3B2 EDGAR HTML -- c56686_10k.htm



UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549

FORM 10-K


 

 

 

S

 

ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the fiscal year ended December 31, 2008

OR

 

 

 

£

 

TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the transition period from    to   

Commission file number 001-33245
EMPLOYERS HOLDINGS, INC.

(Exact name of registrant as specified in its charter)

 

 

 

NEVADA
(State or other jurisdiction of
incorporation or organization)

 

04-3850065
(IRS Employer
Identification No.)

10375 Professional Circle, Reno, Nevada 89521
(Address of principal executive offices and zip code)

(888) 682-6671
(Registrant’s telephone number, including area code)

Securities registered pursuant to Section 12(b) of the Act:

 

 

 

 Title of each class  

 

Name of each exchange on which registered

Common Stock, $0.01 par value per share

 

New York Stock Exchange

Securities registered pursuant to Section 12(g) of the Act: None

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes  £ No  S

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Exchange Act. Yes  £ No  S

Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes  S No  £

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K.  £

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a small reporting company. See definitions of “large accelerated filer,” “accelerated filer,” “non-accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

Large accelerated filer  S     Accelerated filer  £     Non-accelerated filer  £     Smaller reporting company  £

The aggregate market value of the voting and non-voting common equity held by non-affiliates of the registrant as of June 30, 2008 was $1,019,297,705.

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes  £ No  S

 

 

 

 Class  

 

 February 20, 2009  

Common Stock, $0.01 par value per share

 

48,830,140 shares outstanding

DOCUMENTS INCORPORATED BY REFERENCE

Portions of the registrant’s Definitive Proxy Statement relating to the 2009 Annual Meeting of Stockholders are incorporated by reference in Items 10, 11, 12, 13 and 14 of Part III of this report.




TABLE OF CONTENTS

 

 

 

 

 

 

 

 

 

Page No.

 

 

 

   

 

 

 

   

 

 

Forward-Looking Statements

 

 

 

3

 

PART I

Item 1

 

Business

 

 

 

5

 

Item 1A

 

Risk Factors

 

 

 

39

 

Item 1B

 

Unresolved Staff Comments

 

 

 

53

 

Item 2

 

Properties

 

 

 

54

 

Item 3

 

Legal Proceedings

 

 

 

54

 

Item 4

 

Submission of Matters to a Vote of Security Holders

 

 

 

54

 

PART II

Item 5

 

Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities

 

 

 

55

 

Item 6

 

Selected Financial Data

 

 

 

58

 

Item 7

 

Management’s Discussion and Analysis of Financial Condition and Results of Operations

 

 

 

62

 

Item 7A

 

Quantitative and Qualitative Disclosures About Market Risk

 

 

 

98

 

Item 8

 

Financial Statements and Supplementary Data

 

 

 

101

 

Item 9

 

Changes in and Disagreements with Accountants on Accounting and Financial Disclosure

 

 

 

141

 

Item 9A

 

Controls and Procedures

 

 

 

141

 

Item 9B

 

Other Information

 

 

 

141

 

PART III

Item 10

 

Directors, Executive Officers and Corporate Governance

 

 

 

142

 

Item 11

 

Executive Compensation

 

 

 

142

 

Item 12

 

Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters

 

 

 

142

 

Item 13

 

Certain Relationships and Related Transactions, and Director Independence

 

 

 

142

 

Item 14

 

Principal Accountant Fees and Services

 

 

 

142

 

PART IV

Item 15

 

Exhibits and Financial Statement Schedules

 

 

 

143

 

2


FORWARD-LOOKING STATEMENTS

This report contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and 21E of the Securities Exchange Act of 1934. You should not place undue reliance on these statements. These forward-looking statements include those related to our expected financial position, business, financing plans, litigation, future premiums, revenues, earnings, pricing, investments, business relationships, expected losses, loss reserves, acquisitions, competition and rate increases with respect to our business and the insurance industry in general. These forward-looking statements reflect our views with respect to future events and financial performance. The words “believe,” “expect,” “plan,” “intend,” “project,” “estimate,” “may,” “should,” “will,” “continue,” “potential,” “forecast” and “anticipate” and similar expressions identify forward-looking statements. Although we believe that these expectations reflected in such forward-looking statements are reasonable, we can give no assurance that the expectations will prove to be correct. Actual results may differ from those expected due to risks and uncertainties, including those discussed in “Risk Factors” in Item 1A of this report and the following:

 

 

 

 

impact of the unprecedented volatility and uncertainty in the financial markets;

 

 

 

 

adequacy and accuracy of our pricing methodologies;

 

 

 

 

our dependence on several concentrated geographic areas and on the workers’ compensation market;

 

 

 

 

developments in the frequency or severity of claims and loss activity that our underwriting, reserving or investment practices do not anticipate based on historical experience or industry data;

 

 

 

 

changes in rating agency policies or practices;

 

 

 

 

negative developments in the workers’ compensation insurance market;

 

 

 

 

increased competition on the basis of coverage availability, claims management, safety services, payment terms, premium rates, policy terms, types of insurance offered, overall financial strength, financial ratings and reputation;

 

 

 

 

changes in the availability, cost or quality of reinsurance and failure of our reinsurers to pay claims timely or at all;

 

 

 

 

changes in regulations or laws applicable to us, our policyholders or the agencies that sell our insurance;

 

 

 

 

changes in legal theories of liability under our insurance policies;

 

 

 

 

changes in general economic conditions, including interest rates, inflation and other factors;

 

 

 

 

effects of acts of war, terrorism or natural or man-made catastrophes;

 

 

 

 

non-receipt of expected payments;

 

 

 

 

performance of the financial markets and their effects on investment income and the fair values of investments;

 

 

 

 

failure of our information technology or communications systems;

 

 

 

 

adverse state and federal judicial decisions;

 

 

 

 

litigation and government proceedings;

 

 

 

 

loss of the services of any of our executive officers or other key personnel;

 

 

 

 

cyclical nature of the insurance industry;

 

 

 

 

investigations into issues and practices in the insurance industry;

 

 

 

 

changes in demand for our products;

 

 

 

 

the operations acquired from AmCOMP Incorporated (AmCOMP) will not be integrated successfully; and

 

 

 

 

disruption from the AmCOMP transaction making it more difficult to maintain relationships with customers, employees, agents and producers.

3


The foregoing factors should not be construed as exhaustive and should be read in conjunction with the other cautionary statements that are included in this report.

These forward-looking statements are subject to certain risks and uncertainties that could cause actual results to differ materially from historical or anticipated results, depending on a number of factors. These risks and uncertainties include, but are not limited to, those listed under the heading “Risk Factors” in Item 1A of this report. All subsequent written and oral forward-looking statements attributable to us or individuals acting on our behalf are expressly qualified in their entirety by these cautionary statements. We caution you not to place undue reliance on these forward-looking statements, which speak only as of the date of this report. We undertake no obligation to publicly update or revise any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by law. Before making an investment decision, you should carefully consider all of the factors identified in this report that could cause actual results to differ.

