scottsdale Insurance Company 

03557 Steadfast lnsurence Coinpany 

4 03535 AIG Specialty Insurance Co American International Group 

5 13866 lronshore Specialty Ins Co tronshom Insurance Group 

6 03538 Columbia casualty Company CNA Insurance Companies 

7 11340 lndian Harbor Insurance Co X:l America Group 

12515 AXIS Surpius Insurance Company AXIS Insurance Group 

04433 Westchester SUrplus Unes Ins ACE INA Group 

10 12523 

11 02428 

12 12619 

13 02713 Chubb Custom Insurance Co 

14 12562 OBE Specialty Insurance Co OBE Americas Group 

15 03283 Colony Insurance Company 

16 01990 Nautilus Insurance Company 

17 03759 Evanston Insurance Company 

18 02732 Essex Insurance Company 

19 12118 Gemini Insurance Company 

20 03510 Illinois Union Insurance Co 

21 10092 

22 03026 

23 13105 United Specialty Insurance 

24 12630 Aspen Specialty Insurance Co 

25 13977 Starr S!!ffiiUs lines ComQafl¥ 

Subtotal 

Total u.s. Sur~lus Unes Market 

Source: A.M. Best data and research 

U.S. Surplus Lines 

Total 

SUrplus 

Surplus Unes Lines Share 

DPW !'!!! 3,700,213 9.4% 

1,559,064 3.9% 

1,051,685 2.0% 

2.2% 

2.2% 

745,886 1.9% 

726,883 1.8% 

591,135 1.5% 

575,138 1.4% 

548,931 1.4% 

540,747 1.3% 

532,764 1.3% 

526,899 1.3% 

522,550 1.3% 

522,240 1.3% 

506,983 1.3% 

4$4,732 1.2% 

472,335 1.2%" 

467,658 1.2% 

i.Wn 

1.1% 

443,067 1.1% 

434,505 1.1% 

425,002 1.1% 

396,9!!7 1.0% 

$18,536,272 46.1% 

$40,233,826 100.0% 

Greater vari:tbility is seen further down the top 25 list with a few organizations moving five or more 

spots up or down. Most member companies experience growth or contraction in diret.'t premium 

kvels a_.;; they move into or out of selected lines of business. As always, the counter cyclical nature of 

the surplus lines market relative to the standard insurance industry leads to a resolute exp-.mding/ 

contracting rhythm for their direct premium. This may launch a group into the top 25, only to see it 

drop off in later years. A continued trend is the expanded diversity of the market as the population 

of the top 25 companies shifts. (Sec Exhibit 8.) One ongoing driver is interest from investors 

for creating new entrants in this market as an investment opportunity is perceived. Another 

ongoing trend is the advancement of total direct premium, as many of the top 25 group members 

experienced overall growth in direct premium during 2014. This is a condition of the surroundings 

as the top surplus lines markets effectively exerted their market influence. 

Given the historical trends, it would be a real challenge for any observer to predict how 

the list of leading companies would look in the near-term future. Although a fair portion 

of the ran kings remain the same from ten years prior (see Exhibit 9), constant merger and 

acquisition activity, start-up companies, and poor operating performance can be expected to 

add companies to, or subtract them from, the surplus lines market. Even with this dynamic, 

A.M. Best believes that the top-tier surplus lines insurers, those with a proven track record 

of favorable operating results, strong balance sheet positions, and supportive market profiles, 

will retain their position through a combination of disciplined underwriting and product 

innovation. 
88 


99799.047

Special Report 

Current Challenges 

The ability to generate favorable 

underwriting results is the 

mainstay of profitability of any 

insurance company. A.M. Best 

actively monitors all conditions 

that impact markets, and as we 

will note here, <..'Cftain factors 

created specific challt.'flge...;;. for the 

surplus lines market partidpants. 

Even despite the la..o;t two years of 

&"trong tmderwriting profitability, 

.&urplus lines companies have been 

facing tighter operating conditions 

in order to be able to generate 

income. These companies 

continued to serve a.'i a "market of 

last resort" for the higher hazard 

classes not served by traditional 

markets, and that io:.; not expected 

to change any time soon. 

As more companies enter 

the arena, either as startups, reinsurers dropping 

down to working layers, or 

standard carriers expanding 

their appetite and tolerance, 

competition will likely increase 

on price, distribution, risk 

management, and client 

services. Even with the surplus 

U.S. Surplus Lines 

Exhibit 9 

U.S. Surplus Lines - Top 25 Groups (2005) 

Ranked by direct premiums written. 

(USO Thousands) 

Surplus Total Surplus 

Lines Lines Markel 

DPW Share(%) 

s,9n,o7o 21.0% 

4,675,000 14.0% 

1,739,701 5.2% 

1.497,092 4.5% 

4.2% 

4.0% 

1,276,579 3.8% 

2.7% 

9 CNA Insurance Companies 2.4% 

10 2.4% 

11 630,238 1.9% 

12 599,185 1.8% 

13 520,141 1.6% 

14 Chubb Group 459,080 1.4% 

15 United America lru;femnity Group 437,025 1.3% 

16 XL America Group 1.3% 

17 1.2% 

18 367,955 1.1% 

19 361,291 1.1% 

20 1.1% 

21 1.0% 

22 325,082 1.0% 

23 306,216 0.9% 

24 275,104 0.8% 

256797 0.8% 

27,450,418 82.5% 

Total u.s. surplus Lines Markel 33,2!!0,702 100.0 

Source: A.M. Best Co. Report Annual Review of the Excess & Su!p/us Lines 

Industry, September 2006 

lines market's freedom of rate and form, a portion of the market's capacity is restricted by 

price sensitivity and unable to advance price corrections without a loss of market share, or for 

various reasons, still have operations conducted on an admitted basis. The discussion of the 

investment environment and the adverse impact it is having on the insurance industry has 

become repetitive. Almost every company across the industry has been forced to evaluate their 

portfolios and make tough choices to allocations, strategies, and risk I return tolerances. The 

surplus lines carriers arc in this same boat and making the same choices. One area on which 

A.M. Best has already commented in separate special reports and webinars is diversification 

within investment portfolios focused on Schedule BA assets, hedge funds, private placements, 

and 144A holdings. Best has observed an increase in these assets in investment portfolios of 

surplus lines carriers to a level similar with the overall industry. 

Concerns of where to invest "new money" and expectations of depressed future treasury 

yields are factors cited by insurance executives when discussing investment allocation 

decisions away from traditional assets. The analysis of investment risk will always have a 

comprehensive review of portfolio risk. Nonetheless, A.M. Best is alert to the modifications in 

investment risk tolerances and will take a deeper dive when necessary. Furthermore, in Best's 

Capital Adequacy Ratio (BCAR) analyses, more emphasis wi1l be placed on understanding the 

risk parameters of these vehicles and significantly higher capital risk factors may be applied on 

the amounts allocated to these investments. 
89 


99799.048

U.S. Lines 

The surplus lines market typically receives credit for being ahead of the curve on 

innovation. As noted in prior special reports on this market, exposures such as technological 

advancements, environmentalliabilJty, and cybcr risks are areas where surplus lines carriers 

have been able to meet the needs and demands of the markets. Underwriting discipline 

and sophisticated pricing models allow carriers to design and develop products providing 

appropriate coverage. The ability to advance these differentiating products continues to benefit 

this niche as the next generation of new exposures develops. 

The greatest chaUenge to an individual surplus Hnes carrier may be retaining its market 

share. Since a fair portion of this business comes from brokers, surplus lines business is 

generally shopped each year to some extent, resulting in lower policyholder retention. As 

a group, surplus lines carriers have focused on improving retention via technology, better 

broker relationships and enhancing their underwriting analytical capability. This leads to a 

consistently competitive environment for retention. As one carrier tightens its risk appetite and 

deems certain types of exposures to be outside of its preferred risk profile, another may reach 

the conclusion it has the expertise and capability for that same risk. 

In an effort to retain market share, some surplus lines organizations have enhanced their 

network through acquiring renewal rights or establishing new MGAs. Another area of concern 

for traditional surplus lines carriers is the fact that new entrants and new parents of existing 

players are likely to create even more competition. Additionally, reinsurers have made moves 

to "drop~down" into primary layers. Also, new start-up companies, often financed by private 

equity looking for investment opportunities, can threaten the market share of established 

surplus lines insurers. The divcrsificaOon and expanded capacity in the market is expected 

to continue to drive investment by current incumbent market leaders in their own systems, 

capabilities, and core competencies in order to retain their positions in this market. 

The Lloyd's Market 

Lloyd's has been active in the United States since the late 1800s. As the top writer of nonadmitted 

business from 2010 through 2014, it plays an extremely important role in the surplus lines market. 

The Cnitcd States continues to be Lloyd's biggest market, with surplus lines and reinsurance 

activitks generating the majority of Lloyd's US. sourced revenues. Risks underwritten by LJoyd's 

v.try considerAbly, encompas...,ing both property and liability loss exposures. With roughly $8.2 

billion in DPW in 2014, Lloyd's represents approximately 20.3% of the surplus lines market 

Over the past decade, Lloyd's surplus lines premium volume has grown fmm increased marketing 

activity, new agency appointments, risk-bearing affiliates of syndicates, and the enhanced 

awareness of Lloyd's security ratings among buyers and producers. Lloyd's surplus lines premium 

continues to exceed the combined premium levels of its U.S. reinsurance and direct business. 

Overall, A.M. Best believes Lloyd's will continue to maintain its substantial participation in the U.S. 

surplus lines market, despite the volatile earnings inherent in surplus lines business. 

Mergers & Acquisitions 

The insuran(·e industry appetite for mergers and acquisitions continue..;; to make news headlines. 

Surplus lines carriers may not be the primary source of this news. but they arc making wavc.s. One 

such extremely noteworthy item is the continuing narrative of AXIS Capital Holdings Ltd., the ultimate 

parent of AXIS Surplus Insurance Company, which as of 2014, was the 14th largest surplus tines carrier. 

A tr'J.nsaction th.1.t would combine AXJS Glpital with PartnerRe Ltd. \Vas initially announced January 25, 

2015. Subsequent invoivt..ment in the bidding for PartnerRe by Exor S.p.A led to ongoing negotiations, 

court activity, and a delay in the initial merger proct.'Cdings moving forward. On August 3, it was 

announced that Exor had won the bid to acquire PartnerRe for $6.9 billion of $140.50 per share. A.M. 

Best will continue to monitor developments relative to this announct.--d purchase. 
90 


99799.049

Special Report U.S. Surplus Lines 

Likewise, on july 1, 2015, it was announced that Ace Ltd. will acquire Chubb Corporation in a 

transaction valued $28.3 billion. Both of these organizations derive signiftcant levels of their 

direct premium from the surplus lines market. 

Activity that has already reached completion in 2015 included XL Group pic dosing its deal to 

take ownership of catlin Group Umited. This acquisition was announced January 1, 2015, and 

subsequently closed May 1, 2015. This consolidation of two members of the top 25 U.S. surplus 

Jines groups ha.., had an impact on the market, including narrowing the field and dispersing talent. 

HCC Insurance Holdings, Inc. (HCC) announced in October 2014 and closed on january 1, 

2015 their acquisition of Producers Ag Insurance Group from CUNA Mutual Group. Though 

crop insurance is not written on a surplus lines basis, many large insurers and reinsurers 

have been interested in crop insurance due to its product specialization, technology and the 

benefits afforded through government support and subsidies. The Producers Ag acquisition 

further strengthened HCC's product and earnings diversification. In a transaction announced 

June 10, 2015, Tokio Marine Holdings, Inc., through its subsidiary Tokio Marine & Nichido Fire 

Insurance Co., Ltd., is acquiring HCC for a total of $7.5 billion. Tokio Marine's purchase of a 

U.S. based property casualty insurer marks its second big splash since acquiring Philadelphia 

Consolidated Holding Corp for $4.7 billion in late 2008. 

Another transaction first announced late in 2014, after the publication of the 2014 surplus lines 

report, involved Meadowbrook Insurance Group (Meadowbrook). In July 2015, Meadowbrook 

was acquired by Shanghai based investment group, Fosun International Ltd. In a separate 

deal announced in May 2015, Fosun announced its plans to acquire the remaining interest in 
91 


99799.050

Special Report U.S. Surplus Lines 

Ironshore Inc., for $1.84 billion. These transactions further enhance Fosun's plans to build out 

its insurance business globally. 

ln a relatively minor transaction, Assurant Inc., one of the smaller surplus lines market 

participants, streamlined its organization with the sale of American Reliable Insurance 

Company to Global Indemnity. This transaction will allow Global Indemnity to expand into 

complementary surplus lines of business and achieve certain economics of scale. 

Shortly after the publication of this special report last year, the acquisition of Western \X'orld 

by Validus was completed. This acquisition represented another clear example of a recognized 

reinsurer making a bold move into the U.S. surplus Jines arena. 

The next transaction cannot be predicted; however, it is almost a certainty that there will be 

additional mergers or acquisitions within the surplus lines market in the near term. Capital 

needs to be allocated where it will create favorable returns for appropriate risks. Across the 

industry, the option for entering or strengthening a position within a business line is moving 

into a more prominent position in the market, especially for those with a strong balance sheet 

position. Add to this the challenge of depressed returns on investments and the result is a 

continuing appetite for merger and acquisition activity. 

A.M. Best's View of the Surplus Lines Market 

The state of the surplus lines market through the remainder of 2015 is viewed to be stable. 

This view takes into consideration continued modest economic improvernt·nt, GDP growth of 

approximately 3%, moderate loss cost inflation between 2 to 4% and an incremental rise in interest 

rates in the range of 250 to 350 basis points by year end 2015. Equally important, this view assumes 

some degree of price discipline on the part of surplus lines insurers and to some extent, similar 

behavior from standard market insurers. A.M. Rest helieve..;; that today's prevailing low interest rate 

environment will help to keep aggressive pricing on the sideline, This perspective also anticipates a 

continuation of favorable prior year reserve releases albeit at a lesser pace. 

Using an avemge return on investment of S%, A.M. Best believes that surplus lines insurers in 

the aggregate should be able to sustain a rate of return on equity at or greater than 10% in 2015. 

This assumes a combined rJ.tio of 90% to 95%, attritionalloss ratio between 60% to 6S% and nonattritionaJ losses of '5% including storm activity. This also assumes the continued benefit of favorable 

prior year reserve development. 

A.M. nest views the surplus lines market as stable from a rJtings perspective and expects that 

the vast majority of surplus lines insurers will have their ratings affirmed. While this is our 

general view of the market, many conditions, such as underwriting profitability, competition, new 

products, investment returns, and reserve development, will affect our analysis of each company 

operating in this line. 

Over the last ten years. the surplus lines sector recorded seven years of underwriting profit, with 

the exception being three consecutive years from 2010 through 2012. A.M. Best expects 2015 to 

be another fruitful year of underwriting profitability for this niche. 

We have observed that despite ali of the challenges, carriers in general are maintaining 

pricing discipline. Our perspective for an upbeat 2015 also contemplates three points of 

catastrophe losses in the year - a point impact similar to the assumption used in our forecast 

for commercial lines insurers. It should be noted that surplus lines carriers, by nature of the 

specialized business and risk appetite, will remain exposed to large losses such as natural 

catastrophes and terrorism events. Weather-wise, the hazard comes from a variety of events 
92 


99799.051

U.S. Surplus Lines 

(hurricanes, tornadoes, polar vortex), but the prudent carriers remain forefront as they monitor the 

risks. Terrorism exposures also continue to be a primary conccm. Advances in risk assessment, usc 

of standard reinsurance, and pas.sagc of TRIPRA 2015 (discuss'"'d in detail later in this report) partially 

mitigate this concern. Regardless of the extent that the impact of these event':! on a book of business 

can be minimized, their occurrence patterns may be less predictable than ever. That noted, models, 

TVAR calculations, and PML accumulation monitoring are necessities for day-to-day decisions. 

Another key clement in surplus lines carrier operations is the extensive commitment to develop 

and implement more sophisticated technology These mea.-;;urcs already are proving valuable in 

interfacing with producers in an efficient manner, parsing volume..<> of data to identify desirable 

risks versus problematic ones, tracking underwriter and producer success, and ac'tivcly monitoring 

ri_o;k accumulations on a highly defined leveL It is getting to the point that if an insurer is not taking 

effective advantage of these capabilities, it likely will be fighting an uphill battle for relevance and 

viability in the surplus lines markets. 

Successful surplus Jines carriers arc those whose Jx)ardo; and management teams have been able to 

apply strJ.tegic options to turn threats into opportunities. Application of underwriting capabi1ity 

to reverse poor experience in a highly specialized line is just one example of turning the tables on 

perceived weaknesses in a busines.o.; profile. One way to a....•;scss this is implementation of a risk appetite 

and tolerance statemt."11t. A.M. Best began requesting these from ali insurance carriers through the 

2014 Supplemental Rating Quc<;tioruuire distributed during tht• first quaru~r of 2015. Organizations 

that have the ability to clearly and succinctly state and implement these mea...,ures will be in a better 

position to retain or enhance their positions in the surplus lines market. Even with all of these items, 

the expectation of surplus lines carriers and their long term success remains grounded in key f.tctors: 

freedom of rate and form, ability to maintain price integrity, a focus on bottom line stability, balanced 

risk I reward tolerance k."Vcls, strong investment rctums, and enterprise risk management capability 

cxcecdin._~ risk profiles. 

Conclusion 

Through the first half of 2015, overall market conditions remain comparable with 2014, demonstrating 

ongoing competition, low interest ratt.-s and limited weather related events. With persistently low 

interest rates providing only marginal investment returns, underwriting performance remains a.<; the 

leading driver of operating performance. 'Ibtal investment income from both traditional and higher 

yielding a.:;..<;et cla.:;ses are net-'ded to provide additional sup{X)rt to income and surplus. 

'n1e core competencies of the successful surplus lines carriers remain the same, focused on effective 

strJ.tcgic analysis, product diversification and underwriting discipline. Advantageous market conditions 

and an environment conducive ro opportunb-tic mergers and acquisitions only further benefit the strong 

carriers. Competition continues to expand in this market either through affiliated companies, new 

cntranl<; or M&A activity Even with the best ability to fOcus on their own performance, surplus lines 

carriers remain exposed to external factors, such as economic conditions and judicial or regulatory 

concerns that can and will interfere with daily operation.•• and llnancial succe_.:;..<;. 

Historically, the best surplus lines insurers have focused on maintaining the underwriting 

and pricing integrity that have been the hallmark of this market segment. These companies 

typically focus more on bottom-line profits than top~Hne organic growth, utilizing the 

segment's freedom of rate and form, whHe providing coverage for the varied, nonstandard risks 

that they underwrite. This focus gives these insurers the hest chance to withstand adverse 

market circumstances and succeed over the long term. A.M. Best expects surplus lines insurers 

to concentrate on using proven fundamentals to overcome the execution risk presented by 

current and future underwriting and investment market conditions. 
93 


99799.052

Special Report U.S. Surplus Lines 

Section II - Financial Condition and 

Rating Distribution 

In the past, A.M. Best was able to report with near certainty the surplus Jines premium volume 

written by the 73 companies that make up the Domestic Professional Surplus Lines (DPSL) 

composite. (See sidebar, A.A1. Best's DPSL Peer Composite Defined.) However, as the industry 

advances, multiple admitted and non-admitted specialty carriers have been established within 

the same group. With these, risk-sharing tools such as pooling agreements and internal 

reinsurance programs have been employed, blurring the statutory reporting lines between the 

segments and their related data. 

For example, on January 1, 2014, Lexington Insurance Company expanded their pooling 

agreement with more entities from across numerous AIG segments, mixing standard and 

surplus lines business into a homogenous pool shared among the participants. Though this 

strategy is not unprecedented, the magnitude of the agreement has led to an extraordinarily 

substantial impact on the surplus lines premium data for 2014. In particular, during 2013, 

Lexington Insurance Company assumed $1.6 billion in premium. With its new pooling 

agreement, the amount of the 

company's assumed premium 

increased almost 550%, to 

$10.2 billion. As Lexington is a 

component of the DPSL composite, 

those results also were impacted 

with an increase in assumed 

premium from $4.9 billion in 2013 

to $!2.6 billion in 2014. Though 

partially offset by the sharp 

increase in ceded premiums ($11.2 

billion in 2014 from $8.5 billion in 

2013), the effect on the composite's 

net written premium was still 

substantial, increasing 20% to $10.6 

billion from $8.8 billion in 2013. 

Exhibit 10 

U.S. DPSL * - Combined Ratios vs. 

U.S. P/C Industry 

120.------------------, 

70 +:,oo-:-:'"":·o"",~.-:co2~.-:co3~.-:c04~.---os~·---oo~·---o7~.---oa~.-09~.-,o~.-,,~.-,2~.-,3~.---J,4 

• Domestic Professional Surplus lines 

Source: AM. Best data and research 
94 


99799.053

U.S. Surplus Lines 

As the Jines lx.'1w<..-cn classes of business become less cle-ar, operJ.tional and strategic changes made by 

the larger players in the indu.<;tr}' '\Viii int."Vitably alter the juxtaposition of data between perkxls. 