NOTE REGARDING RELIANCE ON STATEMENTS IN OUR CONTRACTS

In reviewing the agreements included as exhibits to any of the documents incorporated by reference into this Annual Report on Form 10-K, please remember that they are incorporated to provide you with information regarding their terms and are not intended to provide any other factual or disclosure information about the Company, its subsidiaries or the other parties to the agreements. The agreements contain representations and warranties by each of the parties to the applicable agreement. These representations and warranties have been made solely for the benefit of the other parties to the applicable agreement and:

 

 

 

 

should not in all instances be treated as categorical statements of fact, but rather as a way of allocating the risk to one of the parties to the agreement if those statements prove to be inaccurate;

 

 

 

 

have been qualified by disclosures that were made to the other party in connection with the negotiation of the applicable agreement, which disclosures are not necessarily reflected in the agreement;

 

 

 

 

may apply standards of materiality in a way that is different from what may be viewed as material to investors; and

 

 

 

 

were made only as of the date of the applicable agreement or such other date or dates as may be specified in the agreement and are subject to more recent developments.

Accordingly, these representations and warranties may not describe the actual state of affairs as of the date they were made or at any other time.

4


PART I

Item 1. Business

Overview

Employers Holdings, Inc. (EHI) is a Nevada holding company and is the successor to EIG Mutual Holding Company (EIG), which was incorporated in Nevada in 2005. EHI’s principal executive offices are located at 10375 Professional Circle, in Reno, Nevada. Our insurance subsidiaries are domiciled in California, Florida and Nevada. Unless otherwise indicated, all references to “we,” “us,” “our,” the “Company” or similar terms refer to EHI together with its subsidiaries.

We are a specialty provider of workers’ compensation insurance focused on select small businesses engaged in low to medium hazard industries. Workers’ compensation is a statutory system under which an employer is required to provide coverage for its employees’ medical, disability, vocational rehabilitation and death benefit costs for work-related injuries or illnesses. We distribute our products almost exclusively through independent agents and brokers and through our strategic partnerships and alliances. We operate in a single reportable segment with 17 territorial offices serving 29 states, including concentrations in California, Florida and Nevada.

Our results of operations for 2008 include the acquired operations of AmCOMP Incorporated (AmCOMP) for the period November 1, 2008 through December 31, 2008. Assets and liabilities at December 31, 2008, include the tangible and intangible identifiable assets acquired and liabilities assumed based on an allocation of the total purchase price of the AmCOMP transaction to estimated fair values with the excess of the purchase price over the aggregate fair values recorded as goodwill.

Our insurance subsidiaries have each been assigned an A.M. Best Company (A.M. Best) rating of “A-” (Excellent), the fourth highest of sixteen possible ratings, with a “stable” financial outlook. This A.M. Best rating is a financial strength rating designed to reflect our ability to meet our obligations to policyholders. This rating does not reflect our ability to meet non-insurance obligations and is not a recommendation to purchase or discontinue any policy or contract issued by us or to buy, hold or sell our securities.

We had net premiums written of $312.8 million and $338.6 million, total revenues of $396.8 million and $429.9 million and net income of $101.8 million and $120.3 million for the years ended December 31, 2008 and 2007, respectively. Our combined ratio on a statutory basis was 93.3% for the year ended December 31, 2008 (elsewhere in this report, unless otherwise stated, the term “combined ratio” refers to a calculation based on U.S. generally accepted accounting principles (GAAP)). For the purpose of calculating our combined ratio on a statutory basis, the results of operations of AmCOMP are included for the 12 months ended December 31, 2008. Our combined ratio on a statutory basis for the five years ended December 31, 2007 was 84.4%. This ratio was lower than the industry composite combined ratio calculated by A.M. Best for U.S. insurance companies having more than 50% of their premiums generated by workers’ compensation insurance products. The industry combined ratio on a statutory basis for these companies was 100.7% during the same five year period. Companies with lower combined ratios than their peers generally experience greater profitability. We had total assets of $3.8 billion at December 31, 2008.

5


Our corporate structure is as follows:

The states of domicile of our four insurance subsidiaries are as follows:

 

 

 

 

 

State of Domicile

Employers Insurance Company of Nevada (EICN)

 

Nevada

Employers Compensation Insurance Company (ECIC)

 

California

Employers Preferred Insurance Company (EPIC)(1)

 

Florida

Employers Assurance Company (EAC)(2)

 

Florida


 

 

(1)

 

 

 

Previously AmCOMP Preferred Insurance Company

 

(2)

 

 

 

Previously AmCOMP Assurance Corporation

In January 2009, we began implementation of a strategic restructuring plan to achieve the corporate and operational objectives of the acquisition and integration of AmCOMP, and in response to current economic conditions. The restructuring plan includes staff reductions of approximately 150 employees, or 14% of our total workforce, and consolidation of corporate functions into our Reno, Nevada headquarters. As a result of the restructuring plan, we expect to achieve pre-tax cost savings of approximately $12 million in 2009 and annualized pre-tax cost savings of $20 to $22 million beginning in 2010. We expect to incur pre-tax restructuring charges of approximately $3.0 million in the first quarter of 2009. The staff reductions are anticipated to be largely completed by mid-year 2009.

History

On January 1, 2000, our Nevada insurance subsidiary, EICN, assumed all the assets, liabilities and operations of the Nevada State Industrial Insurance System (the Fund), including in-force policies and historical liabilities associated with the Fund for losses prior to January 1, 2000, pursuant to legislation enacted in the 1999 Nevada legislature. In connection with that assumption, our Nevada insurance subsidiary assumed the Fund’s rights and obligations under a retroactive 100% quota share reinsurance agreement (referred to as the LPT Agreement) which the Fund had entered into with third party reinsurers. The LPT Agreement substantially reduced the exposure to losses for pre-July 1995 Nevada insured risks. The Fund, which was an agency of the State of Nevada, had over 80 years of workers’ compensation experience in Nevada. Subsequently, through July 2002, we operated exclusively in Nevada.

We formed a wholly-owned stock corporation incorporated in California, ECIC, and on July 1, 2002 we acquired the renewal rights to a book of workers’ compensation insurance business, and certain other tangible and intangible assets from Fremont Compensation Insurance Group and its affiliates, or collectively, Fremont. The book of business we acquired from Fremont was primarily comprised of accounts in California and, to a lesser extent, in Colorado, Idaho, Montana and Utah. As a result of this transaction, we were able to establish our important relationships and distribution agreements with ADP, Inc. (ADP), and Anthem Blue Cross, an operating subsidiary of Wellpoint, Inc. (Wellpoint).

In 2003, EICN and ECIC, as well as our wholly-owned subsidiaries Employers Occupational Health, Inc. (EOH), and Elite Insurance Services, Inc. (Elite), began to operate under the Employers

6


Insurance Group trade name. On April 1, 2005, we reorganized into a mutual insurance holding company, EIG Mutual Holding Company, wholly-owned by the policyholders of EICN.