OPSL Peer Composite Overview 

A.M. Best's domestic professional surplus lines (DPSL) composite is a consolidation of73 C.S.-bascd 

DPSL companies committed to the surplus lines space and provides a good indication as to the 

health of the surplus lines sector. In 2013 and 2014, direct written premium for this composite 

grew at 3.5% and 3.3%, respectively. As for net written premiums, growth in 2014 was 19.9% 

Similar to the segment's performance in 2013, the DPSL composite continued to outpace 

the operating and underwriting results posted by the P/C industry in 2014. Benefiting from 

another benign catastrophe year in 2014, the composite posted loss ratios below the prior year 

in most Jines of business, which helped achieve the lowest overall loss and LAE ratio since 

2007. (Sec Exhibit 11.) Also helping to sustain underwriting profits in 2014, was the steady 

increase in direct premium writings, supported by exposure and r.tte growth. 

Notwithstanding the companies' 

consistently profitable 

performance, the composite 

still struggled in 2014, with low 

investment yields and continued 

excess capacity. The sharp decline 

in investment yields was the result 

of an increased asset base but 

with a decrease in investment 

income, driven by the low interest 

rate environment. This occurred 

despite an increase in common 

stock a11ocations that provided an 

opportunity for diversification. 

Operating Performance 

The DPSL composite continues 

Exhibit 11 

U.S. DPSL * - Net Loss & Loss Adjustment 

Expense Ratios vs. U.S. P/C Industry 

l 

~80 

~m~-------=~~--~--~~--~~~ :ij 

gj 

3 00~------------\---1-----------~~ 

~ 

'00 '01 '02 '03 '04 '05 '06 '07 '08 '09 '10 '11 '12 '13 '14 

• Domestic Professional Surplus lines 

Source: A.M. Best data and research 

to dearly outpace the underwriting and operating results of the total P/C industry, as evident 

in the composite's 99.0 and 99.3 five~ and ten·ycar combined ratios, compared with 10L2 and 

101.1, respectively, for the total P/C industry, (See Exhibit 10.) ft's important to note, abo, 

that the composite's combined ratios in 2013 and 2014, at 92.4 and 88.8, respectively, were 

well below their five- and ten-year averages and the total P/C industry's combined ratio in 

those years. Furthermore, the DPSL composite posted lower combined ratios than the total 

P/C industry in nine out of the last ten years, though the difference between the two has 

narrowed. 

The impact on surplus lines in~urcrs' underwriting profitability from prior years' weather* 

related losses has lessened, since the segment's innate exposure to catastrophe-prone risks 

hasn't been taxed since the storms of 2012. The lack of signifh:ant weather-related events in 

2014 boosted the underwriting performance by tempering the composite's pure loss ratio to 

44.7, its lowest level in over five years. This compares very favorably to the total P/C industry's 

2014 loss ratio of 57.2. The underwriting controls and pricing discipline exhibited throughout 

the surplus lines market ensures the continuity of secure capitalization levels moving forward. 

The DPSL composite's operating ratio still compared favorably to that of the total P/C industry 

in 2014, at 72.3% compared to 86.1%, though the gap between the two narrowed from 201.3 
95 


99799.054

U.S. Surplus Lines 

(13.8 pts. vs. 19.8 pts.). This reduced spread is attributed to the composite's diminished net 

investment ratio of 16.5% compared to 26.8% in 2013, with both an increased premium base 

and a 26% decline in investment income driving this trend. Nonetheless, 20J4 marked the 

composite's second best operating performance since 2007 (2013 was the best), which is a 

testament to the strength and consistency of the surplus lines segment. 

Posting the second-straight year of underwriting profitability, the composite was wellpositioned to offset the decline in investment income with underwriting performance. Pretax 

operating profits in 2014 rank well historically, as higher operating profits were only seen in 

four of the last ten years, one of which was 2013. The step back from 2013 levels was caused 

by the decline in investment income. Mirroring the operating profitability, the composite's net 

income remained strong at $2.8 billion, a moderate 17% decline from 2013's ncar-record leveL 

Though net income through the composite was strong: in 2014, essentially none was passed 

through to policyholder surplus. as surplus levels dropped 1.7%. The stockholder dividends 

paid out more than offset the favorable net profitability, which indicates strong capitalization 

and optimism throughout the segment. This dip in surplus levels contrasts with the total P/C 

industry's 3.4% increase. 

Despite this disparity in surplus growth, the DPSI. composite's pretax returns outperformed 

the total P/C industry by a strong margin. (See Exhibit 14.) Reflecting the prior ten years, the 

2014 DPSL composite exceeded the total P/C industry's total return on revenue at 32.3% and 

14.0%, respectively, and total return on equity at 14.8% and 10.1%, respectively. This favorable 

trend has persisted throughout even the high catastrophe event years, evident of the surplus 

lines segments emphasis on strong underwriting controls, superior capital position, risk 

selection and diversification. as well as operating efficiency. 

Net Investment Gains 

The DPSL's net investment income again reversed course in 2014, falling 26.1% after increasing 

by 11.0% in 2013. (Sec Exhibit 12.) However, the overall P/C Industry recognized the opposite 

result, increasing 115% in 2014 and falling: Ll% in the previous year. For the fourth straight year, the 

DPSL composite incn..--ased its total stock allocation, now approaching $10.9 billion, whereas the bond 

allocation has declined since 2011, and now stands at $:)Ll billion. The increase in stock alloc"ation is 

also supported by a diminishing ca."ih and short-term investment allocation, now a mere 5.7% of total 

admitted a.<;set.;; throughout the comfX)site. Generally, the trend of increasing ~1ock allocation is also 

evident in th(~ total P/C industry, although to a slightly lcs...cr degree. Of course, this increase in ~stock 

allocation" was driven, in part, by the appredation in the market value of thc.se assets over the last 

few years. 

Exhibit 12 

U.S. DPSL * Composite -Investment Performance vs. P/C Industry 

(USO Billions) 

Total P/C Total P/C 

DPSL * DPSL' YearlY ear Industry Industry 

2013 2014 Change(%) 2013 2014 

Net Investment Income 2,357 1,741 -26.1 49,501 55,179 

Realized capital Gains or (Losses) S54 843 52.2 12,141 12,086 

Net Investment Gain 2,911 2,584 ·11.2 61,642 67,265 

Unrealized capital Gains or (Losses) 865 563 -34.9 38,611 4,215 

Total Investment Return 3,776 3,147 -16.7 100.253 71,480 

•Domestic Professional Surplus Lines 

Source: A.M. Best data and research 

Year/Year 

Change(%) 

11.5 

-0.5 

9.1 

-89.1 

-28.7 
96 


99799.055

In 2014, the composite's realized gains 

of $813 million and unrealized gain•; 

of nearly $563 million on investments 

softened the decline in total investment 

return to 85% when compared to 

2013. The PIC industry experienced a 

more pronounced (approximately 29%) 

decline in its total investment return, 

which was driven by below-average 

unrealized capita! gains. 

Favorable loss-Reserve Development 

Throughout the past few years, 

favorable prior-year loss-reserve 

development has boosted the 

overall P /C industry's underwriting 

profitability. Likewise, favorable 

reserve development reduced the 

DPSL composite's loss ratio by 3.6 

points in 2014, though less than the 

85 points in 2013. Mirroring the 

DPSt composite. the overall P/C 

industry recognized a 1.9 and 3.6 

point reduction in 2014 and 2013, 

R'"Spectively. 

U.S. Surplus Lines 

Exhibit 13 

U.S. DPSL* Composite vs. P/C IndustryNPW Growth (1974-2014) 

• Domestic Professional Surplus Lines 

Source: A,M. Best data and research 

Exhibit 14 

U.S. DPSL* - Pretax Returns on Net Premiums 

Earned (NPE) vs. U.S. P/C Industry 

~~------------------------------------·· 

-OPSL • -PIC Industry 

These "' findings are consi~Lent with iE 

A.M. Best's perspective that although 

the favorable reserve development is 

supporting underwriting profitability, 

the magnitude of the support is 

dedining and wilJ continue to 

dissipate. C'--Ommercial auto insurers 

are already realizing rapidly rising 

adverse reserve development 

throughout the P/C industry, while 

the DPSL composite companies are 

seeing adverse development across 

several line..:;. One maln driver of this 

trend is the ongoing reserve margin 

tightt.'11ing amongst surplus lines 

in.'iurers, reflective of patterns within 

the overaU industry. Insurers that have 

reserved conservatively will continue 

to benefit from reserve redundancies 

and will be hetter positioned to take 

advantage of market opportunities 

through d1e cycle as others are forced 

to recognize reserve redundancies, 

leading to eroding underwriting 

results and surplus positions. 

~ Domestic Professional Surplus Lines 

Source: AM. Best data and research 

Exhibit 15 

U.S. DPSL *-Total Returns on Surplus vs. 

P/C Industry 

~~------------------------------

-DPSL" -P/Cinduslly 

'05 '06 '07 '08 '09 '10 '11 '12 '13 '14 

• Domestic Professional Surplus Lines 

Source: A.M. Best data and research 
97 


99799.056

U.S. Surplus Lines 

DPSt:s Growth Rate Less Than Total P/C Industry's 

As mentionc.'d earlier, much of the net growth experienced in the DPSL comJX>site in 2014 is 

connected to the new pooling arrangement of Lexington Insurance Company and AIG. (See Exhibit 

13.) However, the direct premium writings were unaffected by this arrangement and may serve as 

the best metric to determine growth throughout the sector. In 2014, the DPSL composite saw direct 

premium writings increase 3.3%, slightly trailing the overall P/C industry growth of 4.5%. This is the 

fourth straight year of DPW growth. 

Net premium written for the DPSL composite grew 31.3%, compared to the more modest 4.1% 

growth in the P/C industry. Without the support of Lexington's new pooling arrangement, A.M. Best 

estimates that NPW growth in the DPSL composite would have been flat, if not slightly negative. 

The evidence supporting this estimate is the higher growth rate of ceded pn..'miums (12.3% CAGR) 

compared to gross premiums (9.2% CAGR) over the past five years. As companit."i take advantage of 

less expensive reinsurance and continue to optimize their reinsurance placements, this trend likely 

will continue. It is important to note, however, that a similar trend is occurring throughout the entire 

PIC industry (3.6% and 3.9% five-year CAGR for gross and ceded premiums, respectively), though to a 

lesser degree. 

Balance Sheet Strength 

Ghrcn the uniquely hazardous risks that surplus lines companies insure, it is particularly important 

for these companies to maintain very strong balance sheets. Historically, these insurers have generally 

Exhibit 16 

U.S. DPSL*- Besrs Rating Distribution by Rating Unit vs. U.S. P/C Industry 

Best's Financial strength Rating (FSR) 

Level canz 

Total Fair & Below Ratings 

Total Rating Opinions 

Total NR Ratings 

Total Reported Rating Units 

'Domestic Professional Surplus Unes 

1 Domestic professional surplus lines ratings are as of August 11, 2015 

2 Total industry ratings distribution data is as of June 26, 2015 

Source: A.M. Best data and research 

Domestic Professional SUrplus lines 

0 

91 

4 

95 

100.00 

Total P/C Industry 

873 

970 

1,843 

4.58 

100.00 
98 


99799.057

U.S. Surplus Lines 

remainedverywellcapitalizedandhavc Exhibit 17 

continu<'d to maintain this strength through DPSL Peer Composite - Top 5 

2014, providing flexibility in the quickly-evolving Product Lines (2014) 

surplus lines sector. Ranked by direct premiums written. 

(USD Thousands) 

In 2014, the DPSL composite's policyholder 

surplus declined by 17'/o, despite generating 

$2.8 billion in net income. Though reinforced 

by unreali7.ed capital gains, bringing the 

composite's total return to $3.4 billion, these 

earnings were more than offset by $32 billion 

in dividend., to holding companies to support 

stockholder dividends and share buybacks. 

By comparison. in 2013 the P/C industry and 

DPSL composite both experienced turnaround 

years, generating a 68.7% and 120.4% increase in 

net income, respectively. Despite this immense 

growth in the DPSL composite, poliq'hokler's 

Rank Product Une 

1 other Uabillty 

2 Fire 

3 Alliedtlnes 

Commercial MultiPeril 

lnlani!Marine 

Subtotal of Top 5 

Total DPSt Peer 

Composite 

DPSt Peer 

Compasile 

Surplus Market Share 

tlnesDPW (%) 

7,333,953 46.1 

1,844,219 11.6 

1,565,946 9.8 

1,016,829 6.4 

948,412 6.0 

12,709,359 79.9 

15,909,089 100.0 

Note: "Other Uability" consists primarily of commercial 

occurrence and claims made general liability policies. 

Source: A.M. Best data and research 

surplus declined 1.2%. A.M. Best believes this speaks to the segment's balance sht.>et strength, as the_o;e 

companies have capitalized themselves well enough to pay dividends on their earnings. 

The DPSL composite continues to maintain generally lower leverage than the total P/C 

industry, with the exception of ceded leverage, which is slightly higher than the P/C industry 

average. Despite the marginal difference in ceded leverage, the use of affiliated reinsurers 

by the composite and total P/C industry arc comparable at 86.2% and 85.0% of premiums, 

respectively. The composite's net leverage of 2.0 times surplus registers a shade below the total 

industry average of 2.3 times surplus. Because of the DPSL composite's slightly higher ceded 

leverage of .8 times surplus compared to the industry average of .5 tixnes surplus, the two have 

equivalent gross leverage of 2-8 times surplus. 

Further supporting the composite's strong risk-adjusted capitalization is its conservative 

investment portfolio, with US. government and NAIC Class 1 bonds still constituting the vast 

majority of the portfolios. Likewise, durations consciously are being kept short in anticipation 

of an eventual rise in interest rates. 
99 


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Special Report U.S. Surplus Lines 

Section Ill: Regulation and Legislation 

One of the first acts of the 114th Congress was the passage of the Terrorism Risk Insurance 

Program Reauthorization Act of 2015 (TRIPRA) to reinstate the federal Terrorism Risk 

Insurance Program, which expired December 31, 2014. (Sec Exhibit 18.) President Obama 

signed TRIPRA into law on january 12, 2015, extending the federal terrorism program until 

December 31, 2020. Key revisions to prior provisions included: 

Federal share reduces from 85% to 80% (1% per year) 

Program trigger increases from GSD 100 million to USD 200 million (liSD 20 million per 

year) 

Industry's aggregate retention increases from current USD 275 billion to USD 37.5 billion 

(USD 2 billion per year) and Treasury's recoupment rate increases from 133% to 140%. 

Exhibit 18 

Federal Terrorism Backstop TlUPRA 

Terms 

Status 

Extension 

Co~Participation 

Deductible 

Trigger 

Recoupment 

Timeline for 

Certification 

(PreVious 

Program) 

NA 

15% 

$27.5billion 

$100 million 

133% 

Not Specified 

Source: AM. Best research 

Terrorism Risk Insurance 

TRIPRA Reauthorization Act of 2015 (H.R.2&, Current Program) 

Enacted into law 

5 yerus to December 31, 2020. 

Beginning on January 1, 2016, Co-Participation will increase 1% annually to 20% 

$21'.5 billion, increasing annually by $2 billi<ln to $37.5 billion in tho year 2020. 

$100 million, rising by $20 million to $200 million by 2020. 

Increase from 133% to 140% 

5years 

Program AeaU1horization Act (TR!PRA) of 20i5 and the Flood Insurance Reform Act, are measures that would reauthorize and 

modify existing federal programs. 

The TRIPRA extension also included the long*antk.ipatcd adoption of the National Association of 

Rt.'"gistcred Agent."> and Brokers (NARAB II). 1be insurance industry lobbied many years for NARAB 

in an effurt to streamline the licensing proce&'i for agents and brokers nationwide and eliminate 

burdensome rnultistate requirements while preserving important state regulatory authority and 

consumer protections in nonresident licensing. NARAB will not become operational until the 

President appoints a Board, which mtl~t be confirmed by the Senate. The Board will consist of eight 

r<·gulators and five imh.L<>try members, with three of the industry members representing the P&C 

industry. After establishing the Board, it is expected to be one to t\VO years before NARAB issues 

its first national license a.;; the Board is ta<;kcd with adopting rules and requirements for intemal 

operations and licensing. Although this is a federally created Roard, the states maintain their 

regulatory and disciplinary authority. 

The chart below summarizes recent federal and state legislative and regulatory proposals that 

could affect the surplus lines industry. 
100 


99799.059

2014-2015 Federal Legislation/ 

Regulation 

Bill/Sponsor 

Terrorism Risk Insurance Program 

Reauthorization Act (TRIPRA} 

H.R.26 

TRIP Reatllllorization Act of 2015 (Current Program) 

H.R. 26, nle II 

National Association of Registered Agents and Brokers 

Reform Act of 2015 (NARAB II) 

U.S. Surplus Lines 

Key Provisions & Actions 

Before September 11,2001, insurance coverage for losses as a result of a terrorist attack was 

included in general insurance. After the attacks, such coverage became very expensive, ff offered 

at all. COngress responded to this disruption by passing the Terrorism Risk Insurance Act of 2002, 

providing a government reinsurance backstop so commercial insurers would offer terrorism 

coverage. The lack of available insurance caused fears of a major impact on the economy, as 

companies would remain idle due to uncertainty. The act- extended and amended in 2005 and 

2007 and now known as the Terrorism Risk Insurance Program Reauthorization Act (TRIPRA)-

expired on December 31, 2014. 

On January 12,2015, President Obamasigned into law the Terrorism Risk Insurance Piogram 

Reatllllortzation.Actof 2015, which extends TRIP to December 31, 2020 and revises several 

features of the previous pr!l!Jtafll. 

Beginning January 1, 2016,The federal s!lare of payments will be reduced by 1% annually to 80% of insured losses from acts of terrorism. The trigger will increase 

stepwise from $100 million> iin~:~:'TJ:::/~ recoupment from insurers re 

threshold increases $2 billion annually, up 1o $37.5 billion, ~nd then by a specified formula, while the terrorism loss risk-spreading premium inc~ases from 1~% to 140%. flnal'Yt a recoupment in case uncompanealed losses surpass aggregate market retention totals Is now mandatory. 

Improvements to the program under this act lncludelhe requirement of bolhlhe Secretary of the Treasury and the Secretary of Homeland security to certify an "act ofTerrorism", tasking the 

Secretary of the Treasury to study arid, jssue final rul~ gov~mi'!Q the process for certifyiitg an act of terrorism, and assignment of the GAO to study federal 8SSeSllment and collection of upfront 

premiums and the creation of a capital reserve fund to house prepaid capital 

The Act calls lor lhe appointment of at least one member ro the Board of Governors of !he Federal Reserve, experienced with community banl<s having less than $10 billion in assets, the appointment of an advisory committee to facilitate the creation of non~governmental risk-sharing 

mechanisms to support private, market reinsurance capacity, specific congr~onat intormation 

and reporting requirements for participating Insurers, as wei~ as biennial study on the competitive 

challenges "facing small participating insurers. 

The National Association of Registered Agents and Brokers (NARAB) Reform Act of 2015 was 

enacted on January 12,2015 as part of the Terrorism Risk Insurance Program Reauthorization Act 

of 2015. NARAB will streamline agent and broker licensing for those operating on a multi-state 

basis. lt creates a nonprofit board governed by a panel of state insurance regulators and industry 

representatives to create rigorous standards and ethical requirements with a goal of applying 

licensing, continuing education and nonresident insurance producer standards on a multi-state 

basis. With a focus on nonresident licensing, agents or brokers applying for a national license through NAAAB will first be required to hold a current license in their home state, pass a national 

criminal background check and meet the criteria established by the Board, which shall include 

standards for personal qualifications, educational training and professional experience. 

The President. with ftle advice and consent of the u.s. Senate, wm appoint the 13 Board members 

(8 regulators and 5 industry members). Before becoming operational, the board must first 

establish the rules, requirements and procedures, as well as a national licensing clearinghouse. 

NARAB is not expected to become operational for a while, with most observers believing it will 

most likely happen in about two years. 

• Title II establishes NARAB without contingencies, prohibits NARAB from merging or operating as 

an insurer/producer, establishes presidential oversight of the NARAB, precludes Federal Funding of 

NARAB, and also establishes criteria for the board of directors, as well as operational parameters. 

The Act maintains NARAB's state regulatory jurisdiction regarding consumer protection, market 

conduct, and state disciplinary authority. 

• Title 11 grants NARAB disciplinary enforcement powers, and reQuires NARAB to establish 

procedures for multi state qualifications and oversight of non-NARAB insurance producers. 

• Title II dfrects NARAB to establish fairness and eligtbftity criteria and standards to join and 

maintain membership with NARAB, including criminal history record checks. 
101 


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Special Report 

Flood Insurance Reform Act of 2012 

The following bills were introduced in the 113th 

Congress in: 

Dc!Jlber 2013: 

H.R. 3370, by Rep. Michael Grimm (R·NY} 

March 2014: 

H.R. 4313, by David Jolly (R-Fl) 

May2014: 

June 2015: 

H.R 2901/S. 1679, by Rep. Dennis Ross {R·Fl), Rep. 