Effective February 5, 2007, we completed an initial public offering (IPO), which occurred in conjunction with our conversion from a mutual insurance holding company owned by our policyholder members to a Nevada stock corporation owned by our public stockholders, and changed our name to “Employers Holdings, Inc.” and all of the membership interests in EIG were extinguished. In exchange, eligible members of EIG received shares of our common stock or cash.

On October 31, 2008, we acquired 100% of the outstanding common stock of AmCOMP. The acquisition included two insurance subsidiaries and three other subsidiaries: EIG Services, Inc. (formerly Pinnacle Administrative Company), Pinnacle Benefits, Inc. and AmSERV, Inc. The newly acquired insurance subsidiaries, EPIC and EAC, are mono-line workers’ compensation insurance companies focused on small businesses engaged in low to medium hazard industries, primarily in southeastern and midwestern states, with a concentration in Florida.

Our Strategies

We plan to continue pursuing profitable growth and favorable return on equity through the following strategies:

Maintain Focused Operations

We focus on providing workers’ compensation insurance to select small businesses engaged in low to medium industry defined hazard groups. We believe this focus provides us with a unique competitive advantage because we are able to gain in-depth customer and market knowledge and expertise. We execute our business strategy through regional managers and their local teams who have a deep understanding of the business climate and our targeted policyholders in the states in which we operate. Our focus on small businesses also enables us to provide individualized attention to our customers, which we believe leads to higher satisfaction and policy retention.

Maintain Focus on Underwriting Profitability

We intend to maintain focus on disciplined underwriting and continue to pursue profitable growth opportunities across market cycles. We carefully monitor market trends to assess new business opportunities that we expect will meet our pricing and risk standards.

We employ a disciplined, conservative and highly automated underwriting approach designed to individually select specific types of businesses that we believe will have fewer and less costly claims relative to other businesses in the same industry defined hazard group. Within each industry defined hazard group, our underwriters use their local market expertise and disciplined underwriting to assess employers and risks on an individual basis and to select those types of employers and risks that allow us to generate attractive returns. We believe that, as a result of our disciplined underwriting standards, we are able to price our policies competitively and profitably.

Continue to Grow in Our Existing Markets

We plan to continue to seek profitable growth in our existing markets by addressing the workers’ compensation insurance needs of small businesses, which we believe represent a large and profitable market segment. We intend to expand our presence in our existing markets, including significant new markets serviced by our two newly acquired insurance subsidiaries, EPIC and EAC, by seeking to expand our relationships with agents and by entering into additional strategic partnerships and alliances. We believe that the A.M. Best “A-” (Excellent) financial strength rating issued to EPIC and EAC, which were not previously rated, will also create additional growth opportunities.

In the states in which we operate, the workers’ compensation market for small businesses is not highly concentrated, with a significant portion of premiums being written by numerous insurance companies with small individual market shares. We believe that our focus on workers’ compensation

7


insurance, our disciplined underwriting and risk selection, and our loss control and claims management expertise for small businesses position us to profitably increase market share in our existing markets.

Capitalize on Strategic Partnerships and Alliances to Reach Target Markets

We intend to continue to leverage our partnerships and alliances, taking into account the adequacy of premium rates, market dynamics, the labor market, political and economic conditions and the regulatory environment. Our strategic partnerships with ADP and Wellpoint have allowed us to access new customers and to write attractive business in an efficient manner. We are actively pursuing additional strategic partnership opportunities.

Capitalize on the Flexibility of Our Corporate Structure

As a publicly traded company, we have access to capital and equity markets. We believe this gives us enhanced financial and strategic flexibility to consider acquisitions, joint ventures and other strategic transactions, as well as new product offerings that make strategic sense for our business while achieving our goal of profitable growth.

Maintain Capital Strength

We believe that our financial strength is an important factor for independent agents, brokers and customers selecting our products. We intend to manage our capital prudently relative to our overall risk exposure, establishing adequate loss reserves to protect against future adverse developments while seeking to grow profits and long-term stockholder value. We will continue to fund the growth of our business and invest in infrastructure and may return capital to stockholders, that may in the future include stock repurchases, in order to achieve an optimal level of overall leverage to support our underwriting activities and to maintain our financial strength and ratings over the long-term.

As a result of the volatility in the financial markets and the tightening of the credit markets, we have taken steps to improve liquidity, including increasing levels of short-term investments and suspending share repurchases. We believe that opportunities to further expand our insurance operations and to invest at attractive returns will be available to us in the future. We believe that increasing liquidity and preserving available cash now will allow us greater flexibility in reacting to changes in the investment markets in the future.

Leverage Infrastructure, Technology and Systems

We believe we have an efficient, cost-effective and scalable infrastructure that complements our geographic reach and business model. We have developed a highly automated underwriting system, EACCESS®, which allows for the electronic submission and review of insurance applications that employs our underwriting standards and guidelines. We believe EACCESS reduces transaction costs and provides for more efficient and timely processing of applications for small policies that meet our standards. We believe this saves our independent agents and brokers considerable time in processing customer applications and maintains our competitiveness in our target markets. In January 2009, we implemented a new claims system that is designed to improve efficiency and enhance our ability to support claims processing. We will continue to invest in technology and systems across our business to maximize efficiency and create increased capacity that will allow us to lower our expense ratios while growing premiums.

Industry

The principal concept underlying workers’ compensation is that an employee injured in the course of his or her employment has only the legal remedies available under workers’ compensation laws and does not have any other recourse against his or her employer. Generally, workers are covered for injuries that occur within the course and scope of their employment. An employer’s obligation to pay workers’ compensation benefits does not depend on any negligence or wrongdoing on the part of the employer and exists even for injuries that result from the negligence or wrongdoings of another person,

8


including the employee. The level of benefits varies by state, the nature and severity of the injury or disease and the wages of the injured worker.

Workers’ compensation insurance policies generally provide that the insurance company will pay all benefits that the insured employer may become obligated to pay under applicable workers’ compensation laws. Each state has a statutory, regulatory and adjudicatory system that sets the amount of wage replacement to be paid, determines the level of medical care required to be provided, establishes the degree of permanent impairment and specifies the options in selecting healthcare providers. These state laws generally require two types of benefits for injured employees: (a) medical benefits, which include expenses related to diagnosis and treatment of an injury and/or disease, as well as any required rehabilitation; and (b) indemnity payments, which consist of temporary wage replacement, permanent disability payments and death benefits to surviving family members. To fulfill these mandated financial obligations, virtually all businesses are required to purchase workers’ compensation insurance or, if permitted by state law or approved by the U.S. Department of Labor, to self-insure, thereby retaining all risk. The businesses may purchase workers’ compensation insurance from a private insurance company such as EICN, ECIC, EPIC or EAC, a state-sanctioned assigned risk pool, a state agency, or a self-insurance fund (an entity that allows businesses to obtain workers’ compensation coverage on a pooled basis, typically subjecting each employer to joint and several liability for the entire fund).

Workers’ compensation was the fourth largest property and casualty insurance line in the U.S. in 2007, on a net written premium basis, according to the National Council on Compensation Insurance (NCCI). According to the NCCI, net premiums written in 2007 for the workers’ compensation industry (excluding governmental writers) were approximately $37.6 billion, or 8.5% of the estimated $440.8 billion in net premiums written for the property and casualty insurance industry as a whole. Our direct premiums written in 2007 were $346.3 million, or 0.9% of the non-governmental workers’ compensation industry market share. This made us the twenty-third largest non-governmental workers’ compensation writer in the United States as reported by A.M. Best.

Excluding governmental writers, premium volume in the workers’ compensation industry was down 3.0% in 2007 compared to 2006, while the entire property and casualty industry experienced a 0.6% decrease in net premium written for the same time period, according to the NCCI.

The workers’ compensation insurance industry classifies risks into seven industry defined hazard groups, as defined by the NCCI, based on severity of claims with businesses in the first or lowest group having the lowest cost claims. Businesses in the four lowest industry defined hazard groups include restaurants, stores, educational institutions, physician offices, dentist offices, clothing manufacturers, machine shops, automobile and automobile service or repair centers and drivers.

Competition and Market Conditions

In 2008, the workers’ compensation sector continued to see medical and indemnity claims costs rise and claim frequency decline. We believe the current environment is characterized by decreased operating margins caused primarily by a combination of decreasing premiums and increased price competition. In 2008 and going forward into 2009, we continue to have concerns related to increased volatility and uncertainty in the financial markets and the current economic recession, including the high rate of unemployment. We believe that overall these market conditions, while challenging, still allow for profitable operations.

Our competitors include, but are not limited to, other specialty workers’ compensation carriers, state agencies, multi-line insurance companies, professional employer organizations, third-party administrators, self-insurance funds and state insurance pools. Many of our existing and potential competitors are significantly larger and possess considerably greater financial and other resources than we do. Consequently, they can offer a broader range of products, provide their services nationwide, and/or capitalize on lower expense to offer more competitive pricing. Our three largest competitors in each of the states in which we have significant concentrations of business are as follows: in California, the California State Compensation Insurance Fund, Berkshire Hathaway Insurance Group, and American International Group, Inc. (AIG); in Florida, Liberty Mutual Insurance Companies, AIG, and

9


Zenith National Insurance Group; and in Nevada, AIG, Nevada Contractors Group and Liberty Mutual Insurance Companies.

In 2008, the federal government intervened in the operations of AIG by providing loans of more than $125 billion. Government interventions such as this are likely to impact the overall property and casualty insurance industry, including workers’ compensation, into the foreseeable future.

Competition in the workers’ compensation insurance industry is based on many factors, including:

 

 

 

 

pricing (either through premium rates or participating dividends);

 

 

 

 

level of service;

 

 

 

 

insurance ratings;

 

 

 

 

capitalization levels;

 

 

 

 

quality of care management services;

 

 

 

 

the ability to reduce loss ratios;

 

 

 

 

effective loss prevention; and

 

 

 

 

the ability to reduce claims expense.

Our A.M. Best Company rating of “A-” (Excellent), allows us to compete for our target customers, select small businesses engaged in low to medium hazard industries. In addition, we believe our competitive advantages include our strong reputation in the markets in which we operate, excellent claims service, experienced and professional independent agents and brokers, and our strategic partnerships and alliances. We also strive to maintain the quality of our care management services, and to provide consultation services to clients to educate on loss prevention and loss reduction strategies. We also compete on price based on our actuarial analysis of current and anticipated loss cost trends, as appropriate.

California Market

California is the largest workers’ compensation insurance market in the United States. In 2007, California accounted for an estimated $9.0 billion in direct premiums written according to the 2008 Best’s State/Line Report for property casualty lines of business, or approximately 18.1% of the U.S. workers’ compensation market. Our direct premiums written in 2007 were $248.2 million, or 3.7% of the non-governmental workers’ compensation market share in California. This made us the ninth largest non-governmental writer of workers’ compensation in the state, as reported by A.M. Best.

California is our largest market and can be characterized as increasingly competitive, as private carriers continue to position for increased market share and to offset revenue declines attributable to past rate decreases. We continue to see an increase in new business submittals.

In 2003 and 2004, California enacted three key pieces of workers’ compensation legislation that reformed medical determinations of injuries or illness, established medical fee schedules, allowed for the use of medical provider panels, modified benefit levels, changed the proof needed to file claims, and reformed many additional areas of the workers’ compensation benefits and delivery system. Workers’ compensation insurers in California responded to these reforms, which have reduced claim costs, by reducing their rates.

Despite subsequent rate decreases from 2004 through 2007, we believe that California remains a profitable operating environment. According to the Workers’ Compensation Insurance Rating Bureau (WCIRB), total estimated ultimate losses in California were $7.0 billion in accident year 2007 compared to $12.3 billion in 2002, a reduction of 43.1%. Indemnity claim frequency was down 44.7% during that same time period.

In May 2008, the California Commissioner of Insurance (California Commissioner) announced that stability in the workers’ compensation insurance marketplace had eliminated the need for an interim pure premium rate advisory. In October 2008, in response to a recommendation by the WCIRB to increase advisory rates by 16.0%, the California Commissioner approved a 5.0% average increase in advisory pure premium rates on new and renewal policies beginning January 1, 2009. Based upon our

10


actuarial analysis of current and anticipated loss cost trends, we filed for an overall average 10% rate increase in California for new and renewal policies incepting on or after February 1, 2009.

Florida Market

Florida is an “administered pricing” state. In administered pricing states, insurance rates are set by the state insurance regulators and are adjusted periodically. Rate competition generally is not permitted and consequently, policy dividend programs, which reflect an insured’s risk profile, are an important competitive factor. Other competitive factors include the availability of premium payment plans and service.

In 2007, Florida accounted for an estimated $3.1 billion in direct premiums written, according to the 2008 Best’s State/Line Report for property casualty lines of business, or approximately 6.2% of the U.S. workers’ compensation market. Prior to the acquisition of AmCOMP on October 31, 2008, we did not have significant operations in Florida. However, we expect to produce approximately 10% of our total premium revenue in Florida in 2009. There are no governmental writers of workers’ compensation insurance in Florida.

Effective in October 2003, workers’ compensation reform legislation was enacted in Florida in an effort to reverse a trend of increasing costs in the state. These reforms were designed to expedite the dispute resolution process, set caps on attorney’s fees, provide greater compliance and enforcement authority to combat fraud, revise certain indemnity benefits and increase medical reimbursement fees for physicians and surgical procedures. These reforms have reduced claim costs and resulted in subsequent rate decreases, including an 18.6% rate decrease effective January 1, 2009. The NCCI cited a significant drop in claims frequency and a reduction in the cost of claims as reasons for this most recent rate reduction.