Patrick Murphy 

(0-Fl) and Sen. Dean Heller (R-NV) and Sen. Jon 

Tester (D·Ml] 

2014/2015 state Level Legislation/Regulation 

State legislation 

Kansas 

U.S. Surplus Lines 

• Title II prescribes procedures for authorized and required information sharing for Doth NARAB 

and its members, establishes authorized business practices based on NARAB membership, 

equivalent to a nonresident insurance producer license, establishes continuing education 

requirements for members by sources other than NARAB, as well as consumer complaint 

management. 

• Finally, Title U authorizes civil action by aggrieved individuals resulting from a NARAB decision or 

action, and minimally preempts state laws that regulate insurance producers. 

Concern about increased premium rates resulting from Biggert~Waters caused Congress to 

reconsider its implementation. The House and Senate ultimately both passed bills to reverse some 

of the changes brought about by Biggert~Waters. 

H.R.4313, the Rood Insurance Premium Parity Act of 2014, amended the National Flood Insurance 

Act of 1968 (NFIA) to prohibit the Administrator FEMA from estimating reduced {subsidized) risk 

premium rates for flood insurarn::e for residential property that is neither the primary residence 

of an individual (as under current law) nor the secondary residence of the property owner. n also 

directed FEMA to establish standards tor a residential property to qualify as a secondary residence 

eligible for subsidized risk flood insurance premium rates that require the owner to occupy the 

property for an appropriate minimum period of time each year, and limit subsidized risk premium 

rates to but a single property of the owner. H.R. 4313 sought to repeal the prohibition against 

estimating subsidized risk premium rates for business property (thus qualifying business property for such rates) and directed FEMA to refund directly to insureds any flood insurance premiums 

collected in excess of the rates required under this Act This legislation was not enacted. 

H.R.2901/S. 1679, the Flood Insurance Market Parity and Modernization Act will provide clarity to 

lenders that they may accept private flood insurance solutions from the surplus lines market, just as they had prior to the Biggert·Waters Act of 2012. 

The following are bills proposed or enacted at the state level regarding surplus lines: 

HB 2352 (formerty SB 155) has been signed by the Governor on June 5, 2015. This critical 

legislation eliminates the requirement to tax multistate risks at other states' rates. Effective 

January 1, 2016, all surplus lines premium where Kansas is the home state of the insured shall 

be taxed 100% at Kansas's rate of 6%. Kansas was one of seven states that continued to tax multistate risks at multiple states' rates, although they retained 100'/o of the tax. Kansas now joins 

the majority of states that have fully implemented the home state tax approach as envisioned 

under the NRRA. 

The legislation also rescinded Kansas's participation in the Surplus Unes Insurance Multi· 

Slate Compliance Compact (SLIMPACT). Having failed to reach 1he required ten member states, SliMPACT never became operational. 
102 


99799.061

Special Report 

Louisiana 

North Dakota 

Utah 

state Reporting Changes 

Arizona 

California 

Colorado 

Connecticut 

Delaware 

florida 

Illinois 

U.S. Surplus Lines 

HB 1146, signed by the Governor on March 20, 2015, eliminates the requirement to tax multistate 

risks at other states' rates. Effective June 1, 2015, all surplus lines premium where North Dakota 

is the home state of the insured shall be taxed 100% at North Dakota's rate of 1.75%. North 

Dakota was one of seven states that continued to tax multistate risks at multiple states' rates, 

although they retained lOOo/11 of the tax. North Dakota now joins the majority of states that have 

fully implemented the home state tax approach as envisioned under the NRRA. 

The legislation also rescinded North Dakota's participation in the Surplus Unes Insurance Multi~ 

State Compliance Compact (SUMPACl). Having failed to reach the required ten member states, 

SUMPACT never became operational. 

SB 2187, signed by the Governor on March 26, 2015, standardized the date for tax filings and 

payments. Prior law required taxes to be filed before May 1 and annual tax statements to be filed 

on or before April1. Effective June 1, 2015, both taxes and the annual tax statement will be filed 

by March 1. 

HB 2342 was passed to clarify the role and voting procedures of the Surplus Une Association.lt 

originally included language to clarify that for group insurance contracts, the home state is the 

state of incorporation or organization of the group, however, this provision was removed before 

passage. 

Bulletin No. 8·2.10: This bulletin was issued to clarify standards for taxation based upon changes 

that were made to the Colorado statute in 2012 to implement the NRRA. 

HB 40 was signed by the Governor on June 4, 2015 to remove the notarization requirement for 

diligent search broker affidavits. The documents are now considered written statements to be 

retained in the broker's files. 

SB 1573 would repeal provisions of 2014's SB 3324, which deleted language for the industrial 

insured exemption; however, the bill is still pending and it is considered unlikely to pass. The 

Department of Insurance issued a bulletin regarding the definition of industrial insured on June 18, 

2015. 
103 


99799.062

Special Report 

,Kansas 

Louisiana 

Massachusetts 

Michigan 

Minnesota 

MiSSISliiPpl 

Montana 

New York 

U.S. Surplus Lines 

Bulletin 2015-06: On July 15,2015 the Department of Insurance issued Bulletin 2015R06, also 

effective October 1, 2015, to provide guidance to the industry on how to report and file taxes 

under the both prior to and after the state withdraws from NIMA and the revised tax mechanism 

becomes effective. 

HB 214 creates a domestic surplus lines insurer (DSU). This law becomes effective on August 1, 

2015. 

SB 479 would establish hybrid personal injury protection policies as an option to fulfill required 

coverage in Massachusetts. The bill contemplates that nonadmitted insurers may also file such a 

form. The legislation is still pending. 

HB 177 takes effect on August 1, 2015 and will regulate self-service storage facilities and require 

them to obtain insurance that may be obtained through a surplus lines company. In May, the 

Minnesota Joint Underwriting Association attempted to assess surplus lines companies as part 

of their guaranty assessment but issued a stay after discussions with surplus lines industry trade 

associations. 

HB 94 was enacted on February 24th to allow natural disaster multHJeril insurance to be sold as surplus lines insurance; HB 240 was enacted on April 10th to remove prohibition of surplus lines 

policy fees, but limits the fee to $50 for personal lines and $100 for commercial lines. 

Insurance Reg. 41 (11 NYCRR Part 27): Titled the Proposed 14th Amendment to Insurance 

Regulation 41, this amendment applies to the excess line p!acemoots governing standards to 

conform to the Nonadmitted and Reinsurance Reform Act of 2010 (NRRA). On October 8, 2014, 

the New York Department of Financial Services (DFS} adopted their proposed amendments to 

Regulation 41. This regulation details the state's standards governing surplus lines placement in 

New York. The amendments incorporate changes in the standards related to the NRRA. 

January 29,2015 and prevents third parties from 

of Insurance (COl) that goes beyond simply demonstrating 

placed. 

AS 4616 was signed by the Governor on March 13 and requires Certificates of Insurance 

on policies for Personal Injury liability or Property Damage liability to be issued on a form promulgated by the insurer or a form approved by the Department. 
104 


99799.063

Nevada 

North Carolina 

Oklahoma 

Oregon 

Pennsylvania 

SOuth Dakola 

Tennessee 

Texas 

Vlrgin!a 

Washington 

Wisconsin 

U.S. Surplus Lines 

HB 262 authorized the creation of the North Carolina Stamping Office, making it the 15th stamping 

office in the nation. The legislation is expected to take effect within 60 days of adjournment, which 

is projected to be around July 26, 2015. 

SB 935 became effective on June 18 and exempts wet marine and transportation insurance from 

the requirement to obtain certificate of authority. The Division adopted O.A.R. 836-010~0026 in 

March which prohibits the use of discretionary clause language in insurance contracts for aft fines 

of insurance. 

HB 1088 became effective February 24th and amends prior law to allow surplus lines insurers to 

provide excess disability insurance. 

HB 409 would !lave required liquor licensees to carry liquor liability insurance. This type of 

insurance is not currently required. The bill would have allowed the coverage to be provided from 

an admitted or eligible surplus lines insurer but failed to pass out of the House. 

HB 686 related to insurance agents' ownership and use of informatiOn related to the expiration 

of property and casualty insurance policies. The proposed bill would have allowed an agent 

the exclusive ownership and use of an "expiration" direcUy related to an insurance application 

submitted by or an insurance policy written through that agent for the purpose of soliciting, selling 

or negotiating the renewal or sale of the coverage. The bill failed to pass out of committee. 

HB 2947 was sought to revise diligent search requirements. The bill was proposed as a 

compromise based on indications from the Deparbnent on their intent to revise regulations 

regarding the requirements. Ultimately the Department decided not to change the current 

procedure and the legislation was allowed to die. 

HB 1308 clarified that the portion of a risk located outside of the U.S. is exempt from surplus lines premium tax. The law has been signed by the Governor and betame effective July 24, 2015. 

Sources: Ubrary of Congress. National Association of Professional Surplus Lines Offices, Ltd. (NAPSLO) and individual states' legislative websites. 
105 


99799.064

U.S. Surplus Lines 

Update on the Nonadmitted and Reinsurance Reform Act of 2010 (NRRA) 

The NRRA was passed as a provision of the Dodd-Frank Wall Street Reform Act of 2010 (DFA). 

Some leaders, and other members of the 1 14th U.S. Congress, have stated that revisions and 

repeals of provisions of the DFA are a high priority, but the NRRA has not been identified as a 

specific target in these discussions. 

Similar to what was reported in the 2014 segment review, as of 2015, all states except 

Michigan, as well as the District of Columbia, have adopted specific NRRA implementation 

language. Both of those jurisdictions, however, fo1low the NRRA in practice and continue to 

comply with the NRRA's home state tax approach. The NRRA, which was passed by Congress 

in july 2010 and took effect one year later, resulted in the following reforms related to surplus 

lines/nonadmitted insurance: 

Umited the regulation and taxation of surplus lines/nonadmitted transactions to only one state 

- the home state of the insured, meaning the state where a commercial insured's principal place 

of business is lo<..ated, or if the insured i.,.;; an individual, the individual's state of residence. 

Established uniform, nationwide eligibility standards based on two sections of the National 

Association of insurance Commissioners' Nonadmitted Model Act for U.S.-domiciled 

nonadmitted insurers. The model act defines an digihle surplus line insurer a.~ heing: 

authorized in its state of domicile to write the coverage being offered on a nonadmitted 

basis and meeting specified capital and surplus standards. The NRRA also requires states to 

allow licensed surplus Jines brokers to place or procure insurance from any alien (non-lJ.S.-

ba.<ied nonadmitted insurer) that is on the NAIC Quarterly Listing of Alien Insurers. 

Created a nationwide definition of an exempt commercial purchaser (ECP), applicable in 

each state, for which a broker can access the surplus lines market without the need of a 

diligent search being performed. 

The simplification of the regulation and taxation of the surplus lint."S insurance transaction is the 

key focus, and many feel, the greatest success of the NRRA. The law called on each state to adopt 

nationwide, uniform requirements, forms and procedures for the reporting, payment, collection and 

al1ocation of surplus lines premium taxes and recogni7..cd that state.., may form compacts or other 

mechanisms to share surplus line..'i premium taxes paid to an insurer's home state. The home state 

provision has produced significant benefits for the surplll'i line.s industry by reducing the need for 

hrokers and insurers to comply with differing sets of rules, disck)SUres and requirements. Rffec'tive 

O<.:tobcr 1, 2015, 47 jurisdictions1

, representing 86% of the nationwide surplus lines premium, will 

retain 100% of the tax(..'S they collect, and effective January 1, 2016, 41 of those jurisdictions will tax 

100% of any multistate risk in accordance with the home state's tax r.atcs and rules. 

Also effective October 1, 2015, Louisiana wiil withdraw from the Non-Admitted Insurance 

Muiti~Statc Agreement (NIMA). In addition to retaining 100% of the taxes collected at their 

own premium tax rate, they will now also tax 100% of the surplus lines risk, regardless of 

where it resides. HB 259 was passed during the 2015 legislative session to effectuate these 

changes. In addition to the above-noted changes, the surplus lines premium tax rate will 

decrease from 5% to 4.85%. 

Only five jurisdictions- Florida, Puerto Rico. South Dakota, Utah and Wyoming- remain 

in NIMA and continue to share taxes as part of their membership. Tennessee currently 

participates as an associate member of NIMA and, as a result, requires surplus lines brokers 

'AK, AL, AR, AZ, CA, CO, CT. DC. DE, GA, Hl, !A, !D. IL IN. KS. KY, LA, MA, MD, ME, Ml, MN, MO, MS, MT. NC, NO, NE, NH, NJ. 

-~~~~m~~~mR~n~~w 
106 


99799.065

Special Report U.S. Surplus Lines 

to provide multistatc allocation information to NIMA's S1..1rplus Lines Clearinghouse (SLC). 

Tennessee's associate membership expires on October 1, 2015, and the state will need to 

decide if it wishes to join NIMA as a full member. Wisconsin participated in the one-year 

associate membership but on June 25, 2015, declined to join a.'i a full member. 

There arc five non-NIMA jurisdictions that cominue to tax multistate risks at multiple 

jurisdictions' rates, although they retain 100% of the tax. These jurisdictions include Hawaii, 

Massachusetts, Ncbra."ika, New Hampshire and Vermont. Prior to the 2015 legislative session, 

Kansas and North Dakota also required brokers to collect surplus lines premium taxes based 

on an allocation of risk and at other jurisdictions' rates; however. as of June 1, 2015, North 

Dakota eliminated this requirement and implemented the 100% home state approach such that 

when North Dakota is the home state, taxes are calculated and remitted based on its L75% tax 

rate. Kansas passed similar legislation but it does not become effective until january 1. 2016 

so brokers must continue, until that time, to calculate the tax based on the premium tax rate 

where the risk resides. 

Along with NIMA, the Surplus Lines Insurance Multi-State Compliance Compact (SLIMP ACT) 

was the other tax-sharing model put forth by various jurisdictions in response to the NRRA. 

Nine jurisdictions initially adopted SUMP ACT; however, it failed to become operational as 

it never secured the required tenth member. Three states have withdrawn from SLIMPACT, 

including Kansas, North Dakota and Tennessee, leaving only six states in the non-operation 

agreement (Alabama, Indiana, Kentucky, New Mexico, Rhode Island and Vermont). No 

SLIMP ACT states are pushing to make the compact operational and it is believed more states 

will eventually eliminate the law from their statutes and simply continue to follow the home 

state approach they already usc. 

The NRRA also addressed insurer eligibility and provided clear criteria for determining an 

insurer's eligibility to provide surplus Hoes insurance in each state. While some states have 

eliminated many pre-NRRA eligibility requirements such as "white lists," a number of states 

continue to impose eligibility requirements beyond those outlined in the NRRA. Since the 

2011 report, no states have taken legislative or regulatory action to eliminate these additional 

requirements. 

The NAIC's International Insurers Department Quarterly Listing of Alien Insurers has become 

the accepted regulatory source for establishing eligibility for alien (non-U.S.) insurers that 

appear on the list as required by the NRRA. Tht~ list is maintained by the National Association 

of Insurance Commissioners (NAIC), anJ provides brokers, exempt commercial purchasers, 

and insureds with assurance concerning the eligibility of non-U.S. insurers being utilized to 

quote or place excess and surplus lines insurance business. 

On January 1, 201S, the criteria used to qualify as an ECP were required by the NRRA to be 

adjusted based on the Consumer Price Index (CPI). The NAIC subsequently recommended to 

states that the ECP criteria be adjusted as follows: 

Criteria 

Net Worth 

Annual Revenues 

Annual Budgeted Expenditures 

Pre-2015 

IJSD 20,000,000 

USD 50,000,000 

USD 30,000,000 

Post-2015 

USD 22,040,000 

USD 55,100,000 

USD 33,060,000 

It was not the intent of the NRRA to have any effect on prices or the availability of coverage. 

Based on the information in the 2014 Government Accountability Office report on the effects 

of the NRRA, market participants have stated that the NRRA has indeed had little, if any, effect 
107 


99799.066

Report U.S. 

on the prices or availability of coverage. According to the ~urplus lines insurers contacted by 

the GAO. the NRRA has caused little noticeable shifting in coverage between the admitted and 

surplus lines markets, which, again, was not the intent of the legislation. 

Federal Flood Insurance Legislation 

In June of 2015, lawmakers introduced a bipartisan measure, the Flood Insurance Market Parity 

and Modernization Act, designed to clarify provisions of the National Flood Insurance Program 

(NFIP) to ensure private market flood insurance solutions arc accepted by lenders. The law 

would clarify that lenders may accept coverage either alternatively or in addition to that made 

available through the NFIP in order to meet the mandatory purchase requirements of the 

National Flood Insurance Act in 42 C.S.C.A §4012a. This legislation is important to surplus lines 

insurers in order to preserve the coverages they historically provided, as well as to modernize 

the definition of private flood insurance to reflect the "eligible insurer" and "home state'' 

terminology adopted in federal law through the NRRA. 

The bipartisan bill was introduced by Representatives Dennis Ross (R-FL) and Patrick Murphy 

(D-FL) and Senators ]on Tester (D-MT) and Dean Heller (R-NV). A similar bill was introduced 

last year, but failed to pass. 

Lines 
108 


99799.067

Section IV - Current Distribution 

Trends 

U.S. Surplus Lines 

Surplus Jines coverage solutions emerge when the standard market cannot provide needed 

coverages. As new exposures arise, the surplus lines market often provldcs the best, or 

sometimes the only, solution for retail producers and insureds seeking coverage for these 

exposures. It was only a few years ago that drones, 3~0 printers, and cybcr risks were not on 

anyone's radar screen. In 2015, they arc at the forefront of people's minds, including surplus 

lines professionals. Sharing technologies, such as Uber, and driverless cars can be added to the 

list of newly emerging risks as well. 

Opportunities 

With new technologies come new risks, which present an opportunity to provide coverage 

for those who are looking to protect themselves against these risks. The planned usage of 

small unmanned aerial vehicles or drones is an example of technology presenting new and 

unique risks. Drones are being used for property inspections and inspections by insurance 

claim adjusters, imaging and surveillance applications in law enforcement, search and rescue 

attempts, and catastrophe response efforts, often obtaining detailed photographs of terrain, 

homes and people. Risks posed by the use of commercial drones include population safety, 

property damage, and both security and privacy concerns. It is still to be determined whether 

the benefits of increased commercial usage of drones are worth th(~ associated risks. Another 

obvious problem is the already crowded U.S. airspace. From an insurance perspective, surplus 

lines companies may contribute positively to the resolution of issues related to drones by 

evaluating the risks and offering solutions to those looking to implement drone technology. 

The dawn of 3-D printing is another area that presents opportunities, as well as potential 

pitfalls. For example, prosthetics can be developed using this technology, and can do wonders 

for so many people but there also is rhe risk that they will not work as intended. Who should 

bear that risk and how should coverage be implemented? In the case of using this technology 

to develop weapons, specifically non-metallic weapons, there arc risks associated with the 

ability to get non-metallic weapons past metal detectors, creating considerable safety concerns. 

How such risks arc protected against and who bears that risk are issues and questions that 

still require deep consideration and possibly a few lawsuits to provide clarity. 

Cyhcr threats are a growing loss exposure as welL With mobile devices, information is now 

at our fingertips 24/7. This may include personal information, medical data, store purchases, 

bank account information and other confidential material, all of which are enticing targets for 

cyber criminals. There have been numerous reports of personal data being compromised and 

this drives up the cost of doing business. Many companies that have previously chosen not to 

purchase cybcr risk insurance are now weighing its importance. Through 2014, approximately 

20% of large enterprises carried cyber risk coverage, with an even lower adoption rate among 

medium- and small-sized enterprises. Cybersecurity threats show no signs of abating; if 

anything, the opposite is true, Protection against cyber threats is likely to be an increased area 

of focus, resulting in a significant opportunity that, in terms of insurance, could only be met by 

surplus lines insurers given the rapidly chang1ng nature and scope of cyber exposures and the 

state form filing process that admitted insurers are encumbered with. Surplus lines insurers 

can meet the needs of insureds where standard coverage is insufficient or nonexistent. 

Chnllenf!.es 

Competition, consolidation, and pricing arc among the primary concerns of producers in 

the surplus lines space. Surplus lines intermediaries find that some producers are placing 
109 


99799.068

traditionally surplus lines risks in the admitted market. Not surprisingly, current market 

pricing generally is considered soft to weak due to overcapacity. 

,\:4RAB /1 

U.S. Surplus Lines 

The National Association of Registered Agents and Brokers Reform Act of 2015 (NARAB II) was 

signed into law by President Obama in January 2015 as part of the Terrorism Risk Insurance 

Program Reauthorization Act of 2015. While it will take a number of years for this to be 

implemented, the market view is that NARAB II wiJl make it easier for agents and brokers to 

conduct business and make the licensing process more streamlined. Productivity is expected 

to improve and the cost of business and compliance to decrease. NARAB n also aims to make it 

easier for insurers doing business in multiple states. 