On February 10, 2009, the Florida Insurance Commissioner (Florida Commissioner) approved a 6.4% increase in workers’ compensation rates to be effective April 1, 2009, for new and renewal business. This rate increase was the result of the impact of an October 2008 Florida Supreme Court decision that materially impacted the statutory caps on attorney fees that were part of the 2003 reforms.

Nevada Market

In 2007, Nevada accounted for an estimated $540.6 million in direct premiums written according to the 2008 Best’s State/Line Report for property casualty lines of business, or 1.1% of the U.S. workers’ compensation market. Our direct premiums written were $60.3 million, or 11.1% of Nevada’s market share in 2007. This made us the second largest writer of workers’ compensation insurance in Nevada as reported by A.M. Best. There are no governmental writers of workers’ compensation insurance in Nevada.

The Nevada workers’ compensation insurance market has changed dramatically over the past decade. A fully competitive, private market is a relatively recent phenomenon in Nevada. From 1913 until July 1999, the workers’ compensation market was served by a monopolistic state fund. In July of 1999, the Nevada workers’ compensation insurance market was opened to competition by private carriers, and the state fund was privatized in January of 2000.

The Nevada market has experienced increasing levels of competition as more carriers have entered the state. As a result of increased competition, as well as decreasing claim costs, we have reduced our premium rates by 14.7% from 2003 through 2008. Beginning in 2007, and continuing in 2008, we saw increased competition from the self insurance market. We have filed for an average 7.8% rate decrease for new and renewal policies incepting on or after March 1, 2009.

Customers

Our target customers are select small businesses engaged in low to medium hazard industries. Our historical loss experience has been more favorable for lower industry defined hazard groups than for higher hazard groups. Further, we believe it is generally more costly to service and manage the risks associated with higher hazard groups, thereby comparatively reducing the profit margin derived from

11


underwriting business in higher hazard groups. By targeting businesses in low to medium hazard groups, we believe that we improve our ability to generate profitable underwriting results. In 2008, 86.8% of our base direct premiums written were generated by insureds in the four lowest industry defined hazard groups (A-D). Within each hazard group, our underwriters use their local market expertise and disciplined underwriting to select specific types of businesses and risks that allow us to generate attractive returns. We underwrite these businesses based on individual risk characteristics, as opposed to following an occupational class-based underwriting approach. For example, while we insure many physician offices, our underwriting guidelines generally exclude offices that we believe have a higher risk profile, such as psychiatrist offices and drug treatment centers.

The following table sets forth our base direct premiums written by type of insured for our top ten types of insureds and as a percentage of our total base direct premiums written for the year ended December 31, 2008:

 

 

 

 

 

 

 

Employer Classifications

 

Hazard
Group
Level

 

Direct
Premiums
Written

 

Percentage of
Total

 

 

(in thousands, except percentages)

Physicians and physician office clerical..

 

C

 

 

$

 

22,116

   

 

 

6.8

%

 

Restaurants

 

A

 

 

 

20,999

   

 

 

6.5

 

Store: Wholesale not otherwise classified

 

B

 

 

 

16,350

   

 

 

5.1

 

Store: Retail not otherwise classified

 

B

 

 

 

9,528

   

 

 

2.9

 

College: Professional employees and clerical

 

B

 

 

 

8,645

   

 

 

2.7

 

Clothing manufacturers

 

C

 

 

 

8,256

   

 

 

2.6

 

Automobile service or repair center and drivers

 

D

 

 

 

7,310

   

 

 

2.3

 

Clerical office employees

 

C

 

 

 

7,215

   

 

 

2.2

 

Machine shops not otherwise classified

 

D

 

 

 

6,449

   

 

 

2.0

 

Stores—groceries and provisions—retail

 

C

 

 

 

5,953

   

 

 

1.8

 

 

 

 

 

 

 

 

Total

 

 

 

 

$

 

112,821

   

 

 

34.9

%

 

 

 

 

 

 

 

 

The following table sets forth our base direct premiums written by hazard group and as a percentage of our total base direct premiums written for the applicable year ended December 31:

 

 

 

 

 

 

 

 

 

 

 

 

 

Hazard
Group

 

2008

 

Percentage
of 2008
Total

 

2007

 

Percentage
of 2007
Total

 

2006

 

Percentage
of 2006
Total

(in thousands, except percentages)

A

 

 

$

 

35,035

   

 

 

10.8

%

 

 

 

$

 

35,739

   

 

 

10.3

%

 

 

 

$

 

41,409

   

 

 

10.6

%

 

B

 

 

 

77,794

   

 

 

24.1

   

 

 

83,875

   

 

 

24.1

   

 

 

91,344

   

 

 

23.4

 

C

 

 

 

126,075

   

 

 

39.0

   

 

 

125,805

   

 

 

36.1

   

 

 

138,768

   

 

 

35.6

 

D

 

 

 

41,578

   

 

 

12.9

   

 

 

44,667

   

 

 

12.8

   

 

 

48,596

   

 

 

12.4

 

E

 

 

 

29,818

   

 

 

9.2

   

 

 

34,498

   

 

 

9.9

   

 

 

39,129

   

 

 

10.0

 

F

 

 

 

12,429

   

 

 

3.8

   

 

 

22,803

   

 

 

6.5

   

 

 

29,344

   

 

 

7.5

 

G

 

 

 

639

   

 

 

0.2

   

 

 

1,208

   

 

 

0.3

   

 

 

1,754

   

 

 

0.5

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Total

 

 

$

 

323,368

   

 

 

100.0

%

 

 

 

$

 

348,595

   

 

 

100.0

%

 

 

 

$

 

390,344

   

 

 

100.0

%

 

 

 

 

 

 

 

 

 

 

 

 

 

 

In 2008, our insureds had average annual premiums of approximately $10,200. We are not dependent on any single employer or type of employer and the loss of any single employer or type of employer would not have a material adverse effect on our business.

12


We expanded our geographic footprint with the acquisition of AmCOMP and currently conduct business in 29 states from coast to coast and are licensed to write business in seven additional states and the District of Colombia. The following table sets forth our direct premiums written by state and as a percentage of total direct premiums written for the last three years ended December 31:

 

 

 

 

 

 

 

 

 

 

 

 

 

State

 

2008

 

Percentage
of 2008
Total

 

2007

 

Percentage
of 2007
Total

 

2006

 

Percentage
of 2006
Total

(in thousands, except percentages)

California

 

 

$

 

222,408

   

 

 

69.4

%

 

 

 

$

 

248,211

   

 

 

71.7

%

 

 

 

$

 

288,529

   

 

 

73.5

%

 

Nevada

 

 

 

37,244

   

 

 

11.6

   

 

 

60,257

   

 

 

17.4

   

 

 

76,016

   

 

 

19.4

 

Colorado

 

 

 

9,786

   

 

 

3.0

   

 

 

12,639

   

 

 

3.6

   

 

 

13,466

   

 

 

3.4

 

Idaho

 

 

 

6,227

   

 

 

1.9

   

 

 

6,755

   

 

 