Business 11·ends 

It's a mixed bag as far as whether surplus lines business is growing or not. Some companies 

are experiencing slight, more deliberate growth. Other entities report opportunities for acrossthe-board growth through varied lines of business. Some surplus lines insurers report feeling 

squeezed as standard lines insurers write more business that was formerly written mainly in 

the surplus lines market. Stili others see flat growth prospects over the near-term that they 

expect will remain as such, absent a major catastrophe. 

Consolidation 

The general feeling is that consolidation has only had a limited impact among surplus lines 

producers, but there is a bigger concern that consolidation will adversely impact existing 

relationships and response time. There also is concern that fewer alternatives will be available 

and that quality will give way to price in the decision-making process. 

Tec!Jnology 

A major tKnefit of effective technology is that wh<:n well-implemented, it makes it easier 

for producers to focus on their main goals. Technology also allows for greater mining of 

data. Ideally, small businesses benefit from new technology by simplifying tasks while 

larger companies benefit from greater efficiency. It is very important for future success of 

surplus lines insurers that as technology changes, they arc able to keep pace. Insureds will 

undoubtedly be using even more advanced technologies in the years ahead. Current employees 

also may need to be trained to use the tools newly available. Depending on the priorities of the 

insurer, there may be a significant learning curve involved in becoming an expert at using new 

tools and technologies effectively. 

hwestmenl in Seu· Pt·uducls 

The development of new products and programs remains important to surplus lines insurers. 

One of the hallmarks of the surplus lines insurance market is the development of new 

insurance solutions to address new or emerging risks, or to provide improved covet.tge for 

known risks. New products and programs continue being developed and launched. Some 

insurers, however, value the importance of investing in one's core products and expanding 

into other areas in deliberate, circumspect fashion, as opportunities arise. 
110 


99799.069

U.S. Surplus Lines 

Section V - Impairment Trends 

Following a drop in 2013 to the lowest levels since 2007, financial impairments in the O.S. admitted 

property/casualty (P/C) industry dropped a little further in 2014, falling to almost one-t!Urd of tl1e 2012 

impainnent count. Year-over-year, the impairment count was down 20% in 2014 and 44% in 2013. 

For the 11th consecutive year, the surplus lines indu.<rrry recorded no .fi.n.andal impairments for the year. 

PiC Industry Impairment Experience 

The 12 known impairments in 2014 (see Exhibit 19), and 15 in 2013, compared with the 25 in 

2012, have been more in line with figures seen consistently during the 1970's. A.M. Best assigned 

ratings to four and reported on seven of the 12 impairments in 2014. Of the companies that were 

rated, none carried a Secure rating in the year of impairment. 

It is possible that additional financial impainnent'!' for 2014 and prior years could emerge. TI1ere could 

be a lag in the reporting of impainnents due to the increasing use of confidential actions by insurance 

regulators, who are reluctant to publicly disclose impairments until all possible avenues to rehabilitate 

or .find a buyer for troubled immrers have been exhausted. A.M. Best has found that there is an average 

1.5Hyear lag between a confidential regulatory action and public disclosure of the impairment, u..<.,ually 

the time between supervi..,ion and liquidation - if the confidential action ever becomes public at aU. 

Exhibit 19 The financial impairment frequency (fll<) is 

calculated using the number of companies U.S. Property/Casualty -

Annual Impairment Count, 

Admitted Companies vs. Surplus Lines 

70 

60 

Source: A.M. Best data and research. 

Exhibit 20 

.. Admitted .. surplus Unes 

U.S. Property/Casualty -

Financial Impairment Frequency, 

Admmed vs. Surplus Lines 3.5 

S.O -PIC Industry 

~2.5 

Q:2.0 

Source: AM. Best data and research, Bes!Unk Best's Statement File- P/C, U.S. 

that become impaired in a given year, divided 

by the number of companies operating in 

the insurance market in that year. A.M. Rest 

believes the FIF is a more accurate indicator of 

impairment trends than a simple count. The 

PIC industry's 2014 FIF was 0.39, below the 

industry's historical average of0.91. Reviewing 

the most recent ten-ycar-tcnn, the 2011 FIF 

of 1.06 seems to have marked the peak for 

impairment frequency, after the 2007-2010 softmarket trough and the 2007-2009 recession. 

A.M. Best ha<> found that, historically, increases 

in the insurance industry's FIF correlate 

strongly with preceding negative operating 

environments marked by events such as stock 

market booms and busts; economic recessions; 

and extraordinary catastrophe losses that 

typically furce the end of soft markets (see 

Exhibits 20 and 21). Evi<k,nce of these trends 

resides in the increased FIF rates during the 

periods 1988 to 1993 and 2000 to 2003. 

Surplus Lines Impairment Experience 

Despite the absence of surplus lines financial 

impairments from 2004-2014, the industry's 

failure frequency rate of 0.86% from 1977 to 

2014 remains close to the admitted company 

average of0.91%. This reflects the surplus 
111 


99799.070

U.S. Surplus Lines 

Exhibit 21 

U.S. Property/Casualty - Financially Impaired Companies Count & 

Frequency Industry vs. Surplus Lines. 

financially Impaired Companies (FIC 

Year P/C Industry Surplus Lines 

1977 13 1 

1978 12 0.00 0.41 

1979 19 19 0.62 0.00 0.66 

1980 8 0.27 0.00 0.28 

1981 16 16 0.49 0.00 0.55 

1982 13 12 o.42 0.52 0.41 

1983 14 12 0.44 0.98 0.40 

1984 34 34 1.13 0.00 1.14 

1985 54 51 1.54 1.52 1.54 

1986 30 28 0.95 1.00 0.94 

1987 33 32 1.04 0.54 1.07 

1988 49 1 48 1.49 0.53 1.55 

1989 48 ll' 48 1.45 0.00 1.54 

1990 55 3 52 1.00 1.54 1.67 

1991 59 55 1.77 1.99 1.76 

1992 60 54 1.72 3.03 1.94 

1993 42 41 1.21 0.52 1.25 

1994 28 .26 0.1!0 1.08 0.79 

1995 16 15 0.46 0.56 0.45 

1998 13 11 0.38 1.15 0.34 

1997 32 31 0.92 0.58 0.94 

11!08 28 16 0.62 2.29 0.53 

1999 21 18 0.66 0.60 

2000 48 46 1.53 1.56 

2001 50 44 1.62 3.03 1.52 

2002 47 43 1.54 2.07 1.50 

2003 37 32 1.21 2.94 1.11 

2004 20 20 0.94 0.00 0.68 

2005 14 14 0.45 0.00 0.47 

2006 18 18 0.56 0.00 0.60 

2007 6 0.19 0.00 0.20 

2008 17 17 0,53 0.00 0.56 

2009 22 22 0.66 0.00 0.69 

2010 23 23 0.68 0.00 0.71 

2011 35 35 1.06 0.00 1.11 

2012 25 25 0.76 0.00 0.81 

2013 15 15 0.46 0.00 0.49 

0.39 0.00 0.40 

0.88 0.79 0.88 

1 Includes alternative markets. 

2 Failure frnquencies are annualized rates. 

3 1989 figures have been adjusted from previous reports to exclUde 7 U.K.-domiciled compames. 

Source: A.M. Best data and research 

lines industry's significantly higher impairment frequencies during certain periods, in particular. 

1992, 1998, 1999 and 2001-2003. (See Exhibit 21.) Since 2003. with each year that the surplus 

Jines industry has experienced no financial impairments, the historical impairment frequencies for 

admitted and surplus lines companies have been steadily converging. The failure frequency rate 

is calculated using the number of companies that become insolvent in a given year, divided by the 