1.9

   

 

 

3,849

   

 

 

1.0

 

Utah

 

 

 

5,994

   

 

 

1.9

   

 

 

7,912

   

 

 

2.3

   

 

 

7,164

   

 

 

1.8

 

Illinois

 

 

 

5,641

   

 

 

1.8

   

 

 

1,276

   

 

 

0.4

   

 

 

   

 

 

 

Montana

 

 

 

4,684

   

 

 

1.5

   

 

 

4,901

   

 

 

1.4

   

 

 

3,141

   

 

 

0.8

 

Texas

 

 

 

4,546

   

 

 

1.4

   

 

 

1,376

   

 

 

0.4

   

 

 

322

   

 

 

0.1

 

Florida

 

 

 

4,500

   

 

 

1.4

   

 

 

134

   

 

 

   

 

 

   

 

 

 

Wisconsin

 

 

 

4,362

   

 

 

1.4

   

 

 

   

 

 

   

 

 

   

 

 

 

Other

 

 

 

14,956

   

 

 

4.7

   

 

 

2,813

   

 

 

0.9

   

 

 

189

   

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Total

 

 

$

 

320,348

   

 

 

100.0

%

 

 

 

$

 

346,274

   

 

 

100.0

%

 

 

 

$

 

392,676

   

 

 

100.0

%

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The table above includes direct premiums written for our newly acquired subsidiaries, EPIC and EAC, for the period from November 1, 2008 through December 31, 2008. EPIC and EAC had a combined 70.7% and 77.7% of their direct premiums written for the years ended December 31, 2007 and 2006, respectively, attributable to their top five states as a percentage of total direct premiums written (Florida, Wisconsin, Texas, Indiana and Tennessee). Going forward, our concentration in California will not be as significant and states such as Florida, Wisconsin and Texas will account for a larger percentage of our total direct premiums written.

The number of policies in-force, at the specified dates, was as follows:

 

 

 

 

 

 

 

State

 

December 31,

 

2008

 

2007

 

2006

California

 

 

 

27,942

   

 

 

24,986

   

 

 

21,359

 

Nevada

 

 

 

5,221

   

 

 

6,147

   

 

 

6,523

 

Florida

 

 

 

3,112

   

 

 

79

   

 

 

 

Other

 

 

 

9,324

   

 

 

2,487

   

 

 

1,860

 

 

 

 

 

 

 

 

Total

 

 

 

45,599

   

 

 

33,699

   

 

 

29,742

 

 

 

 

 

 

 

 

At December 31, 2008, we experienced a year-over-year increase of 35.3%, in the total number of policies in-force, of which 27.7% was attributable to policies underwritten by our newly acquired insurance subsidiaries, EPIC and EAC. Excluding the impacts of the acquisition, the remaining policy growth in states other than Nevada was insufficient to offset the decline in premiums written, primarily due to declining rate levels and deteriorating economic conditions. The year-over-year decline in the number of policies in-force in Nevada was the result of increased competition, economic conditions, and adherence to our underwriting guidelines, which are designed to minimize the underwriting of classes of business that do not meet our target risk profiles.

Marketing and Distribution

We market and sell our workers’ compensation insurance products through independent local, regional and national agents and brokers, and through our strategic partnerships and alliances, including our principal partners ADP and Wellpoint. Policies underwritten directly or through our independent agents and brokers generated $239.5 million and $242.3 million, or 72.8% and 69.5%, of our base direct premiums written for the years ended December 31, 2008 and 2007, respectively.

13


Independent Insurance Agents and Brokers

We establish and maintain strong, long-term relationships with independent agents and brokers that actively market our products and services and provide quality application flow from prospective policyholders that are reasonably likely to accept our quotes. We emphasize personal interaction, offering responsive service and competitive commissions and maintaining a focus on workers’ compensation insurance. Our sales representatives and field underwriters work closely with independent agents and brokers to market and underwrite our business, regularly visit their offices and participate in presentations to customers, which results in enhanced understanding of the businesses and risks we underwrite and the needs of prospective customers.

We believe that the decision by independent agents and brokers to place business with an insurer depends in part upon superior services offered by the insurer to the agents and brokers and policyholders, as well as the insurer’s expertise and dedication to a particular line of business. Accordingly, we continually seek to enhance the ease of doing business with us and to provide superior service. For example, our highly automated underwriting system, EACCESS®, enables agents and brokers to directly input data into the system and in some instances the system prices the risk and binds the coverage without human intervention. We do not delegate underwriting authority to agents or brokers that sell our insurance. We pay direct commissions on premiums written that we believe are competitive with other workers’ compensation insurers. Additionally, we believe that we deliver prompt, efficient and professional support services.

As of December 31, 2008, we marketed and sold our insurance products through approximately 5,700 independent insurance agents and brokers in approximately 1,900 appointed agencies. Those agents and brokers produced $235.4 million, $242.3 million and $267.1 million of our base direct premiums written for the years ended December 31, 2008, 2007 and 2006, respectively.

No single agency or brokerage accounted for more than 1.1%, 2.1% and 2.8% of base direct premiums written in 2008, 2007 and 2006, respectively.

Strategic Partnerships and Alliances

To expand our distribution, we have developed important strategic relationships with companies that have established sales forces and common markets. Since 2002, we have jointly marketed our workers’ compensation insurance products with ADP’s payroll services primarily to small businesses in nine states and with Wellpoint’s group health insurance plans in California. Additionally, we have entered into additional strategic partnerships with E-chx, Inc. (E-chx) and Granite Professional Insurance Brokerage, Inc. (Granite), Intego Insurance Services, LLC (Intego) and Small Business Payroll Services Group of Wells Fargo Bank, National Association (Wells Fargo). We are actively pursuing opportunities for other strategic partnerships and alliances.

Policies underwritten through our strategic partnerships and alliances generated $83.8 million, $99.5 million and $114.9 million, or 26.0%, 28.5% and 29.4% of our base direct premiums written for the years ended December 31, 2008, 2007 and 2006. We do not delegate underwriting authority to our strategic distribution partners.

Wellpoint. The Wellpoint Integrated MedicompSM joint marketing program includes two agreements, a small group health insurance plan (for businesses with 1 to 50 employees) and a large group health insurance plan (for businesses with 51 to 250 employees). These two group health insurance plans are offered with our standard workers’ compensation insurance policy. This exclusive relationship allows us to distribute an integrated group health/workers’ compensation product in California through Wellpoint’s life and health agents. The primary benefit to the employer is a single bill for their group health and workers’ compensation insurance coverages and a discount on workers’ compensation premiums. We believe that, in general, when businesses purchase this combination of coverages, their employees make fewer workers’ compensation claims because those employees are insured for non-work related illnesses or injuries and thus are less likely to seek treatment for a non-work related illness or injury through their employers’ workers’ compensation insurance policy. We believe another key benefit to this program is the increased satisfaction from employees who are able to use the same medical network for occupational and non-occupational illness and injury. As the largest

14


group health carrier in California, Wellpoint has negotiated favorable rates with its medical providers and associated facilities, which we benefit from through reduced claims costs.