numberof companies operating in the insurance market in that year. 
112 


99799.071

U.S. Surplus Lines 

Exhibit 22 

U.S. Property/Casualty - Financial Impairment Frequency vs. Industry 

Combined Ratio* 130 

125 

120 "' 

~~~ I 105 -

~~ 

:l ~ 60 

•Combined ratios are after policyholders' dividends. A combined ratio below 100 indicates an underwriting profit; above 100, an 

underwriting loss. 

Source: A.M. Best data and research 

The primary reason for the absence of surplus lines insurer failures in the mid-2000's related 

primarily to the surplus lines industry's improved underwriting performance, driven by 

demonstrated underwriting discipline and adequate pricing, overall. Investments in advanced 

technologies and improved systems, along with better management reporting and more robust 

oversight have also helped the impairments to trend positively for surplus lines insurers. 

Beginning in 2007, however, underwriting profitability and operating performance began 

a period of deterioration that lasted through 2012, as indicated by a rise in the surplus lines 

industry's combined ratio (see Exhibit 23), before improvements were recorded in 2013 and 

again in 2014. Fo.r that reason, the absence of impairments in the late 2000's and early 2010's 

was initially more related to the overall capitalization of surplus Jines companies than to 

underwriting performance. The improvement in profitability in the most recent years should 

also contribute to the likelihood that the recent impairment 

trend for surplus lines companies remains favorable. 

A.M. Best remains optimistic, but guardedly so, about the low 

trend of surplus lines impairments "With the offsetting factors 

specifically related to sluggish or, in some cases, weak economic 

conditions that have prolonged the soft market and contributed 

to pressure on combined ratios. The persistent low interest rate 

environment limits the ability of surplus lines (and admitted) 

companies to potentially with~"tand or offset any deficiencies in 

pricing or inadequate risk selection with investment returns and 

capital market gains. 

Causes and Characteristics of Financial Impairments 

The causes and characteristics of financial impairments have 

generally remained consistent for both the surplus lines and 

admitted P/C industries during the period that A.M. Best has 

examined impairment data, most recently updated in the 

special report, U.S. Property/Casualty - Impairment Review 

(August 2015). 

Deficient loss reserves/inadequate pricing and rapid gmwth 

have accounted for the largest portion of total impairment 

among surplus lines and admitted companies. (See 

Exhibits 24 and 25.) These two categories in combination 

Exhibit 23 

U.S. DPSL * Composite -

Financial Impairment Frequency 

& Combined Ratio Year FIF Combined Ratio 

1997 0.58 93.8 

1998 1.72 98.5 

199!1 1.70 99.8 

2000 1.05 105.0 

2001 3.54 105.3 

2002 2.07 93.0 

2603 2.64 92.2 

2004 0.00 93.5 

2005 0.00 93.2 

2006 0.00 79.4 

2007 0.00 76.1 

2008 0.00 93.6 

2009 0.00 93.1 

2010 0.00 100.5 

2011 0.00 105.1 

2012 0.00 110.5 

2013 o.oo 92.4 

2014 0.00 88.8 

•oomestk: Professional Surplus UnBS 

Source: A.M. Best data and research 
113 


99799.072

Exhibit 24 

U.S. Property/Casualty Admitted -

Primary Causes of Financial Impairment, 

1977-2014 

Reinsurance 

3.0% 

Note: Exhibit %based on companies where the cause of impairment was identified. 

Source: A.M. Best data and research 

Exhibit 25 

U.S. Surplus Unes - Primary Causes of 

Financial Impairment, 1977-2014 

U.S. Surplus Lines 

accounted for 38.0% of surplus 

lines impairments and 58.6% 

of admitted P/C company 

impairments. 

The second-highest cause of 

surplus lines impairments 

has been affiliate problems at 

20%, vs. 7.6% for admitted P/C 

companies. Some surplus lines 

companies became impaired 

when their parent companies, 

which were engaged primarily 

in the admitted market, were 

declared insolvent. Some of 

these past instances of surplus 

lines failures highlight the 

extent to which poorly managed 

operations of a parent company 

can impact its surplus lines 

affiliates. 

Alleged fraud was the next 

highest cause of impairment 

among surplus lines companies 

at 14.0% vs. 6.9% for admitted 

companies. All other causes of 

impairment for surplus Jines and 

admitted insurers accounted for 

28% and 26.9%, respectively, 

of the identified impediments. 

A.M. Best believes that except 

--•111111!1111111111 Rapi~.g~wth for those insolvencies directly 

in business 

2.0% 

I Miscellaneous 4.00/u 

'--lrrvesfme,n1 problems 

(overstated assets) 10.0% 

Note; Exhibit% based on companies where the cause of impaitment was identified. 

Source: A.M. Best data. and research 

related to catastrophe losses, 

all insolvencies are related to 

some form of mismanagement. 

In many instances, companies 

that become impaired because 

of catastrophe losses tend to 

be those concentrated in a 

particular line of business or 

geographic area, and have been 

financially weakened by years of 

operating losses. 

Looking at impairments by line of business, the "other liability" category- encompassing 

directors and officers (0&0), errors and omissions (E&O), general liability, contractual 

liability, and excess umbrella- accounted tOr the highest percentage of surplus lines 

impairments over the course of time that A.M. Best has studied P/C impairment trends. 

The workers' compensation and commercial automobile lines caused the second and third 

highest number of impairments, respectively. Workers' compensation is not a major line 

of coverage for surplus lines insurers but a surplus lines insurer's impairment could result 
114 


99799.073

U.S. Surplus Lines 

from adverse workers' compensation experience of one or more admitted insurers within 

the same group of companies. 

Conclusion 

Over the span of time that A.M. Best has studied financial impairments, a strong correlation 

has been found between the insurance industry's financial impairment frequency and negative 

operating environments marked by events such as high catastrophe losses; severe downturns 

in the stock market; or economic recessions. Most often, the triggers for a marked increase in 

impairments have been sudden, major events that pushed companies already made vulnerable 

by negative operating performance or mismanagement beyond the brink, and into financial 

impairment 

supervision and/or in Jiquiilatiort. 
115 


99799.074

Report 

Section VI - Fundamentals of 

The Surplus Lines Market 

U.S. Surplus Lines 

The U.S. surplus lines market (also called the nonadmitted market) functions as a supplemental 

market for insuring risks that are not acceptable to the standard Jnsurance market (also called the 

admitted market). 

The insurers in the surplus lines market are property/casualty companies that distribute their 

products to consumers through surplus lines producers. Consumers that are unable to secure 

insurance coverJ.gc from standard (admitted) insurers also have the option of self-insuring or seeking 

coverage in the altem<ttive risk transfer (ARD market. 

The risks insured in the surplu.s lines market are u.•mally classified as one of the foiJowing: 

• Distressed risks - char-J.cterized by unfavor.tble attributes, such a"i a history of frequent losses or 

the potential for cata."itrophic losses that make them unacceptable to admitted insurers. Examples 

of distr(_"SSCd risks include a vacant building located in an area that experiences freqU(."11l crime 

losses, a shopping mall with frequent liability claims or a manufacturer of explo..<>ivcs. 

• Unique ric;;ks - so specialized or unusual that admitted in.!.urers are unwilling or unprepared to 

insure them. An example of a unique risk is a medk.~.d device manufacturer that needs product 

liability coverage while a new product is in clinical trials. 

• High-capacity ri~ks - requiring high insurance limits that may exceed tht~ capacity of the 

standard market. An example of a high-capacity risk is a chemical plant that could become legally 

liable for hundreds of millions of dollars in damages if a toxic chemical were to escape in large 

quantities. 

• New or emerging risks requiring special underwriting expertise and flexibility that the 

surplu..<> lines market can provide. Examples of new or emerging risks that are in need of property 

and/or liability cover&ge include the nonmilitary use of unmanned aircraft systems (drones) and 

marijuana businesses in states that have legalized the medical or recreational Q"\C of marijuana. 

The surplus lines market has histori<..ally been an innovator of new kinds of insur.ance coverage 

designed to meet emerging: market n(.-eds, Examplc.'i of policies that were originated by surplus 

lin<."S carriers include cyber risk, environmental impairment liability, employment practices liability, 

directors and officers liability, and excess and umbrella liability. These types of policies can now be 

obtain(!d in either the ~"tandard (admitted) insur:am·e market or the surplus lines market, depending 

on the characteristics of the JYJrtlcular risk. 

The majority of surplus lines business consists of commercial line$ insurance, although some personal 

lines coverage, such as homeowners insurance in (_'afa5trophc-prone areas, is also written on a 

nonadmitted basis .. 

Surplus lines insurers are referred to as nonadmitted insurers because they are not licensed (admitted) 

in the state where the insured's principal place of business is loc-ated or where the insured resides. 

This state is known as "the insured's home state" and is the state that is responsible by federal law for 

oversight and regulation of the surplus lines transaction. Every US. jurisdiction has a surplus Jines law 

that pcrmil., specially licensed intermediaries (surplus lines brokers/licensees) to "'export" risks that 

cannot be placed in the standard market to eligible surplus lines (nonadmitted) insurers. 

Although not a licensed insurer in the "home state of the insured," each surplus lines insurer is 

licensed in its state or country of domicile and is regulated for solvency by that jurisdiction. This is the 

S."lme approach used by the state-ba.<;ed insurance regulatory system in the United States to assure the 
116 


99799.075

U.S. Surplus Lines 

financial stability of licensed or admitted insurers. As a nonadmitted carrier, a surplus lines insurer 

is not subject to the rate and form regulations of the insun.._xl's home state and is therefore free to 

use policy fomls and rates that are appropriate for the risks it accepts. State n..wlation of licensed 

or admitted insurers, in c-ontra .. •:•t, includes the oversight of insuran<..-e polk]' r-Jtcs and furms. The 

purpose of this special regulatory approach to surplus lines insurers is to ensure that the surplus 

lines market provides an open and flexible marketplace for insureds that arc unable to fulfill thdr 

insurance rcquircmcnL'i in the state's admitted or standard market. 

When the insur-.tnce market or capacity becomes restricted am1 market conditions "harden," standard 

market caniers typically reduce their appetites for some risks or lines of insurance, and business flows 

into the surplus lines market. Even under nom1a1 market conditions or when the market is considered 

"soft," there are still many distressed, unique, high..capacity and new or emerging risks that require 

surplus lines trcaunent. In fulfilling the role of insuring risks that the admitted mark<:t cannot or will 

not intollre, the surplus lines market operates a_<; a ~safety valve" for the insurance marketplace. 

The minimum capitalization requirement for surplu<:> lines insurers is generally higher in each state 

than it is for admitted insurers. This enhanced capital standard provides grc'J.ter protection for 

policyholders insured by surplus Iint.'"S companies, since state guaF.mty fund protection, provided to 

policyholders of admitted insurers that b<~come insolvent, is not generally available to surplus lines 

insurcd"i. (See Sedion H for current finandaJ trcnQ<;. in the surplus lines market). 

Market Cycles 

In general, the condition of the admitted insurance market affects the state of the surplus lines 

market (See Section l for the latest surplus lines market trend<:>). This impact, on occasion, <..~an be 

significant When admitted market conditions harden or become more difficult, a sizable amount 

of business flows from the admitted market to the surplus line..;; mark(."!. During a hard market, 

underwriters tend to become more conservative and restrictive, examining loss exposures more 

carefully to determine how a particular risk under consideration can be written at a profit 

In these circumstances, standard market carriers only insure those risks that they are most 

comfortable in a.<;suming and tend to avoid tisks that are more complex or with which they have Uttfe 

or no experience. 

As the market cycle progresses, competition heal<; up and market conditions in the admitK"Cl market 

"soften" as producers and insurers strive to maintain market share by reducing rates, expanding 

covc._:ragc and offering additional services at the ~-xpense of profit m~ins. During this soft market 

pha._.;;e of the cycle, consumers' bargaining power increases significantly, caw;ing rates to drop and 

coverage limitations or exclusions to be relaxed. When tht."SC circum:.-rances occur, business begins to 

return to the admitted market. 

Over time, competitive pricing pressures erode admitted market capacity as margins deteriorate 

to unprofitable levels. This again leads to a hardening of the market, and the cycle continues. 

Industry Participants 

For the purposes of this report, A.M. Best has categorized surplus lines insurers into three 

broad segments: 

Domestic professional companies: This largest segment is represented by U.S.~domiciied 

insurers that write 50% or more of their total premium on a nonadmitted basis. 

Domestic specialty companies: U.S.-domiciled insurers that operate to some extent on a 

nonadmitted basis but whose direct nonadmitted premium writings amount to less than 

50% of their total direct premiums written. 
117 


99799.076

U.S. Surplus Lines 

Regulated aliens (includin~ Uoyd's): To qualify as a regulated alien, insurers must file financial 

statements, copies of auditors' reports, the names of their lJ.S. attorneys or other representatives 

and details of their US. trust accounts with the International Insurers Department (liD) of the 

National Association of Insurance Commissioners (NAIC). Additionally, regulated aliens must 

fulfill criteria established by the HD concerning capital and/or surplus, reputation of financial 

integrity, and underwriting and claims practices. On a quarterly basis, the NAIC publishes its 

Quarterly Listing of Alien Insurers, which lists alien insurers that meet its criteria. 

As a result of the Nonadmitted and Reinsurance Reform Act (NRRA) of 2010, which wa._.., enacted as 

part of the Dodd*Fr.:tnk Wall Street Reform and Consumer Protection Act, a state may not prohibit 

a surplus lines broker from placing nonadmitted (surplus line~) insurance with or procuring such 

insurance from a nonadmitted insurer listed on the NAIC Quarterly Listing of Alien Insurers. 

Distribution 

Retail producers, surplus lines intermediaries and program managers arc the primary distributors 

for surplus lint~s insurers. All of these entities play an important role in helping consumers find 

insurance coverage that is unavailable in the standard market. (Sec Section IV for a description of 

current surplus lines distribution issues). 

For purposes of this special report, the types of organizations within the surplus lines distribution 

system arc defined as follows: 

Retail producers can be either agents that represent the insurer or brokers that represent the 

insured. 

Surplus Jines intermediaries <..-an operate as wholesale brokers, managing general agents (MGAs), 

underwriting managers or Lloyd's coverholders or open market correspondents (OMCs). 

Program managers are managers of specialty or nicht~ insurance products and market to 

retailers, wholesalers or both. 

Surplus lines intermediaries arc liL--cnscd in the states where the insured or risk is located and act 

as intermediaries between retail producers and surplus lines jnsurers. Typically, a surplus lines 

intermediary provides the retail producer and the insured with access to the surplus fines market 

when the admitted market cannot provide coverage or the risk otherwise qualities for export. 

The basic difference between wholesale brokers and MGAs is that MGAs are authorized to underwrite 

and bind coverage on behalf of the surph.L'ilincs insurer through binding authority agreements. 

Wholesale brokers only have the authority to submit businC..'-'i to surplus lines insurers. The insurers 

then underwrite, quote and, if the risk is considered to be acceptable, bind the risk In addition, some 

MGAs have claims-handling responsibilities and may be involved in the placement of reinsurance. 

Lloyd's covcrholders are authorized to bind coverage on behalf of underwriting syndicates at Lloyd's. 

OMCs are approved for placing coverage at JJoyd's either directly or through a Lloyd's broker. 

Surplus lines laws generally require that a "diligent search" of the admitted market be petfomK'd 

before a risk can be exported to a surplus lines in~urer. In general, the diligent-search requirement, 

which a...-;.sures the admitted market the first opportunity to insure the ri"ik, rcquirr.s that three 

declinations from admitted insurers be obtained before the risk can be placed in the surplus lines 

market. 

In certain states, specified 1 ypcs of risks can be placed in the surplus lines market without the 

diligent search requirement being fulfilled. Many states have created an "export list," which sets 

forth types of risks for which the lnsur.mce commissioner has determined there is little or no 
118 


99799.077

Special U.S. Surplus Lines 

cover.agc available in the state's admitted market. A type of risk that appears on the export list can 

be exported, without a diligent search, to an eligible surplus lines insurer. Also, a few states have 

commercial lines deregulation laws that allow for "automatic export" waivers, giving qualifying 

commercial buyers and their brokers or intermediaries immediate access to the surplus lines 

market, as well as access to a deregulated admitted market, without a diligent search. 

In a surplus lines tr.tnsaction, the surplus lines intermediary is generally responsible for: 

• Filing an affidavit ;tffi.rming that a diligent search ha..-; been performed, when it is required; 

• Maintaining the records relating to the transaction; and 

• Collecting premium taxes and remitting them to the insured's home state. 

In addition to facilitating the surplus lines placement, the surplus Jines intermediary provides a 

number of services, which include: 

• Technical expertise about the risk to be insured; 

• Extensive insurance product and market knowledge; 

• Ability to respond quickly to changing market conditions; and 

• Access to eligible surplus lines insurers. 

Licensing and Compliance 

In a surplus lines transaction, the insured's home state exercises the greatest degree of regulatory 

oversight, and the onus of regulatory compliance is placed on the surplus lines broker or licensee, 

which is the regulated entity in the transaction. 

In addition to being a licensed (resident or nonresident) agent or broker, a surplus lines broker or 

licensee must do the following: 

In many states, pass a written surplus lines licensing examination to secure a resident license; 

Collect the state's surplus lines premium taxcz;;; 

Pay an annual licensing fcc; and 

Determine whether the risk meets all the requirements tOr placement with a surplus lines 

insurer. 

Further, the surplus lines broker or licensee is responsible tOr determining whether the 

nonadmitted insurer insuring the risk meet_<.; the insured's home state eligibility requirements. A 

broker or licensee may be held liable for payment of claims when a risk is placed with a surplus 

lines insurer not authorized to receive the risk, or with one that is financially unsound when the 

risk is bound. However, depending on state law, there may he no cause of action against a broker, 

under a negligence standard, who exercist:s due diligence or care in selecting the insurer, even if 

the insurer becomes insolvent years later. 

Surplus lines policies must disclose that a nonadmitted insurer is providing coverage and that 

guaranty fund protection will not be available if the insurer becomes insolvent. 

Conclusion 

This section on "Fundamentals" is a primer for readers who are not already familiar with the 

surplus lines market, to assist them in understanding this unique insurance marketplace and to 

put the other sections of this report into context. The fundamentals of the surplus lines market 

include the participants and their roles, the types of risks insured, the regulatory structure 

and the responsibilities imposed on the surplus lines broker/licensee and the dynamic role of 

market cycles. 
119 


99799.078

Appendix A 

U.S. Surplus Lines - Top 50 Groups, 2014 

Ranked by direct premims written 

(USO Thousands) 

U.S. Surplus Lines 
120 


99799.079

Special Report 

Appendix A 

U.S. Surplus Unes- Top 50 Groups, 2014 

Ranked by direct premims written 

(USD Thousands) 

U.S. Surplus Lines 
121 


99799.080

Special Report 

Appendix A 

u.s. Surplus Lines- Top 50 Groups, 2014 

Ranked by direct premims written 

(USD Thousands) 

U.S. Surplus Lines 
122 


99799.081

U.S. Surplus Lines 

Apendix 8 

U.S. Domestic Professional Surplus Lines- Entrances & Exits, 2010-2014 

X denotes domestic professional surplus companies, defined as companies with direct premium from 

surplus lines business greater than 50% of total premium. 

X Gemini Insurance Co 

Adriatic Insurance f..o X General Sm::urlty lndem Co Jfl 

A!!lanz Underwriters Insurance Co X GooVera Specialty Insurance Co X X 

Allied World Asr Go (US) Inc X GNY Custom Insurance Co X X 

Allied World Surplus Lines Ins X Gotham Insurance Co X 

American Modern Surp! Lines Ins Co X Great American Fidelity Insurance Co X X 

American Mutual Share Ins Corp X GuideOneNationallnsurance Co X 

American Safety Indemnity Co X X Guifford Insurance Co X X 

Appalachian Insurance Co X X X HCC Specialty Insurance Co X X 

Arch Excess & Surplus Co X Hermitage Insurance CO 

Ataln Insurance Co X 

AXIS Surplus Insurance Co X X X Indian Harbor Insurance Co X X 

Berkley Assurance CO X X X Interstate fire & casualty Co X X 

Berkley Regional Specialty Ins X X !ronshore Specialty Insurance Co X X 

C.1.nopius US Insurance, Inc. X Kinsale Insurance Co 

Capito! Specialty Insurance Corp X Knight Specialty Insurance Co 

Catlin Specialty Insurance Co X Landmark American Ins Co 

CIM Insurance Corporation X Uberty Surplus !ns r.orp X X X 

Cincinnati Specialty Undrs Ins Maiden Specialty lnsurance Co X X 

Clarendon America Insurance Co Maxum lndemnity Co X 

X 

Empire Indemnity !nsurarn.:e Co X X X Mt Hawley Insurance Co X 

Endurance Amelican Spec lns Co X X Mt Vernon Fire Insurance Co 

Essex Insurance Co X NAMlC Insurance Co, Inc 

Executive Risk Specialty Insurance Nautilus Insurance Co X X 

Fair American Select Ins Co Navigators Specialty lns Co X X 

Fireman's Fund Ins co of OH X Nevada Gapltal Insurance Co 

First Financial Insurance Co X Newe2rt Insurance Co X 
123 


99799.082

U.S. Surplus Lines 

Apendix B 

U.S. Domestic Professional Surplus Lines- Entrances & Exits, 2010-2014 

X denotes domestic professional surplus companies, defined as companies with direct premium from 

surplus lines business greater than 50% of total premium. 

X 

Northfield Insurance co X 

Old Republic Union Ins Co X 

Penn-America Insurance Co X TM Specialty Insurance Co X 

Penn-Patriot Insurance Co X Tokio Marine Specialty !ns Co X 

Penn-Star Insurance Co X X Torus Specialty Insurance Co X 

TrustStar Insurance Co X 

X Tudor Insurance Co X X 

Protective Specialty Ins Co Utica Specialty Risk Ins Co X 

QBE Specialty Insurance Co Valiant Specialty Insurance Co 

Rainier Insurance Co Voyager Indemnity Ins Co 

SAFECO Surplus lines Insurance Co X Western World Insurance Co X 

Sagamore Insurance Co X Wilshire Insurance Co 

Savers Property & Casualty Ins Co X 

Scottsdale Insurance Co X 

X 

X 

X 

X 

X 

X 
124 


99799.083

U.S. Surplus Lines 

Appendix C 

U.S. State Survey: Regulated & Unregulated Alien Lists 

Regulated Unregulated Alien Regulated Unregulated Alien Alien list Allen Us! Insolvencies Fraud Alien List Alien Ust Insolvencies Fraud 

state Maintained Maintained Tracked Unit state Maintained Maintained Tracked Unit 

Alabama" No No No Yes Montana" No Yes 

Alaska/\, Yes*"' No No Yes NebraSka"- No No 

Arizona" No** No No No Nevada Yes*"' No 

Arkansas Yes** No No Yes NeW Hampshire Yes" No 

California Yes**** No No Yes No No 

Colorado A Yes No No Yes Yes* No 

Connecticut No No No Yes New York A No No 

Delaware' Yes** No No No No(6) 

Dist of Columbia No No No No No 

florida Yes(2) No{3) Yes(4) Ohio" Yes .. Yes 

No No Yes Yes No 

Yes** No No No No No 

Idaho Yes" No Yes Yes No*** No 

lllinois No Yes No Ye.s Yes No 

Indiana Yes* No No No Yes** No 

Jowa" Yes* No No No No 

Kansas A Yes* No No SOulh Dakofll No No 

Yes* No No Yes. Tennessee No No 

Yes No No Yes Texas Yes** No 

Maine Yes No No .No IJlah Yes** No 

Maryland11 Yes"' No No No Vermont No No 

Massachusetts Yes"" No No Yes No No 

Yes No No No No No 

Yes No No Yes Yes* No 

Yes** No No Yes No No 

Yes* No No Yes Wyoming A Yes"'* No 

"Indicates state's response is as of August 2014. These states have not responded as of August 20, 2015. 

• Uses the "white !!st" from the International Insurers Department of the National Association of Insurance Commissioners. 

Source: A.M. Best Co., as of August 20, 2015. 

u Uses the "Quarterly listing of Alien Insurers" from the International Insurers Department of the NA!C to qualify aliens tor the ADO! 

~ust of Qualified Unauthorized Surplus L1nes Insurers." 

.... The Pennsylvania Insurance department maintains a listing of an eligible surplus lines insurers including aHen insurers. 

•••• Uses the UQuarterly listing of Alien Insurers" from t~ International Insurers Department of the NA!C 

(l) The Florida Office of Insurance Regulation maintains a current listing of all surplus lines insurers including aliens. 

{2) The Florida Office of Insurance regulation maintains a list of Federally Authorized Insurers that claim federal exemption {liD list) 

(3) An alien insurer insolvency is not tracked once It has become insolvent or disappeared. 

(4) There is a unit for unlicensed/unapproved entities that is operated out of the Market Conduct section of the Florida Office 

of Insurance Regulation. There is no routine monitoring of unregulated alien insurers. 

{5) The Michigan Off1ce of Financ1al and Insurance regulation maintains a current listing of all eligible unauthorized surplus lines 

including aliens 

{6) The North Carolina Department of Insurance maintams a current listing of aU surplus lines carriers that have applied and been 

approved for regulation, including aliens. 

No Yes 

No Yes 

No Yes 

No No 

No No 

No No 

Yes Yes 

No Yes 

No Yes 

No No 

No No 

No No 

Yes Yes 

No No 

No No 

No No 

No Yes 

No NO No Yes 

Yes Yes 

No No 

No No 

No Yes 

No Yes 

No No 

No No 
125 


99799.084

Special Report 

Appendix D 

State Survey: Capital & Surplus Requirements for Surplus Lines Companies 

Alaska A $15,000,000 

Arizona A $15,000,000 

Arkansas 

California 

Colorado A 

Connecticut 

Delaware 

Dist of Columbia 

Florida 

Georgia 

Hawaii"' 

Idaho 

!Hinois 

Indiana 

Iowa" 

Kansas" $4,500,000 

Kentucky 

Louisiana" 

Malne 

Maryland A $15,000,o00 

Massachusetts $20,000,000 

Michigan $7,500,000 

Minnesota $15,000,000 

MississipplA $1,500,000 

Missouri $15,000,000 

Montana" $15,000,000 

No 

$5,400,000 (1) 

NIA No 

No 

No 

$15,000,000 (10) No 

$15,000,000 No 

$300,000 No 

No 

No 

No 

No 

$15,000,000 No 

$15,000,000 No 

NIA 

$50,000,000 No 

Department (9) 

NIA 

$20,000,000 

$15,000,000 (10) 

$15,000,000 

$15000000 & 

$15,000,000 

No 

No 

No 

No 

Yes 

Yes 

No 

No 

Yes 

Yes 

New Hampshire 

New Jersey" 

New Mexico 

New York I\ 

North ('.aro!ina" 

North Oako1a 

Ohio A 

Oklahoma A 

Oregon 

Pennsylvania 

Puerto RicoA 

Rhode Js!and 

South Caronna 

South Dakota 

Tennessee 

Texas 

Utah 

Vermont $15,000,000 

Virginia" $1,000,000/ 

Wisconsin 

Wyoming $15,000,000 

"Indicates state's response is as of August 20i4. These states have not responded as of August 20, 2015. 

(1) Trust Fund 

U.S. Surplus Lines 

No 

N/A 

IliA 

No 

No 

No 

No 

No 

Nuj6) 

$5,400,000 (3) 

(8) No 

$300,000/ No 

$1,000,000 

$15,000,000 No 

$15,000,000 No 

$500,000 No 

Ustedwlth NAIC No 

International 

Insurers 

Department 

No 

No 

$15,000,000 No 

Oeemed Approval No 

m 

No 

No 

NIA No 

$15,000,000 No 

(2) Minimum surplus phase-in period for US-domiciled nonadmitted insurers currently on the Ca!ifomia list of eligible surplus lines insurers that did not meet the 

$45 minion minimum capita! and surplus requirements as of Jan. 1, 2011; the insurer must have capital and surplus if $45 million by December 31, 2013. 

(3) In addition, ahen carriers required to maintain $5.4 million trust fund in the United States. 

(4)Uoyd's 

(5) Due to Dodd~Frank 

(6) This law became effective January 1, 2012. 

(7) Insurers appearing on the Quarterly listing of Alien Insurers maintai11ed by the International Insurers Department of 

the NA!C deemed approved in Virginia. 

(8) Alien company must be listed on the Quarterly Listing of Alien Insurers maintained by the International Insurance Department 

of the NAIC. 

(9) Due to Dodd-Frank, NAIC Quarterly listing of Allen Insurers is used for verification purposes. As of January 1, 2013, new alien 

insurers require $45 mfltion. 

(1 0) Due to Dodd-Frank; NAlC Quarterly Listing of Alien Insurers is used for verification purposes. 

(11) For those alien surplus llnes carries that have applied and been approved for registration in North Carolina. Additionally, 

those insurers listed on the NAIC Quarterly Usting of Alien Insurers are doomed eligible in North Carolina. 

Source: AM. Best Co .• asofJu!y 17,2015. 
126 


99799.085

Special Report U.S. Surplus Lines 

Appendix E 

State Survey: Stamping Office & Multi State Taxation 

Stamping Premium Stamping Tax Procurement Procurement 

State Office Tax Fee Allocated Tax~~lies Monitored Alabama~--·- No 6.00~, No No Yes Nc 

Alaska A No 2.70'% 1.00% No Yes Insured Reports 

Arizona A Yes 3.00% 0.20% Nc No No 

Arkansas No 4.00% No Yes Yes Yes 

california Yes 3.00% 0.20% No Yes(1) Yes (1) 

Colorado" No 3.0Q!l1

n No Yes Yes Yes 

Connecticut No 4.00% No No Yes Yes 

Delaware No 3.00% No No Yes Insured Reports 

Dist of Columbia No 2.00% No Yes Yes No 

Yes 5.00% 0.175% Yes(3) Yes Yes 

No 4.!JO"/(l No No Yes Insured Reports 

No 4.68% No Yes No No 

Idaho Yes 1.50% 0.25% Nc Yes lllSUfed Reports 

!l!lnois Yes 3.50% 0.20% Yes No No 

lndiaria No 2.50% No No Yes Yes 

Iowa A No 1.00% No No Yes No 

Kansas" Nc 6.00% No No No No 

No 3.00% No Yes No Yes 

Nc 4.85% No Yes Yes Insured Reoortll 

Maine No 3.00% No No Yes Yes 

Maryland/\ No 3.00% No NIA Yes Insured Reoorts 

Massachusetts No 4.00% No Yes No No 

Michigan* No 2.00% No No No Yes-tn;mred ReOOrlll Minnesota Yes 3.00% 0.06% No Yes lnsured Reports 

Mississippi" Yes 4.00\lfo 0.25% Yes Yes Yes 

Missouri No 5.00% No No Yes Yes 

Montana** A No 2.75% 0:.00%'> Yes No Nc 

Nebraska" No No No(6) No No 

Nevada Yes 0.40% No Yes Yes 

New Hampshire No 3.00% No Yes Yes Yes 

No 5.00% No Nc' Yes{l) No 

No 3.0013/o N/A NIA No No 

New York"' Yes 3.60% 0.18% No Yes 

North CarolinaA No 5.00°/o No No Yes 

North Dakota No 1.75% No No Yes No 

Ohio" No 5.0011/tl No No Yes No 

OklahomaA No 6.00% No Yes No Insured Aeoorts 

Oregon Yes $15.00 No Yes No 

Yes $25.00 No Yes Insured Reports 

No 9.00%:~ No Yes Yes Yes 

No 2.00% No No No No 

South Carolina No 4.00% No No No No 

SOutll Dakota No 2.5%-3.0% No Yes{S) Yes Yes 

Tennessee No 5.00% No Nc No No 

Texas Yes 4.35% 0.06% No Yes Insured Reports 

Utah Yes 425% 0.25% Yes Yes No 

Vermont No 3.00% No NIA Yes Yes Virginia!\ No 2.25% No No No No 

Washington Yes Z:OO% OJO% No Yes Yes 
127 


99799.086

Appendix E 

state Survey: Stamping Office & Multi state Taxation 

stamping Premium Stamping Tax 

State Office Tax Fee Allocated 

West Virginia No 4.55% No No 

Wisconsin No 3.00% No No 

Wyoming No 3.00% No Yes 

1\ Indicates response is as of August 2014. These states have not responded as of August20, 2015. 

(1) Not by DOl; handfed by state franchise tax board. 

(2) Not by DOl; handled by Department of Revenue Services/Taxation. 

U.S. Surplus Lines 

Procurement Procurement 

Tax Applies Monitored 

No No 

Yes(S) No 

Yes Yes 

{3) Florida has joined the tax sharing agreement of NIMA. Since 7/1112, all Florida home state policies get filed at the NIMA Clearinghouse and other NIMA 

participants will get their portion of the allocated premium. Non-participating state's premium will be retained by the home state. 

(4) This amount includes .3% collected for Oregon Fire Marshalls' office. 

(5) Tax now 3% on ocean marine business. 

(6) Tax payable is the sum of 3% on portion of gross premiums altocated to Nebraska plus other state's applicable tax rates applicable on the portion of the premiums 

allocated to other states. 

(7) Premium taxes are handled by the Division of Taxation. 

(8} South Dakota joined the tax sharing agreement of NIMA as of 7/1/12. All of South Dakota's home state policies get filed at the N!MA Clearinghouse and 

premium is allocated with other participating NlMA states. Non-NlMA states' premium is retained by the home state of the insured. 

• In Michigan, a 0.5% regulatory fee applies in addition to the premium tax. 

•• Assess a 1% stamping fee on paper filings and a 1/2% (0.005) stamping fee on electronically filed policies. No longer necessary for Montana. Eff.ectfve 1/1/2012, 

Montana's stamping fee is 0.00% tor electronically filed polictes and endorsements and paper filings have a 0.25% stamping fee. 

Source: A.M. Best Company, as of August 20, 2015. 
128 


99799.087

Founded in 1899,A.M. Best Company is the world's oldest and 

mo..-;t authoritative insurance rJ.ting and information source. For 

more information, visit www.ambest.com. 

A.M. BEST COMPANY, INC. 

(WORlD HEADQUARTERS) 

Ambest Road, Oldwick, NJ 08858 

Phone:+ I (908) 439·2200 

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Phone: +852 2827·3400 

A.M. BEST ASIA-PACIFIC (SINGAPORE) PTE. LTD. 

6 Hattery Road, #40-0ZB, Singapore 

Phone: +65 6589 8400 

DURAl OFFICE• 

(MENA, South & Central Asia) 

Office 102,Tower 2, Curren<--y House, DIFC 

P.O Box 506617, Dubai, UAE 

Phone: +971 43 752 780 

*Regulated by the DFSA as a Representative Office 

A.M. BEST AMERICA lATINA, S.A. DE C.V. 

(Latin America) 

Pasco de Ia Reforma 412 Piso 23 

Mexico City, Mexico 

Phone: +52·55·5208-1264 
129 


99799.088

Testimony of 

Teresa D. Miller 

Commissioner 

Pennsylvania Insurance Department 

On Behalf of the National Association oflnsurance 

Commissioners 

Before the 

Subcommittee on Housing and Insurance 

Committee on Financial Services 

United States House of Representatives 

Regarding: 

How to Create a More Robust and Private Flood Insurance 

Marketplace 

January 13, 2016 
130 


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Introduction 

Chairman Luetkemeyer, Ranking Member Cleaver, and members of the Subcommittee, thank 

you for the invitation to testify today. My name is Teresa Miller. I serve as the Commissioner of 

the Insurance Department for the Commonwealth of Pennsylvania and I am here on behalf of the 

National Association of Insurance Commissioners (NAIC). 1 I also serve as the Chair of the 

NAIC's Property and Casualty (C) Committee. On behalf of my fellow state insurance 

regulators, I appreciate the opportunity to offer our views and perspective on the Flood Insurance 

Market Parity and Modernization Act (H.R. 2901) and related issues surrounding the 

development of a private flood insurance market. 

Floods are the most common natural disaster in the United States and all 50 states have 

experienced floods or flash floods in the past five years. 2 State insurance regulators are keenly 

aware of the devastating effects floods have on constituents in our states and believe it is critical 

that flood insurance is available and affordable to protect homes, businesses, and personal 

property, providing peace of mind. Insurance consumers should have access to multiple options 

in order to find their preferred coverage and price, and facilitating increased private sector 

involvement in the sale of flood insurance will help promote these consumer choices and spur 

competition. 

The NAIC supports the Flood Insurance Market Parity and Modernization Act (H.R. 2901) as 

introduced, and commends Congressmen Ross and Murphy for developing this legislation to 

help encourage greater growth in the private flood insurance market, provide consumers with 

additional choices for flood insurance products, and make clear that the state insurance 

regulatory authorities that have long protected policyholders and allowed for the growth of other 

vibrant insurance markets will apply to private flood insurance. 

Private Flood Insurance Market 

In 1968, Congress established the National Flood Insurance Program (NFIP) in response to the 

lack of availability of private insurance and continued increases in federal disaster assistance due 

to floods. At the time, flooding was viewed as an uninsurable risk and coverage was virtually 

unavailable from private insurance markets, particularly in the wake of frequent widespread 

flooding along the Mississippi River in the early 1960s. In recent years, more sophisticated risk 

mapping and modeling have developed, enabling the private market to more accurately price the 

risk and generating new interest among private insurers to provide such coverage. Access to 

NFIP policy and claims data would also help private insurers assess flood risks and may 

stimulate the market even more. 

While there is limited interest from the admitted insurance market at this time, there is a growing 

appetite in the surplus lines market to provide private flood insurance coverage. Like many types 

of new coverages, private flood coverage is being developed and offered first by surplus lines 

1 The NAIC is the United States standard-setting and regulatory support organization created and governed by the 

chief insurance regulators from the 50 states, the District of Columbia, and five U.S. territories. Through the NAIC, 

we establish standards and best practices, conduct peer review, and coordinate our regulatory oversight. NA!C 

members~ together with the central resources of the NArC, fonn the national system of state-based insurance 

regulation in the U.S. 2 https://www.floodsmart.gov/floodsmart/pages/flood fact~ 
131 


99799.090

insurers, which typically insure unique or otherwise difficult to underwrite risks that the admitted 

market is, at least initially, reluctant to insure. Typically, after a new coverage has proven itself 

profitable in the surplus lines market and sufficient data has been gathered to provide a sound 

basis for rate development, the coverage tends to become a standard product in the admitted 

market. Ideally, private flood coverage will follow this path and admitted carriers will eventually 

engage in this market. 

Facilitating the entry of additional carriers into the market will provide consumers with access to 

additional options for flood insurance products. In Pennsylvania, competition is proving to be 

good for consumers, providing more choices and better prices. At least five surplus lines carriers 

sold flood insurance to homeowners in Pennsylvania in 2015, and have written nearly I,OOO 

policies. We have also started seeing licensed insurers write the coverage, but they currently 

serve very limited markets. 

We are finding in many cases that private carriers are willing to offer comparable coverage at 

substantially lower cost than the NFIP. In Pennsylvania, one property owner would have paid a 

$7,500 annual premium with the federal program, but found private coverage for 

$1,415. Another homeowner was quoted a $6,000 annual premium by NFIP, but found a surplus 

lines policy for $900. Yet another homeowner's story is similar to many in Pennsylvania. This 

individual lived in his home for many years without experiencing a flood, and without flood 

insurance, but recently was told his property was now in a flood plain because of re-mapping by 

the Federal Emergency Management Agency (FEMA). NFIP coverage would have cost him 

$3,000 a year. He is paying $1,000 a year for a surplus lines policy. 

These are just a few examples. Flood insurance is a big issue in Pennsylvania. FEMA statistics 

show from 2006 through 2014, Pennsylvania property owners filed more than 18,000 claims 

with the NFIP, for more than $551 million in damages, with claims coming from 66 of the state's 

67 counties. 

Governor Tom Wolf has made consumer protection the top pnonty for the Insurance 

Department. I wholeheartedly endorse this legislation, and believe encouraging more private 

insurers to enter the flood insurance market will provide homeowners needed coverage, often at 

greatly reduced costs. Over time, this additional competition and shift of risk from a federal 

program to the private market could help lessen the exposure of U.S. taxpayers to the types of 

catastrophic flood losses that now reside as unpaid debt on the NFIP's books. 

Regulation of Surplus Lines Market 

In the case of private flood policies written by surplus lines carriers, state insurance regulators 

will continue to oversee the surplus lines insurance marketplace by imposing capital and surplus 

requirements on eligible U.S.-based carriers and licensing and supervising surplus lines brokers. 

Surplus lines insurers that are domiciled in a U.S. state are regulated by their state of domicile 

for financial solvency and market conduct. Surplus lines insurers domiciled outside the U.S. may 

apply for inclusion in the NAIC's Quarterly Listing of Alien Insurers. The carriers listed on the 

NAlC Quarterly Listing of Alien Insurers are subject to capital and surplus requirements, a 

requirement to maintain U.S. trust accounts, and character, trustworthiness and integrity 

requirements. 

2 
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99799.091

In addition, the insurance regulator of the state where the policyholder resides (the home state of 

the insured) has authority over the placement of the insurance by a surplus lines broker and 

enforces the requirements relating to the eligibility of the surplus lines carrier to write policies in 

that state. The insurance regulator can potentially sanction the surplus lines broker, revoke their 

license, and hold them liable for the full amount of the policy. 

In Pennsylvania, the Insurance Department can declare a surplus lines insurer ineligible to do 

business in the state, if the regulator finds the insurer is in unsound financial condition, has 

willfully violated the laws of the state, or does not make reasonably prompt payment of claims in 

Pennsylvania or elsewhere. The Insurance Department may also suspend, revoke, or refuse to 

renew the license of a surplus lines broker for various reasons, including failure to make and file 

required reports, failure to collect or transmit required tax on surplus lines premiums, failure to 

remit premiums due insurers or return premiums due insureds within reasonable time limits, or 

for any other cause for which action can be taken against an insurance producer's license. In 

Pennsylvania, the Insurance Department also has authority to assess a civil penalty up to $2,000 

for the first offense, and up to $4,000 for each succeeding offense against anyone violating the 

Commonwealth's insurance laws. 3 

Like any other insurance market, as the private flood insurance market grows and more 

companies offer coverage including admitted carriers, we anticipate the regulation will continue 

to evolve to meet the size and breadth of the market as well as the needs of insurance consumers. 

State insurance regulators have a long history of carefully monitoring the emergence and 

innovation of new products and coverages, and tailoring regulation over time to ensure 

consumers are appropriately protected. 

Flood Insurance Market Parity and Modernization Act (H.R. 2901) 

In order to help further facilitate the development of the private flood market, changes must be 

made to address some of the unintended consequences resulting from the Biggert-Waters Flood 

Insurance Reform Act of 2012. Although one of its objectives was to provide opportunities for 

the growth of the private market as an alternative to the NFIP, the definition of and regulatory 

environment surrounding private flood insurance created by the Biggert-Waters Act is at odds 

with this objective and makes it more difficult for insurance regulators to protect consumers and 

ensure availability of the product. 

Critical Regulatmy Clarifications 

The Biggert-Watcrs Act empowered federal banking and housing regulators and the governmentsponsored enterprises (GSEs) to apply their own requirements related to the financial solvency, 

strength, or claims-paying ability of private insurance companies from which they will accept 

private flood insurance. This is highly problematic as banking and housing regulators neither 

have the expertise nor the experience to regulate insurance companies or insurance markets. This 

also results in duplicative and potentially inconsistent regulatory requirements for insurers and 

serves as a disincentive for private insurers to consider writing flood insurance coverage. 

We understand that it may be appropriate for lending entities and the GSEs to review the 

financial health of insurers and provide guidelines as to the type of companies its customers may 

3 40 P.S. §§ 99!.1603, 991.1623, 99!. 991.!607. 991.1625. 

3 
133 


99799.092

purchase from. However, states have over l 40 years of experience supervising the business of 

insurance, protecting policyholders, and balancing availability with solvency. Banking and 

housing regulators, whose regulatory objectives (i.e., ensuring the safety and soundness of banks 

and the GSEs) are fundamentally different than insurance consumer protection and promoting 

competitive insurance markets, are ill suited to regulate insurance. It is inappropriate for them to 

be given the authority to substitute their judgement for those charged under law with regulating 

insurance products and protecting policyholders. In fact, the federal banking regulators 

acknowledged in their proposed rulemaking on private flood insurance that state insurance 

regulators, as the primary functional regulators of the sector, may be in the best position to 

evaluate the condition and ability of a private insurer to offer a llood insurance policy. 4 

Moreover, members of this committee have repeatedly affirmed that insurance and its regulation 

is unique and fundamentally different than banking and other types of financial products. 

To address this, H.R. 290 I includes important language clarifying that state insurance regulators 

have the same authority and discretion to regulate private flood insurance as they have to 

regulate other similar insurance products and markets. We appreciate these essential 

clarifications that are critical for state insurance regulators' support for the legislation. Any 

proposal to amend H.R. 2901 by supplanting state insurance regulators' experience and expertise 

with those of banking and housing regulators will raise serious concerns for state insurance 

regulators. 

Private F1ood Definition 

Another impediment for entrants into the private flood market is the definition of private flood 

insurance included in the Biggert-Waters Act. Private flood insurance is defined in unnecessarily 

narrow terrns with a number of prescriptive conditions. In order for a private market to evolve, 

we expect insurers would need flexibility to tailor insurance products to meet consumer needs. 

The Biggert-Waters Act does not allow for this innovation, rather it focuses on ensuring policies 

do not deviate from its rigid criteria, despite the fact private insurers may be able to offer the 

consumer additional coverage features or greater limits. H.R. 2901 alleviates these concerns by 

defining private llood insurance as a policy that is issued by a licensed insurer or eligible surplus 

lines insurer and provides coverage that is compliant with state laws and regulations. These 

essential clarifications will assist in removing the restrictive and confusing language in current 

law to help prompt more insurers to enter this market if they are willing. 

Conclusion 

As insurance markets evolve, state insurance regulators remain extensively engaged with all 

relevant stakeholders to promote an optimal regulatory framework-private flood insurance is no 

exception. As the private flood market develops, we remain committed to effective regulation 

and to making changes to our regulatory structure when necessary. State insurance regulators 

will meet any new challenges posed by a dynamic private flood insurance market and we 

continue to believe that well-regulated markets make for well-protected policyholders. The 

NAIC appreciates Congressmen Ross and Murphy's leadership in introducing H.R. 2901 and 

their efforts to encourage greater growth in the private flood insurance market. We thank them 

4 Loans in Areas Having Special Flood Haz11rds, 78 Fed. Reg. 65,108 (Proposed Oct. 30, 2013). 

4 
134 


99799.093

for their support of state regulation and look forward to continuing to work with the members of 

this committee as the bill moves forward. Thank you again for the opportunity to be here on 

behalf of the NAIC, and I look forward to your questions. 

5 
135 


99799.094

I Pfoperty Casualty ln$1Jtcn 

Association of Amerit:.:.a 

June 25, 2015 

The Honorable Dean Heller 

United States Senate 

324 Hart Senate Office Building 

Washington, D.C. 20510 

The Honorable Jon Tester 

United States Senate 

311 Hart Senate Office Building 

Washington, D.C. 20510 

Nathaniel F. Wienecke 

Senior Vice President 

Federal Go\'crnment Rchllions 

The Honorable Dennis Ross 

United States House of Representatives 

229 Cannon House Oflice Building 

Washington, D.C. 20515 

The Honorable Patrick Murphy 

United States House of Representatives 

211 Cannon House Oflicc Building 

Washington, D.C. 20515 

Dear Senators Heller and Tester and Representatives Ross and Murphy: 

PC! supports the viability of a competitive private insmance market for the benefit of consumers and 

insurers, and believes that good insurance supervision recognizes the wide variety of propertycasualty business models that can increase private competition. 

PCI applauds you and your colleagues for introducing the Flood Insurance Market Parity and 

Modernization Act (S. 1679 and H.R. 2901). PCT remains dedicated to working with House and 

Senate leaders to strengthen flood protection and risk management options for the millions 

Americans who depend on flood insurance to protect their homes and businesses. This common 

sense legislation clarifies the intent of Congress that private flood insurance should be an option 

available to homeowners. 

PCI's members include more than two-thirds ofthc insurers that partner with the NFIP through the 

"write-your-own" (WYO) program to sell, service, and administer this federal program. PC! is 

composed of almost I ,000 member companies, representing the broadest cross-section of insurers of 

any national trade association. PC! members write over $183 billion in annual premium, 35 percent 

of the nation's propetiy casualty insurance. Member companies write 42 percent of the U.S. 

automobile insurance market, 27 percent of the homeowners market, 32 percent of the commercial 

property and liability market, and 34 percent of the private workers compensation market. 
136 


99799.095

Bui!dmg Success~ Together. 

July 7, 2015 

The Honorable Dean Heller 

United States Senate 

Washington, D.C. 20510 

The Honorable Dennis Ross 

U.S. House of Representatives 

Washington, D.C. 20515 

The Honorable Jon Tester 

United States Senate 

Washington, D.C. 20510 

The Honorable Patrick Murphy 

U.S. House of Representatives 

Washington, D.C. 20515 

RE: Support for S. 1679/HR 290 I, the Flood Insurance Market Parity and Modernization Act 

Dear Senators and Congressmen: 

The American Bankers Association and its insurance subsidiary, the American Bankers Insurance 

Association (ABIA) have long supported both legislative and regulatory efforts to ensure that private 

flood insurance policies are more readily available as an alternative to the NFIP. We strongly support 

your efforts to pass legislation making this possible. 

Providing consumers with alternatives to the National Flood Insurance Program (NFIP) and driving down 

flood insurance prices through greater competition is one way to ensure greater protection for consumers 

against flood damages in the mortgage markets; it is also a significant contribution to the goal of returning 

the NFIP to more robust fiscal health. 

While the Biggert-Waters Act of2012 and the Homeowners Flood Insurance Affordability Act 

of2014 resulted in needed market and regulatory reforms, more work needs to be done to unlock 

the power of markets to provide affordable flood insurance choices. We look forward to working 

with you to enhance your bill and to build support for this important legislation. 

Sincerely, 

James C. Ballentine 

Executive Vice President 

Congressional Relations and Political Affairs 

a},_ v,.c '&...cL~ 

J. Kevin A. McKechnie 

Senior Vice President and Director 