We pay Wellpoint fees which are a percentage of premiums paid for services provided under the Integrated MediComp program.

The small group and large group agreements automatically renew for one-year periods unless terminated by either party with at least 60 days notice prior to the expiration of the current term. These agreements have automatically renewed through January 1, 2010 and July 1, 2009, respectively.

ADP. ADP is a payroll services company which provides services to small and medium-sized businesses, and is the largest payroll service provider in the United States. As part of its services, ADP sells our workers’ compensation insurance product along with its payroll and accounting services through ADP’s insurance agency and field sales staff primarily to small businesses in nine states (California, Colorado, Florida, Idaho, Illinois, Nevada, Oregon, Texas, and Utah). The majority of business written is through ADP’s small business unit, which has accounts of 1 to 50 employees. We pay ADP fees which are a percentage of premiums for services provided to us by ADP.

ADP utilizes innovative methods to market workers’ compensation insurance including the Pay-by-Pay® (PBP) program. An advantage of ADP’s PBP program is that the policyholder is not required to pay a deposit at the inception of the policy. Rather, the workers’ compensation premium is deducted each time ADP processes the policyholders’ payrolls along with their appropriate federal, state and local taxes. These characteristics of the PBP program enable us to competitively price the workers’ compensation insurance written as a part of that program.

Although we do not have an exclusive relationship with ADP, we believe we are a key strategic partner of ADP for our selected markets and classes of business. Our agreement with ADP may be terminated without cause upon 120 days notice.

E-chx and Granite. We entered into a joint sales, services and program administration agreement with E-chx and Granite in November 2006, pursuant to which E-chx, a payroll solutions company providing payroll outsourcing solutions for small businesses, markets our workers’ compensation insurance product with its payroll services. The program is only available in California. Although we do not have an exclusive relationship with E-chx, we are its only strategic partner in California. E-chx may terminate the agreement without cause upon 90 days written notice. E-chx offers products and services in all 50 states. For its services, we pay E-chx fees that are a percentage of premiums paid through the program.

E-chx offers an E-PAYSM program. An advantage of this program is that the policyholder is not required to pay a deposit at the inception of the policy. Rather, the workers’ compensation premium is deducted each time E-chx processes the policyholders’ payrolls along with their appropriate federal, state, and local taxes.

Additionally, as part of our distribution relationship, Granite markets our products through other payroll providers.

Intego. In October 2007, we entered into a Partner Program and Agency Agreement with Intego, a full service insurance brokerage that works with approved, independent payroll service companies to identify potential business leads. Pursuant to this non-exclusive agreement, Intego markets our workers’ compensation insurance product in Texas, Florida and Illinois to business customers of the independent payroll service companies with a billing that is integrated with their payroll products. Intego may terminate this agreement without cause upon 90 days written notice.

Wells Fargo. In August 2008, we continued our strategy of growing in our existing markets by entering into a strategic relationship with the Small Business Payroll Services Group of Wells Fargo. This non-exclusive relationship allows the Small Business Payroll Services Group to offer our workers’ compensation products as part of ExpressPay® and other payroll services in most of the western states in which we do business. ExpressPay is sold through Wells Fargo banking operations by bankers who are trained to identify and cross-sell the ExpressPay product.

15


Direct Business

We write a small amount of business that comes to us directly without using an agent or broker or one of our strategic distribution relationships. This direct business is a legacy of our assumption of the assets and liabilities of the Fund. Although we do not market any direct business, we intend to maintain this book of business because it is very well known by our underwriters and profitable. In the years ended December 31, 2008, 2007 and 2006, we wrote approximately $4.1 million, $6.8 million and $8.3 million, respectively, of base direct premiums written that were attributable to this business.

Underwriting and Product

Disciplined Underwriting

We target select small businesses engaged in low to medium hazard industries. We employ a disciplined, conservative underwriting approach designed to individually select specific types of businesses, predominantly those in the four lowest of the seven workers’ compensation insurance industry defined hazard groups, that we believe will have fewer and less costly claims relative to other businesses in the same hazard groups.

Our underwriting guidelines are designed to minimize underwriting of classes and subclasses of business which have historically demonstrated claims severity that do not meet our target risk profiles. We price our policies based on the specific risks associated with each potential insured rather than solely on the industry class in which a potential insured is classified. In 2008, policyholders in the four lowest industry defined hazard groups generated approximately 86.8% of our base direct premiums written. This is consistent with our strategy of targeting insureds in low to medium hazard businesses. Our statutory losses and loss adjustment expenses (LAE) ratio, a measure which relates inversely to our underwriting profitability, was 51.4% and 46.5% in 2008 and 2007, respectively, 21.7 and 26.6 percentage points below the 2007 statutory industry composite losses and LAE ratio calculated by A.M. Best for U.S. insurance companies having more than 50% of their premiums generated by workers’ compensation insurance products. Our statutory losses and LAE ratio was at least ten percentage points below the A.M. Best composite losses and LAE ratio for the industry for each of the five years ended December 31, 2007. Our disciplined underwriting approach is a critical element of our culture and has allowed us to offer competitive prices, diversify our risks and achieve profitable growth.

We provide workers’ compensation insurance coverage to several homogeneous groups of business such as physicians, dentists, restaurants, artisan contractors and retail stores. We review the premium, payroll and loss history trends of each group annually and develop a schedule rating modification that is applied to all policyholders that meet the qualification standards for a given group. Qualification standards vary between groups and may include factors such as management experience, loss experience and nature of operations conducted by the insured and/or other exposures specific to the class of business. Each insured’s experience modification is also applied in the determination of their premium.

Our underwriting strategy involves continuing our disciplined underwriting approach in pursuing profitable growth opportunities. We carefully monitor market trends to assess new business opportunities, only pursuing opportunities that we expect to meet our pricing and risk standards. We seek to underwrite our portfolio of low to medium hazard risks with a view toward maintaining long term underwriting profitability across market cycles.

We execute our underwriting processes through automated systems and through seasoned underwriters with specific knowledge of local markets. Within these systems, we have developed underwriting templates for specific, targeted classes of business that produce faster quotations when all underwriting criteria are met by a specific risk. These underwriting guidelines consider many factors such as type of business, nature of operations, risk exposures and other employer-specific conditions, and are designed to minimize underwriting of certain classes and subclasses of business such as chemical manufacturing, high- rise construction and long-haul trucking, which have historically demonstrated claims severity that do not meet our target risk profiles.

While our underwriting systems are automated, we do not delegate underwriting authority to agents or brokers that sell our insurance or to any other third party. To create efficiency and

16


standardization, on July 1, 2006, we implemented a new underwriting and policy administration system, EACCESS. As a result, one of our legacy underwriting systems has been phased out and two additional legacy systems are being phased out. Our field underwriters continue to work closely with independent agents, brokers and our strategic distribution partners to market and underwrite our business, regularly visiting their offices and participating in presentations to customers.