Office of Insurance Advocacy 

11 
137 


99799.096

• J 

I I 

AMERICAN 

INSURANCE 

ASSOCIATION 

January 13,2016 

The Honorable Blaine Luetkemeyer 

Chairman 

Subcommittee on Housing and Insurance 

House Financial Services Committee 

2128 Rayburn House Office Building 

Building 

Washington, DC 20515 

2101 L Street NW 

Suite 400 

Washington, DC 20037 

The Honorable Emanuel Cleaver 

Ranking Member 

202-828-7100 

Fax 202-293-1219 

www,aiadc.org 

Subcommittee on Housing and Insurance 

House Financial Services Committee 

4340 Thomas P. O'Neill, Jr., Federal Office 

Washington, DC 20515 

Dear Chairman Luetkemeyer and Representative Cleaver: 

Recent events remind us that communities all across the United States remain vulnerable to severe 

flooding. Flood insurance plays a critical role in assisting those communities rebound and recover from 

the damages that flooding causes. As the Subcommittee examines "How to Create a More Robust and 

Private Flood Insurance Marketplace," I write to express AlA's support for H.R. 2901, the Flood 

Insurance Market Parity and Modernization Act (FIPMA). 

AlA is the leading property-casualty insurance trade organization, representing approximately 325 

insurers that write more than $127 billion in premiums each year. AlA member companies offer all types 

of property-casualty insurance, including personal and commercial auto insurance, commercial property 

and liability coverage, workers' compensation, homeowners' insurance, medical malpractice coverage, 

and product liability insurance. Several AlA member companies provide flood insurance in partnership 

with the NFIP through the Write-Your-Own (WYO) program. 

The Biggcrt-Waters Flood Insurance Reform Act of2012 (BW-12) allows private flood policies to meet 

the mandatory purchase requirement of the National Flood Insurance Program (NFIP). Unfortunately, 

some confusion remains and the market has been slow to respond. The Flood Insurance Market Parity 

and Modernization Act, introduced by Reps. Ross (FL) and Murphy (FL) would clarify this important 

provision, which is an important step toward the development of a private flood insurance market as a 

compliment to the NFIP. 
138 


99799.097

Chairman Luetkemeyer and Rep. Cleaver 

January 13, 2016 

Page 2 

Our country's ability to properly manage catastrophic risk depends on our willingness to undertake a 

thoughtful debate on how best to make our communities more resilient, protect property, and reduce 

taxpayer exposure. Fostering a private flood insurance market will help achieve these goals by giving 

consumers options, including the NFIP, to insure against losses from flooding. While providing choice to 

homeowners is a key component to a competitive marketplace, it is critical that homeowners work with 

their insurance carriers, and their agents or brokers, to understand the scope of the coverages and to 

ensure that they have the proper coverage amounts. 

On behalf of our member companies, we commend the Committee for addressing this issue and we look 

forward to working with you to better assist homeowners and communities prepare for and recover from 

the damages caused by flooding. Please feel free to contact AIA if we can be of any further assistance. 

Sincerely, 

Thomas Santos 

Vice President, Federal Affairs 

CC: The Honorable Jeb Hensarling, Chairman, House Committee on Financial Services 

The Honorable Maxine Waters, Ranking Member, House Committee on Financial Services 

The Honorable Dennis Ross 

The Honorable Patrick Murphy 
139 


99799.098

'

Independent Insurance Agents 

& Brokers of America. Inc. 

20 F Street N. W., Suite 610, Washington, D.C., 20001, (202) 863-7000 

July 13, 2015 

Senator Dean Heller 

United State Senate 

Washington, D.C. 20510 

Congressman Dennis Ross 

U.S. House of Representatives 

Washington, D.C. 20515 

Senator Jon Tester 

United States Senate 

Washington, D.C. 20510 

Congressman Patrick Murphy 

U.S. House of Representatives 

Washington, D.C. 20515 

Dear Senator Heller, Senator Tester, Congressman Ross and Congressman Murphy: 

On behalf of the Independent Insurance Agents & Brokers of America (Big "I"), we 

want to express our sincerest appreciation for your introduction of the Flood Insurance 

Market Parity and Modernization Act of2015 (S. 1679, H.R. 2901). The Big "I" 

supports a robust and vibrant National Flood Insurance Program (NFIP) for the millions 

of consumers across the country who depend on this important risk management tool. 

This legislation further strengthens the NFIP by increasing the likelihood that private 

insurers will explore entering the flood insurance market as a complement to the NFIP. 

This bill is particularly important to the Big "I" because it clarifies that a private flood 

policy can satisfy the mandatory purchase requirement for flood insurance under the 

terms of the NFIP. Mandating that state insurance regulators will be in charge of 

determining what is "acceptable" private market flood insurance helps to provide 

additional clarity to program. Finally, ensuring that policyholders will not lose their 

flood insurance subsidies or their grandfathered status if they decide to move their 

coverage from the NFIP to a private market policy and one day wish to return to the 

NFIP, is a vitally important feature to agents and the customers they serve. 

The Big "I" is the nation's oldest and largest national association of independent 

insurance agents representing a network of more than a quarter million agents, brokers 

and their employees. Ensuring the availability of an efficient and effective flood 

program is a top priority for our members, and we are grateful for your leadership and 

advocacy on behalf of this important program. 

Sincerely, 

Charles E. Symington Jr. 

Senior Vice President, External & Government Affairs 
140 


99799.099

February 2, 2016 

Representative Blaine Luetkmeyer, Chairman 

Representative Emanuel Cleaver, Ranking Member 

Subcommittee on Housing and Insurance 

Financial Services Committee 

United States House of Representatives 

By Email 

Re: Supplemental Comments to January 13, 2016 Hearing, "How to Create a 

Robust and Private Flood Insurance Marketplace? 

Chairman Luetkmeyer and Ranking Member Cleaver, 

Thank you again for inviting me to speak to the subcommittee on flood 

insurance issues on January 13, 2016. I write to supplement my testimony with 

comments on issues raised during the hearing. 

GSE Authority to Establish Claims Paying Abilittj of Flood Insurers is Not 

Insurance Regulation and Does Not Replicate or Usurp State Insurance 

Regulation 

The NAIC testified that that the provision' in the Biggert Waters Act 

regarding authorizing the Government Sponsored Enterprises to establish criteria for the 

'·financial solvency, strength or claims paying ability of private insurance companies:" 

'"This is highly problematic as banking and housing regulators neither have the 

expertise nor the experience to regulate insurance companies or insurance 

markets. This also results in duplicative and potentially inconsistent regulatory 

requirements for insurers and serves as a disincentive for private insurers to 

consider writing flood insurance coverage." 

The NAIC testimony is incorrect. The GSEs already establish the claims-paying 

ability of insurers- for hazard insurance as well as flood insurance- by simply requiring 

that the insurers have minimum financial strength ratings from rating agencies. For 

example, Fannie Mac's Servicing Guide sets out property (hazard) insurance and flood 

insurance requirements for the type and amount of coverage as well as rating (financial 

strength) requirements of insurers: 
141 


99799.100

Supplemental Comments of the Center for Economic Justice 

·'How to Create a More Robust and Private Flood Insurance Market Place 

February 2, 2016 

Page 2 

The property (hazard) insurance policy for the insurable improvements of the 

property securing any first lien mortgage loan must be written by a carrier that 

meets one of the fOllowing rating requirements, even if it is rated by more than 

one of the rating agencies. 

Rating Agency Rating Category 

A.M. Best Company, Inc. Either a .. B'' or better Financial Strength Rating in 

Best's Insurance Reports, or an '"A'' or better Financial Strength Rating and a 

Financial Size Category of'•VJII" or greater in Best's Insurance Reports Non-US 

Edition. Carriers providing coverage for co-op projects must have a general 

policyholder's rating of"A" and a Financial Size Category of'·V'' in Best's 

Insurance Reports. 

Dcmotech, Inc. ''A" or better rating in Demotech 's Hazard Insurance Financial 

Stability Ratings. 

Standard & Poor's .. BBB'' or better Insurer Financial Strength Rating in Standard 

& Poor's Ratings Direct Insurance Service. 

Clearly, the GSE's authority and ability to establish requirements for the claimspaying ability of hazard and flood insurers is reasonable and necessary for the GSE's to 

protect the properties serving as collateral for the loans the GSEs own or insure. This 

authority clearly has not and does not replicate or usurp state financial solvency 

regulation. The NA1C's testimony in this regard is not only incorrect, but calls into 

question the NATC's understanding of the mortgage markets. The NAIC's testimony that 

'·banking and housing regulators neither have the expertise nor the experience to regulate 

insurance companies or insurance markets'' is particularly ironic given both the NAIC's 

misunderstanding of this provision in the Biggert Waters Act and the banking and 

housing regulators' action to stop the abuses in lender-placed insurance markets in the 

absence of action by the NAIC or ali states other than New York, Florida and California. 

HR 2091 Will Leave the NFIP in a More Vulnerable Financial Condition and Reduce 

Funding for Flood Mapping, Loss Mitigation and NFIP Reserves and Treasury Loan 

Repayment 

Congress has tasked the FEMA and the NFIP with numerous goals for flood 

insurance, including, among others: 

• Encourage purchase of flood insurance 

• Reduce subsidies and move to actuarial rates 

• Work with stakeholders to map floodplains 

• Promote loss mitigation 

www.cej-online.o•:g • 1701 A South Second Street, Austin, TX 78704 • 512-912-1327 
142 


99799.101

Supplemental Comments of the Center for Economic Justice 

"'How to Create a More Robust and Private Flood Insurance Market Place 

February 2, 2016 

Page3 

Several of these goals have affected the structure ofNFIP rates. When the NFIP 

sets its rates, it evaluates its risk exposure in flood zones in 30 categories, ranging from 

lowest flood risk (and expected claim cost) to highest. In an effort to meet Congressional 

intent to broaden tlood participation, the NFIP averages the expected claims for the 30 

risk categories to develop a single rate across all 30 classes instead of setting 30 different 

rates which would range from lower than average to higher than average. 

fn the homeowners insurance market, an insurer could not do this type of broad 

risk averaging because another insurer would come into the market and offer less-thanaverage rates for consumers with less-than-average risk. The insurer offering only the 

broadly-averaged rate would suffer "adverse selection," meaning that it would end with 

above~avcrage risks (as the below-average risk move to the other insurers) while charging 

the average rate. With HR209l, this is what would occur to the NFJP as surplus lines 

insurers identify the below-average risks and charge less than the NFJP. 

The NFIP premium charge to policyholders includes a policy fee to pay for, 

among other things, flood mapping activities- activities essential for flood loss 

mitigation efforts. Reducing the number ofNFIP policyholders will result in either fewer 

funds for these activities, a higher policy fee for the remaining policyholders or both. 

In response to Congressional requirements, there is another component beside the 

policy fee in the NFlP premium which a surplus lines insurer would not need to include 

in its flood premium- the amounts included for the NFIP reserve and to pay back the 

loan from the Treasury Department for past NFIP claims. As with the funding for 

mapping. a reduction in the number ofNFIP policyholders means that the amounts 

collected for NFfP reserves and loan repayment are reduced, the reserve assessment (and 

NFIP premium) must increase, or both. 

As the above discussion makes clear, HR 2091 allows surplus lines insurers to 

cherry-pick the least risky NFIP policyholders resulting in adverse selection for the NFIP. 

As the NFJP policyholder base shrinks, the funding for flood mapping, reserves and loan 

repayment will also shrink. Even if the NFI P attempts to increase the policy fee and 

reserve amount to cover the shrinking base, then more policyholders will find cheaper 

policies from private insurers-· with the result that the NFIP will be far more financially 

vulnerable as premium reductions far outpace risk/exposure reduction. This is known as 

the death spiraL 

The proposal set out in my testimony- to require flood be covered as pan of the 

standard residential and commercial property insurance policies with the NFIP moving 

out of the business of direct provision of flood insurance and into the role of ca[astrophe 

reinsurer- is the only meaningful way to move flood insurance to the private sector 

under state-based regulatory oversight without saddling the federal government- and 

eventually taxpayers- with endless flood insurance costs. 

\V\Vw.cej~online.org • 1701 A South Second Street Austin, TX 78704 • 512~912~1327 
143 


99799.102

Supplemental Comments of the Center for Economic Justice 

•·IJow to Create a More Robust and Private Flood Insurance Market Place 

February 2, 2016 

Page4 

State Insurance Commissioners' Consumer Protection Authority and Ability to Protect 

Consumers Purchasing Surplus Lines Jm·urance is Very Limited 

The NAIC testified that state insurance regulators have authority to protect 

consumers who purchase surplus lines products. However, that authority is very limited 

and wiH likely result in consumer complaints with surplus lines flood insurance. 

Insurance commissioners' authority with surplus lines insurance consists largely of: 

• Accepting a surplus lines insurer as eligible in the state. The attached recent 

bulletin from the Alaska Division of Insurance illustrates this authority. Insurance 

department oversight of the financial condition of surplus lines insurers is 

different and less thorough than the financial oversight of admitted insurers. 

• Licensing surplus lines agents who issue the surplus lines policies for surplus 

lines insurers. 

• Establishing and enforcing due diligence requirements to ensure surplus lines 

policies are not issued for types and lines of insurance available from admitted 

insurers. 

Insurance regulators lack authority over sumlus lines insurance in several key areas. 

• No review and approval of policy forms. For example, state regulator would 

approve a mandatory arbitration provision and ban on class arbitrations in a 

homeowners insurance policy. Yet a surplus lines insurer could not only include 

such claim settlement requirements in a surplus lines policy, the surplus lines 

insurer could specify the arbitration take place in the home jurisdiction of the 

surplus lines insurer- which may be Bermuda or the United Kingdom. The 

NAIC testified that state insurance regulators have authority to enforce unfair 

claim settlement practice and unfair and deceptive trade practice laws committed 

by surplus Jines agents and insurers. But it is unclear what authority the NAIC 

was referring to in this regard if, for example, the surplus lines policy fonn --over 

which the insurance commission has no authority- contains unfair or deceptive 

provisions. 

• No review and approval of rates. About seventeen states and District of Columbia 

have recently issued bulletins advising insurers that "price optimization" is not 

permitted in establishing rates and premium charges for auto and homeowners. 

Price optimization refers to a practice of using non-risk related factors- such as a 

consumer's willingness to accept a higher rate- to set the premium charge. Price 

optimization violates state law requirements that rates be cost-based and not 

unfairly discriminatory. Insurance regulators have no authority to stop this or 

other abusive rating practices on surplus lines policies. 

www.ccj-online.ore • 1701 A South Second Street, Austin, TX 78704 • 512-912-1327 
144 


99799.103

Supplemental Comments of the Center for Economic Justice 

''How to Create a More Robust and Private Flood Insurance Market Place 

February 2, 2016 

Page 5 

• No guaranty fund protection. Surplus lines insurers do not participate in state 

guaranty funds, which are organizations created to pay claims in the event the 

insurer becomes insolvent and is unable to pay the claims on its policies. Mr. 

Kelley testified that it is impractical for surplus lines agents to participate in state 

guaranty funds. This "impracticality" may be because surplus lines insurance was 

intended to address unique coverages, generally for commercial- not personal -

insurance. The issue of whether surplus lines insurers should or should not 

participate in state guaranty funds is irrelevant- the fact remains that surplus lines 

insurers do not participate in state guaranty funds. with the result that there is no 

policyholder protection in the event the surplus lines insurer is unable to pay its 

claims. Mr. Kelley also testified that surplus lines insurers were financially strong 

and rarely failed. The same is true for admitted insurers- they are financially 

strong and rarely fail. But the purpose of a guaranty fund is to protect the 

consumer for that rare event. 

In summary, state insurance commissioners lack most of the authority they have 

to protect consumers purchasing policies from admitted carrier for consumers purchasing 

policies from surplus lines insurers. 

Thank you again for the oppottunity to testify on these important flood insurance 

issues. 

Bimy Birnbaum 

Executive Director 

\vww.ccj-online&rg • 1701 A South Second Street, Austin, TX 78704 • 512-912-1327 
145 


99799.104

July 16, 2015 

The Honorable Dean Heller 

The United States Senate 

Washington, D.C. 20510 

The Honorable Jon Tester 

The United States Senate 

Washington, D.C. 20510 

Dear Senators Heller and Tester, 

The Council of Insurance Agents and Brokers (The Council) is proud to support S.l679, the Flood 

Insurance Market Parity and Modernization Act of 2015, and thanks you for your leadership on this 

important issue. Your efforts seek to ensure that consumers have access to private flood insurance 

options. 

The Council of Insurance Agents and Brokers represent the country's largest commercial insurance 

brokerage firms which collectively produce 90% of the commercial insurance policies in the United 

States. Council members represent the interests of commercial flood insurance buyers and strongly 

support a competitive market that provides suitable and affordable coverage options for their corporate 

clients. 

The Flood Insurance Market Parity and Modernization Act of 2015 amends the definition of private flood 

insurance to ensure surplus lines insurers are eligible to offer private market solutions and alternatives 

to consumers in need of unique and complex flood risks. Although surplus lines insurance companies are 

currently allowed to provide private flood insurance, the definition of private flood insurance should be 

revised to remove any uncertainty that surplus lines insurance companies are eligible to provide 

insurance in the insured's home state, in accordance with the Nonadmitted and Reinsurance Reform Act 

of 2010, and to ensure policyholders access to the surplus lines market alternatives. 

Thank you for your leadership on preserving a strong, national market for flood insurance options. The 

Council strongly supports 5.1679. 

Best, 

Ken Crerar 

President and CEO 

Joel Wood 

Senior Vice President 

Government Affairs 

Joel Kopperud 

Vice President 

Government Affairs 
146 


99799.105

July 27, 2015 

The Honorable Dean Heller 

United States Senate 

Washington, D.C. 20510 

The Honorable Dennis Ross 

U.S. House of Representatives 

Washington, D.C. 20515 

The Honorable Jon Tester 

United States Senate 

Washington, D.C. 20510 

The Honorable Patrick Murphy 

U.S. House of Representatives 

Washington, D.C. 20515 

Re: FSR Supports the Flood Insurance Market Parity and Modernization Act 

I am writing on behalf of The Financial Services Roundtable in support of the Flood Insurance 

Market Parity and Modernization Act, S. 1679, as introduced in the Senate by Sens. Dean Heller 

(R-NV) and Jon Tester (D-MT), and H.R. 2901, as introduced in the House by Reps. Dennis Ross 

(R-FL) and Patrick Murphy (D-FL). The legislation clarifies the definition of an acceptable private 

flood insurance policy in order to increase the availability of flood policies for American homes 

and businesses and encourage competition in the flood insurance marketplace. 

Flooding impacts homeowners and businesses across the country, all too often leaving those 

impacted struggling to protect themselves and recover following flood events. Affordable flood 

insurance is the best defense Americans have to combat this risk. The bipartisan, bicameral Flood 

Insurance Market Parity and Modernization Act encourages privatization of flood insurance by 

enabling lenders to accept flood insurance policies outside of the National Flood Insurance 

Program, as long as those policies meet certain coverage requirements. This increases 

competition and enhances consumer choice. 

We at the Financial Services Roundtable look forward to working with the authors of this 

legislation and other Members of Congress to support enactment of this law and to make broader 

reforms to the National Flood Insurance Program that will induce significant private sector 

participation that protects both policyholders and taxpayers. 

Sincerely, 

Francis Creighton 

Executive Vice President of Government Affairs 

llf\.\\'i( L\1 :-ol RVI( I;-: R'-"Uf\.D L\BI.l 

600 13th Street, NW, Suite 400, Washington, D.C. 20005 I 202-289-4322 I inlo@fSRoundtable.org I www.fSRoundtable.org 
147 


99799.106

June 30, 2015 

The Honorable Dean Heller 

United States Senate 

324 Hart Senate Office Building 

Washington, DC 20510 

Dear Senators Heller and Tester: 

The Honorable Jon Tester 

United States Senate 

311 Hart Senate Office Building 

Washington, DC 20510 

The Mortgage Bankers Association (MBA)1 wishes to express support for S. 1679, the 

Flood Insurance Market Parity and Modernization Act. Your legislation addresses two of 

the primary impediments to the development of a private flood insurance market: lack of 

clarity as to what constitutes acceptable private flood insurance and uncertainty about 

the effect of private insurance on the continuous coverage requirement. 

While the intent of the Biggert-Waters Flood Insurance Reform Act of 2012 (BW-12) 

was for private flood insurance to satisfy the mandatory purchase requirement, lack of 

clarity in the statutory language had the unintended effect of making it more difficult for 

lenders to accept private flood insurance policies. Prior to the enactment of BW-12, 

lenders were permitted to accept private flood insurance to meet the mandatory 

purchase requirement of the National Flood Insurance Reform Act of 1994. 

The Federal Emergency Management Agency (FEMA) published guidance with criteria 

to assist lenders in deciding whether to accept a private flood insurance policy, though 

lenders still had the discretion to accept a policy that did not meet the FEMA criteria if 

they were satisfied that the policy adequately covered the collateral. BW-12 

incorporated the FEMA criteria into the definition of private flood insurance and required 

that private policies be "at least as broad as" a National Flood Insurance Program 

(NFIP) policy in order for a lender to accept it. The BW-12 requirements have made it 

difficult for lenders to determine whether a private policy provides the necessary 

coverage under the definition. With the risk of federal liability for accepting anything less 

1 The Mortgage Bankers Association (MBA) is the national association representing the real estate tinancc industry, an industry 

that employs more than 280,000 people in virtually every community in the country. Headquartered in Washington, D.C., the 

association works to ensure the continued strength of the nation's residential and commercial real estate markets; to expand 

homeO\vnership and extend access to affordable housing to all Americans. MBA promotes fair and ethical lending practices and 

fOsters professional excellence among real estate finance employees through a wide range of educational programs and a variety 

of publications. ll-; membership of over 2,200 companies includes all elements of real estate finance; mortgage companies, 

mortgage brokers, commercial banks, thrifts, REITs, Wall Street conduits, life insurance companies and others in ihe mortgage 

lending field. For additional infonnation, visit MBA's Web site: \V\\'W.mba.org. 
148 


99799.107

than an NFIP policy, lenders have (to date) been reluctant to accept private policies. By 

allowing individual states to determine what constitutes acceptable private coverage, S. 

1679 would add clarity to the current uncertainty amongst lenders in this regard. 

In addition, your legislation clarifies that continuous coverage by private flood insurance 

satisfies any statutory, regulatory, or administrative continuous coverage requirements. 

Under the current NFIP rules, a policyholder would likely lose any subsidy or 

"grandfathered" status if they left the NFIP and opted to obtain coverage with a private 

flood insurance policy. This has created a disincentive for consumers to choose a 

private policy in lieu of the NFIP and thwarts congressional intent to encourage the 

development of a more robust private flood insurance market. By clarifying that private 

coverage satisfies the continuous coverage requirement, S. 1679 will help to make 

these policies a more viable option for consumers. 

In sum, MBA supports S. 1679 as a simple way to effectuate congressional intent and 

encourage the growth of a competitive and sustainable private flood insurance market. 

Increased private sector involvement will expand available insurance options, lower 

costs to consumers, and reduce the federal government's exposure to flood loss over 

time. 

Sincerely, 

William P. Killmer 

Senior Vice President, Legislative and Political Affairs 

cc: The Honorable Richard Shelby, Chairman, Senate Committee on Banking, 

Housing, and Urban Affairs 

The Honorable Sherrod Brown, Ranking Member, Senate Committee on 

Banking, Housing, and Urban Affairs 
149 


99799.108

&Th,~CENTERfor INSURANCE 

National Association of {OLICY 

Insurance Commissioners .till~ _.ESEAR<::.J::!. 

July 29, 2015 

The Honorable Dean Heller 

U.S. Senate 

324 Hart Senate Office Building 

Washington, D.C. 20510 

The Honorable Dennis Ross 

U.S. House of Representatives 

229 Cannon House Office Building 

Washington, D.C. 20515 

The Honorable Jon Tester 

U.S. Senate 

311 Hart Senate Office Building 

Washington, D.C. 20510 

The Honorable Patrick Murphy 

U.S. House of Representatives 

211 Cannon House Office Building 

Washington, D.C. 20515 

Re: Flood Insurance Market Parity and Modernization Act (S. 1679fH.R. 2901) 

Dear Senator Heller, Senator Tester, Representative Ross, and Representative Murphy: 

On behalf of the National Association of Insurance Commissioners (NAIC) 1

, we write to express our 

support for the "Flood Insurance Market Parity and Modernization Act (S. 1679/H.R. 2901)" to help 

facilitate the development of a private insurance market for flood insurance. 

While the Bigger!-Waters Flood Insurance Reform Act of 2012 affirmed Congress's intent that lenders 

can accept private flood insurance as an alternative to the National Flood Insurance Program, the 

definition and prescriptive conditions have created a significant obstacle impeding the development of a 

private market. At this time, the private flood market remains relatively small, but the clarifications 

included in this legislation will assist in removing any unintended barriers to help prompt more insurers 

to enter this market if they are willing. Facilitating the entry of additional carriers into the market will 

provide consumers with access to additional options for flood insurance products, and already we have 

seen some examples where a private carrier is willing to offer comparable coverage at a lower cost than 

the NFIP. Over time, this additional competition and shift of risk from a federal program to the private 

market could help lessen the exposure of U.S. taxpayers to the types of catastrophic flood losses that 

now reside as unpaid debt on the NFIP' s books. 

As the private flood insurance market develops, it is important to clarify that state insurance regulators 

have the same authority and discretion to regulate private flood insurance as they have to evaluate other 

similar insurance products. States, after all, have over 140 years of experience supervising the business 

of insurance, protecting policyholders, and balancing affordability with solvency. 

1 Founded in 1871, the NAIC is the U.S. standard-setting and regulatory support organization created and governed by the 

chief insurance regulators from the 50 states, the District of Columbia and the five U.S. territories. Through the NAIC, state 

insurance regulators establish standards and best practices, conduct peer review. and coordinate their regulatory oversight. 

NAIC members, together with the central resources of the NAIC, form the national system of state-based insurance 

regulation in the U.S. 
150 


99799.109

We commend you for introducing this legislation to help encourage greater growth in the private flood 

insurance market, provide consumers with additional choices for flood insurance products, and make 

clear that the state insurance regulatory authorities that have long protected policyholders and allowed 

for the growth of a vibrant insurance market will apply to private flood insurance. We urge Congress to 

support this important effort and look forward to continuing to work with you as you move forward with 

this legislation. 

Sincerely, 

Monica J. Lindeen 

NAJC President 

Montana Commissioner of 

Securities and Insurance 

<UtMk1\._ -P. b...Jc. 

Sharon P. Clark 

NAIC Vice President 

Kentucky Insurance Commissioner 

The Honorable E. Benjamin Nelson 

NATC Chief Executive Officer 

United States Senator (Ret.) 

John M. Huff 

NAIC President-Elect 

Director of Missouri's Department of Insurance, 

Financial Institutions, and Professional Registration 

~. 

£~~ 

Theodore K. Nickel 

NAIC Secretary-Treasurer 

Wisconsin Insurance Commissioner 

2 
151 


99799.110

NATIONAL ASSOCIATION OF MUTUAL INSURANCE COMPANIES 

July 20, 2015 

The Honorable Dean Heller 

United States Senate 

324 Hart Senate Office Building 

Washington, DC 20510 

The Honorable Dennis Ross 

United States House of Representatives 

229 Cannon House Office Building 

Washington, DC 20515 

Dear Senators and Congressmen: 

The Honorable Jon Tester 

United States Senate 

311 Hart Senate Office Building 

Washington, DC 20510 

The Honorable Patrick Murphy 

United States House of Representatives 

211 Cannon House Office Building 

Washington, De 20515 

The National Association of Mutual Insurance Companies (NAMIC) writes in support of S. 1679 

and H.R. 2901, the Flood Insurance Market Parity and Modernization Act of 2015. This bipartisan and bicameral legislation addresses an important provision of the Biggert-Waters Flood 

Insurance Reform Act of 2012, the acceptance of private sector flood insurance policies for 

homeowners that fall under the mandatory purchase requirement of the National Flood 

Insurance Program (NFIP). 

NAMIC supported the Biggert-Waters Flood Insurance Reform Act of 2012 as it passed with the 

recognition by Congress that the NFIP must charge actuarial risk based rates in order for the 

program to become financially solvent. Actuarial risk based rates are a necessary requirement 

for any insurer to consider underwriting a peril, whether related to natural catastrophes or 

otherwise. The NFIP's subsidized rates were a key barrier to the availability of private sector 

coverage for flood insurance, except in the case of additional coverage above the NFIP's 

coverage limits. With the implementation of actuarial risk based rates, outside of grandfathered 

properties, insurers have begun to offer private sector flood insurance policies and more 

considering entering the marketplace. State legislatures such as Florida and Massachusetts 

have recently addressed the increased interest by the private sector to underwrite flood 

insurance by passing laws aimed to encourage further development. 

S. 1679 and H.R. 2901 makes important clarifications that will help foster development in the 

private marketplace by defining acceptable private sector flood insurance policies that would 

meet the NFIP's mandatory purchase requirement. The legislation provides clarifies that a 

private sector flood insurance policy is one issued by an insurance company that is licensed, 

admitted, or otherwise approved to engage in the business of insurance in the State by the 

appropriate state insurance regulator of that state, is eligible as a non-admitted insurer in that 

state, or issued by and insurance company that is not otherwise disapproved as a surplus lines 

insurer by that state. The legislation also defines that private sector flood insurance comply with 

applicable states laws and regulations. 

S. 1679 and H.R. 2901 would also allow a property owner to purchase private sector flood 

insurance coverage equal to the outstanding principal balance of the owner's property to meet 

the mandatory purchase requirement. This change could provide an incentive for innovative 

flood insurance products for property owners willing to risk only insuring the remainder of their 

outstanding loan. It could also foster development of private sector options for property owners 

that do not fall under the mandatory purchase requirement and would like varying levels of flood 

insurance coverage. While we believe it is a consumer's choice as to the level of insurance they 
152 


99799.111

feel is adequate for them, we also strongly believe consumers should insure themselves fully 

against flood risks posed to them so as to avoid financial hardship when a natural catastrophe 

occurs. 

NAMIC thanks you for the introduction of S. 1679 and H.R. 2901, the Flood Insurance Market 

Parity and Modernization Act of 2015. 

s;::_~ 

ran de 

Semor Vice President- Federal and Political Affairs 

National Association of Mutual Insurance Companies 
153 


99799.112

National Association of 

Professional Surplus lines 

Offices, ltd. 

The Honorable Dean Heller 

U.S. Senate 

324 Hart Senate Office Building 

Washington, D.C. 20510 

Dear Senators Heller and Tester: 

4131 N. MulberryDr.,Ste.ZOO 

Kansas0ty,M064116 

816.741.3910 

F 816.7415409 

The Honorable Jon Tester 

U.S. Senate 

311 Hart Senate Office Building 

Washington, D.C. 20510 

On behalf of its membership, the National Association of Professional Surplus Unes Offices {NAPSlO) is 

pleased to supportS. 1679, the Flood Insurance Market Parity and Modernization Act of 2015. NAPSlO 

appreciates your continued leadership and efforts to ensure that consumers have access to private flood 

insurance options. 

NAPSlO is the national trade association representing the surplus lines industry and the wholesale 

insurance distribution system. NAPSlO's membership consists of approximately 400 brokerage member 

firms, 100 company member firms and 200 associate member firms, all of whom operate over 1,500 

offices representing tens of thousands of individual brokers, insurance company professionals, 

underwriters and other insurance professionals in the SO states and the District of Columbia. 

The Flood Insurance Market Parity and Modernization Act of 2015 amends the definition of private flood 

insurance to ensure surplus lines insurers are eligible to offer private market solutions and alternatives 

to consumers in need of unique and complex flood risks. Although surplus lines insurance companies are 

currently allowed to provide private flood insurance, the definition of private flood insurance should be 

revised to remove any uncertainty that surplus lines insurance companies are eligible to provide 

insurance in the insured's home state, in accordance with the Nonadmitted and Reinsurance Reform Act 

of 2010, and to ensure policyholders access to the surplus lines market alternatives. 

Often called the "safety valve" of the insurance industry, surplus lines insurers {or nonadmitted insurers) 

fill the need for coverage in the marketplace by insuring those risks that are declined by the standard 

underwriting and pricing processes of standard/admitted insurance carriers. In this way, NAPSlO does 

not anticipate expansion in the surplus lines market, except to the extent the demand for flood 

insurance exceed that available from the NFIP or standard market. By ensuring the surplus lines industry 

can continue to participate in this fashion, your legislation ensures that consumers have private options 

available to them, should they need it. 

NAPSlO again thanks and congratulates you on the introduction of common-sense legislation that helps 

preserve consumers' access to private flood insurance solutions. 
154 


99799.113

NATIONAL 

ASSOCIATION of 

REALTORs• 

lhlt: \ St~;w.n 

(]1lt·fE-;t·nJUY,; ()(flcn 

GOVERNMENT AFFAIRS 

DIVISJON 

\\,.·w.Rf_\\.TOR.0rg 

July 20, 2015 

The Honorable Dean Heller 

Cnited States Senate 

324 Hart Senate Office Building 

\Xlashington, D.C. 20510 

The I Ionorable Dennis Ross 

United States House of Representatives 

229 Cannon House Office Building 

\Xlashington, D.C. 20515 

Dear Senators and Representatives: 

The I Iooorable Jon Tester 

U.S. Senate 

111 Hart Senate Office Building 

Washington, D.C. 20510 

The llonorable Patrick Murphy 

Cnited States House ofRcprcsentat.i\·es 

211 Cannon House Office Building 

Washington, D.C. 20515 

On behalf of over 1 million members of the National Association of REALTORS® (NAR), 

thank you for introducing the Flood lnsurance Market Parity and !\lodcrnization Acr of 

2015 (S. 1679/HR 2901). We support tllis legislation as a solid first step in the development 

of private market options where property owners lack access to affordabh.~ coverage under 

the National Flood Insurance Program (NFIP). 

Of particular note, S. 1679/HR 2901 would clarify that private flood insurance as well as 

N.FIP coverage satisfies the federal requirement to maintain a minimum amount of flood 

insurance for the full life of a federally related mortgage in the 1 00-ycar floodplain. NAR 

strongly supports this "continuous coverage" provision. This would prevent the NFIP from 

hiking rates, removing the dismcentivc should consumers wish to flood insure in the private 

market. It also protects com;umers by preserving the NFIP as a v1ablc option and keeping 

them from becoming stranded, should private insurers decide to raise rates or drop coverage 

after major floods. 

These bilL" would also remove the federal requirement that non-NFlP policies offer the 

same or better coverage than the NFIP. \\le don't see the need for an additional layer of 

federal oversight and red tape for the state licensed or admitted insurance companies since 

their coverage terms and insurance rates arc already strictly regulated. The state is in the best 

pmit.ion to protect these insurance consumers. f lowever, it is unclear whether and to what 

extent states wou]d have the authority to enforce minimum flood insurance coverage 

requirements in the non-admitted or "surplus lines" market. \Ve also note that the lender 

disclosure requirements have been removed as well as provisions allowing federal mortgage 

programs (Fannie Mac, l1

reddie Mac, I;I IA, etc.) and the financial regulators (FDIC, Federal 

Reserve, etc.) to set financial solvency and claims-paying conditions for private flood 

insurance companies covering federally related mortgages. 

Again, we supportS. 1679/I-fR 2901 and '\VC look forward to working with you to enhance 

some of the bill's provisions and generate congressional support as the bill moves through 

the legislative process. 

Sincerely, 

ee.P~ 

Chris Polychron 

2015 President, National Association of REALTORs® 
155 


99799.114

January 13, 2016 

The Honorable Blaine Luetkemeyer 

Chairman 

Subcommittee on Housing and Insurance 

House Financial Services Committee 

2440 Rayburn House Office Building 

Washington, DC 20515 

The Honorable Emanuel Cleaver II 

Ranking Member 

Subcommittee on Housing and Insurance 

House Financial Services Committee 

2335 Rayburn House Office Building 

Washington, DC 20515 

Dear Chairman Luetkemeyer and Ranking Member Cleaver: 

The National Multifamily Housing Council (NMHC) and National Apartment Association (NAA) 

applaud the Subcommittee for calling a hearing on "How to Create a More Robust and Private 

Flood Insurance Marketplace." We appreciate your efforts to explore ways to expand access to 

flood insurance coverage beyond the National Flood Insurance Program (NFIP) in an attempt to 

reduce taxpayer liability and provide affordable coverage options to property owners where none 

currently exist. 

For more than 20 years, NMHC and NAA have partnered in a joint legislative program to provide 

a single voice for America's apartment industry. Our combined memberships are engaged in all 

aspects of the apartment industry, including ownership, development, management and finance. 

NMHC represents the principal officers of the apartment industry's largest and most prominent 

firms. As a federation of nearly 170 state and local affiliates, NAA is comprised of over 69,000 

members representing more than 8.1 million apartment homes throughout the United States and 

Canada. 

The NFIP has approximately 5.3 million policies in almost 22,000 communities across the 

country. The program provides an insurance market alternative to disaster relief funded 

continually by taxpayers. The NFIP ensures that affordable flood insurance is available at all 

times, in all market conditions for every at-risk rental property. These include more than just 

high rise multifamily properties in urban centers along the East and West coasts of our country 

but extend across every state to include low-rise structures and even single family rental homes. 

Ensuring that all types of rental property continue to have access to affordable, quality flood 

insurance through the NFIP is a top priority for our membership to not only protect their 

property investment but to help manage the increasing costs of providing housing. 

While we strongly support the continued role of the NFIP, our industry acknowledges that the 

program does not come without its challenges and we agree that further reforms are necessary to 

protect the long-term financial viability of the program. Therefore, we support the 

Subcommittees work to foster a more robust private flood insurance marketplace that could 

lessen the fiscal pressure on the NFIP. Further, NMHC/NAA applauds the efforts of 

Representatives Dennis Ross and Patrick Murphy in introducing H.R. 2901, the Flood Insurance 

Market Parity and Modernization Act. This critical piece of legislation would expand coverage 

options for at-risk property owners by clarifying that flood insurance offered by private carriers 

outside of the NFIP meets the mandatory purchase requirements in place today. Of particular 

note is the bill's language that ensures both private and NFIP coverage satisfies the federal 

government's requirement of "continuous coverage" and protects policyholders from seeing rate 

hikes should they wish to return to the NFIP coverage at a later date. We support the bill as 

introduced and appreciate the continued bipartisan work being done to strengthen the legislation 

AP/\RTf-,1ENTS. VVF LlVE HERE. NMHC/NAAJointLegtslativ~?rogram 

18:50 M Street, NW. Suite 540 I 202 974 230:) WeAreApattments.org 
156 


99799.115

even further. NMHC/NAA support increasing property owner's access to alternative options of 

coverage outside of the NFIP as a way to increase market competition and make coverage more 

affordable for multifamily firms across the nation. 

We thank you for the opportunity to present the views of the multifamily industry as you look to 

expand consumer access to affordable flood insurance coverage and work towards reauthorizing 

and reforming the NFIP. The NFIP serves an important purpose and is a valued and necessary 

risk management tool for apartment owners and managers. We believe the private sector can 

share in that role to a larger degree and we stand ready to support the efforts of Congress to make 

that happen while ensuring the long-term viability of the NFIP. 

Sincerely, 

~ Douglas M. Bibby 

President 

National Multifamily Housing Council 

Douglas S. Culkin, CAE 

President & CEO 

National Apartment Association 

cc: Members of the House Financial Services Committee 
157 


99799.116

INSURANCE 

AGENTS 

July 7, 2015 

loco I 

Agents 

Serving 

Main Street 

America"' 

Senator Dean Heller 

United States Senate 

Washington, D.C. 20510 

Congressman Dennis Ross 

U.S. House of Representatives 

Washington, D.C. 20515 

Senator Jon Tester 

United States Senate 

Washington, D.C. 20510 

Congressman Patrick Murphy 

U.S. House of Representatives 

Washington, D.C. 20515 

Dear Senators Heller and Tester and Representatives Ross and Murphy: 

On behalf of the National Association of Professional Insurance Agents (PIA National), we thank you 

for introducing the Flood Insurance Market Parity and Modernization Act of 2015 (S. 1679/ H.R. 

2901). PIA represents independent insurance agents in all 50 states, Puerto Rico and the District of 

Columbia. While PIA National opposes outright, immediate privatization of the National Flood 

Insurance Program (NFIP) without a viable structure, we support sensible solutions for growing the 

private flood insurance market. 

PIA members are insurance professionals that provide personal support, advice, and counsel to their 

customers. Currently, there has been a pervasive rejection of private primary flood insurance by 

lenders due to the fact that they are unsure of the validity of privately issued flood insurance. That is 

why it is critical that agents, lenders, and consumers have a simple and clear definition of what is 

acceptable private flood insurance. This legislation provides a solution by defining private flood 

insurance as a policy that provides flood insurance coverage issued by an insurance company that is 

licensed and approved by the state insurance regulator to engage in the business of insurance in the 

state in which the insured building is located. lt also includes a critical provision to ensure that private 

flood insurance can be used to satisfy the NFIP's continuous coverage requirements. 

PIA National greatly appreciates your continued dedication to this issue and your strong advocacy for 

the role of agents and brokers in the flood insurance market. We look forward to continue working 

with you on this matter. If PIA National can be of any additional assistance, please contact Jon Gentile, 

PIA National director of federal affairs, at jonge@pianet.org. 

Sincerely, 

Mike Becker 

Executive Vice President and CEO 

PIA National 
158 


99799.117

REINSURANCf.,\SSOCIATION OF A \I ERIC\ 

FOR IMMEDIATE RELEASE 

June 30, 2015 

1445 New York Avenue, N.W, 7'h Hoor 

Washing/on, D_C. 20005 

www.reinsurance.org 

FOR FURTHER INFORMATION 

Barb Carroll, RAA 

202.783.8390 

RAA SUPPORTS LEGISLATION TO INCREASE PRIVATE FLOOD INSURANCE OPTIONS 

WASHINGTON, D.C. Senators Dean Heller (R-NV) and Jon Tester (D-MT) have reintroduced the 

Flood Insurance Market Parity and Modernization Act, legislation that will provide Americans with more 

access to high-quality flood insurance coverage. In introducing the legislation, Senator Heller 

commented, "For many property owners in America, having access to quality flood insurance is criticaL 

Many Americans could have access to more flood insurance coverage options through the private market 

if Congress acts. Our legislation will open those doors." Heller went on to say, "The legislation Senator 

Tester and I introduced today provides a clear definition of what is acceptable private flood insurance as 

determined by state insurance commissioners in order to provide more options. I have always said 

providing more choices jumpstarts competition, reduces costs for consumers, and increases quality. The 

same is true when it comes to flood insurance." 

Concurrently, Representatives Dennis Ross (R-FL) and Patrick Murphy (D-FL) introduced The Flood 

Insurance Market Parity and Modernization Act in the House. Rep. Ross commented, "More choices can 

mean better coverage and cheaper policies for homeowners. This is especially beneficial to Floridians 

now that we are officially in hurricane season." 

Frank Nutter, president of the Reinsurance Association of America, commended the introduction of the 

legislation in both chambers, noting "Reinsurers have an appetite to underwrite flood risk and this 

legislation will facilitate the development of a private insurance market for flood risk. We 

applaud Sens. Tester and Heller and Reps. Ross and Murphy for introducing this legislation, 

which will provide homeowners with more options, and, importantly, reduce taxpayer liability 

from the federal government's role in providing flood insurance through the National Flood 

Insurance Program.'' 

The Reinsurance Association of America is the leading trade association of property and casualty reinsurers doing business in the 

United States. RAA membership is diverse, including reinsurance underwriters and intennediarics licensed in the U.S. and those 

that conduct business on a cross border basis. The RAA represents its members before state, federal and international bodies. 

[End] 
159 


99799.118

July 21,2015 

The Honorable Dennis Ross 

229 Cannon House Office Building 

Washington, D.C. 20515 

Dear Representative Ross: 

SmarterSafer-- a broad based coalition of taxpayer advocates, environmental groups, insurance 

interests, housing organizations, and mitigation advocates-- applauds your efforts to ensure that 

consumers can purchase flood insurance in the private market if they choose. For many years, 

the federal government has been the primary provider of flood coverage in the United 

States. The National Flood Insurance Program (NFIP) has provided critical coverage, but 

because of deep subsidies embedded in the program for decades, it has done so at great expense 

to taxpayers, it has harmed the environment, and it has provided the wrong market signals, 

actually encouraging people to build in harm's way. 

To combat these problems, Congress made changes to rates for certain properties, slowly 

phasing in risk-based rates for a segment of policies and allowing private flood coverage in 

addition to other reforms. In Biggert-Waters, Congress made clear that private flood coverage 

should be permitted, and the Grimm-Waters bill did not change this commitment. Since the 

passage of flood reform, private insurers have started to consider offering flood 

policies. SmarterSafer believes this should be encouraged; Consumers should be able to choose 

private flood policies, potentially with terms and coverage that can be tailored to the interests of 

the consumer, as well as better incentives for mitigation and resiliency. In fact, private flood 

policies could allow property owners to purchase enough coverage to ensure they can rebuild 

after a storm, not constrained by NFIP limits or by the amount of the mortgage. 

The Ross-Murphy and Tester-Heller bills would ensure that private flood insurance counts for 

purposes of the mandatory purchase requirements. SmarterSafer supports these efforts and will 

work to see them passed into law. The coalition is appreciative that one of the hallmarks of the 

US insurance regulatory system is policyholder protection, and we support private flood 

insurance in that context. We believe that as policies move to the private sector, Congress must 

look for ways to ensure that communities continue to focus on preparedness and mitigation, a 

requirement currently part ofNFIP and one worthy of further policy action. 

We look forward to working with you on this matter. 

Sincerely, 

SmarterSafer.org 
160 


99799.119

MEMBERS 

Environmental Organizations 

American Rivers 

Center for Climate and Energy Solutions (C2ES) 

Ceres 

Conserv America 

Defenders of Wildlife 

Natural Resources Defense Council 

National Wildlife Federation 

Sierra Club 

Consumer and Taxpayer Advocates 

Coalition to Reduce Spending 

R Street 

National Taxpayers Union 

Taxpayers for Common Sense 

Taxpayers Protection Alliance 

Insurer Interests 

Allianz of America 

Association of Bermuda Insurers and Reinsurers 

The Chubb Corporation 

Liberty Mutual Group 

National Association of Mutual Insurance Companies (NAMIC) 

National Flood Determination Association 

Reinsurance Association of America 

SwissRe 

USAA 

Mitigation Interests 

Natural Hazard Mitigation Association 

National Fire Protection Association 

Housing 

National Housing Conference 

National Leased Housing Association 

ALLIED ORGANIZATIONS 

American Consumer Institute 

Association of State Floodplain Managers 

Center for Clean Air Policy 

Friends of the Earth 

Institute for Liberty 

Property Casualty Insurers Association of America 

Union of Concerned Scientists 

Zurich 

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