Our underwriting guidelines are defined centrally by our Corporate Underwriting Department. The average length of underwriting experience of our current underwriting professionals exceeds ten years. Our chief underwriting officer, who is responsible for supervision of the underwriting conducted at all of the business units, has the authority to permit a business unit to underwrite particular risks that fall outside the classes of business specified in our underwriting guidelines on a case-by-case basis. Also, our chief underwriting officer directly oversees the writing of business in the case of certain of our larger customers.

Loss Control

Our loss control professionals assist our underwriting personnel in evaluating potential and current policyholders and are an important part of our loss control strategy. The purpose of our loss control group is to provide consultation to policyholders to aid them in preventing losses before they occur and in containing costs once claims occur.

Premium Audits

We conduct premium audits on our policyholders annually, upon the expiration of each policy. The purpose of these audits is to comply with applicable state and reporting bureau requirements and to verify that policyholders have accurately reported their payroll expenses and employee job classifications. In addition to annual audits, we selectively perform interim audits on certain classes of business if significant or unusual claims are filed or concerns are raised regarding projected annual payrolls which could result in substantial variances at final audit. Prior final audit results, as available, are considered when pricing policy renewals.

Principal Products and Pricing

Our workers’ compensation insurance product is written primarily on a guaranteed cost basis, meaning the premium for a policyholder is set in advance and varies based only upon changes in the policyholder’s class and payroll. Class and specific risk credits are formulated to fit the needs of targeted classes and employer groups. Premiums are based on the particular class of business and our estimates of expected losses, LAE and other expenses related to the policies we underwrite. Generally, premiums for workers’ compensation insurance policies are a function of:

 

 

 

 

the amount of the insured employer’s payroll;

 

 

 

 

the applicable premium rate, which varies with the nature of the employees’ duties and the business of the insured;

 

 

 

 

the insured’s industry classification; and

 

 

 

 

factors reflecting the insured employer’s historical loss experience.

In addition, our pricing decisions take into account the workers’ compensation insurance regulatory requirements of each state in which we conduct operations, because such requirements address the rates that industry participants in that state may or should charge for policies. We write business in “administered pricing” and “loss cost” states.

In administered pricing states, insurance rates are set by the state insurance regulators and are adjusted periodically. Rate competition generally is not permitted in these states and, consequently, policy dividend programs, which reflect an insured’s risk profile, are an important competitive factor. Florida, Wisconsin and Idaho are administered pricing states, while the other states in which we operate are loss cost states. In loss cost states, we have more flexibility to offer premium rates that reflect the risk we are taking based on each employer’s profile.

17


In Florida and Wisconsin, and to a much more limited extent in Georgia, Nevada, Texas and Virginia, we offer dividend programs to eligible policyholders under which a portion of the premium paid by a policyholder may be returned in the form of a dividend. Eligibility for these programs varies based upon the nature of the policyholder’s operations, value of premium generated, loss experience and existing controls intended to minimize workers’ compensation claims and costs. Payment of policy dividends specified in the dividend plan cannot be guaranteed.

In loss cost states, the state first approves a set of loss costs that provide for expected loss and, in most cases, LAE payments, which are prepared by an insurance rating bureau (for example, the WCIRB in California and the NCCI in Nevada). An insurer then selects a factor, known as a loss cost multiplier, to apply to loss costs to determine its insurance rates. In these states, regulators permit pricing flexibility primarily through: (a) the selection of the loss cost multiplier, and (b) schedule rating modifications that allow an insurer to adjust premiums upwards or downwards for specific risk characteristics of the policyholder such as:

 

 

 

 

type of work conducted at the premises or work environment;

 

 

 

 

on-site medical facilities;

 

 

 

 

level of employee safety;

 

 

 

 

use of safety equipment; and

 

 

 

 

policyholder management practices.

In all of the loss cost states in which we currently operate, we use both variables (i.e., both (a) and (b) above) to calculate a policy premium that we believe will cover the claim payments, losses and LAE, and company overhead and result in a reasonable profit for us.

State legislative actions relating to the benefits payable to injured workers can affect the premium rates that we charge for our insurance products. For example, during the period September 2003 to December 31, 2008, we have reduced our rates by 62.5% in California, in response to cost savings realized from the 2003 and 2004 legislative reforms, such as new controls on medical costs and changes in the state’s permanent disability compensation formula. Although the California Commissioner does not set premium rates, he adopts and publishes advisory “pure premium” rates, which are rates that would cover expected losses and LAE but do not contain an element to cover operating expenses or profit. Our California rates continue to be based upon our actuarial analysis of current and anticipated cost trends.

Claims and Medical Case Management

The role of our claims units is to actively investigate, evaluate and pay claims efficiently, and to aid injured workers in returning to work in accordance with applicable laws and regulations. We have implemented rigorous claims guidelines, reporting and control procedures in our claims units and have claims operations throughout the markets we serve. We also provide medical case management services for all claims that we determine will benefit from such involvement.

Our claims department also provides claims management services for those claims incurred by the Fund and assumed by our Nevada insurance subsidiary in connection with the LPT Agreement with a date of injury prior to July 1, 1995. We receive a fee from the third party reinsurers equal to 7% of the loss payments on these claims.

In Nevada, we have created our own medical provider network, and we make every appropriate effort to direct injured workers into this network. In the other states in which we do business, we utilize networks affiliated with WellPoint and Coventry Health Care, Inc., formerly Concentra Operating Corporation. In addition to our medical networks, we work closely with local vendors, including attorneys, medical professionals and investigators, to bring local expertise to our reported claims. We pay special attention to reducing costs in each region and have established discounting arrangements with the aforementioned service providers. We use preferred provider organizations, bill review services and utilization management to closely monitor medical costs and to verify that providers charge no more than the applicable fee schedule, or in some cases what is usual and customary.

18


We actively pursue subrogation and recovery in an effort to mitigate claims costs. Subrogation rights are based upon state and federal laws, as well as the insurance policy issued to the insured. Our subrogation efforts are handled through our subrogation department.

Losses and Loss Adjustment Expenses Reserves

We are directly liable for losses and LAE under the terms of insurance policies our insurance subsidiaries underwrite. Significant periods of time can elapse between the occurrence of an insured loss, the reporting of the loss to us and our payment of that loss. Loss reserves are reflected in our balance sheets under the line item caption “unpaid losses and loss adjustment expenses.” As of December 31, 2008, our reserve for unpaid losses and LAE, net of reinsurance, was $1.4 billion. The process of estimating reserves involves a considerable degree of judgment by management and, as of any given date, is inherently uncertain. For a detailed description of our reserves, the judgments, key assumptions and actuarial methodologies that we use to estimate our reserves and the role of our consulting actuary, see “Item 7—Management’s Discussion and Analysis of Financial Condition and Results of Operations—Critical Accounting Policies—Reserves for Losses and Loss Adjustment Expenses.”

The following table provides a reconciliation of the beginning and ending loss reserves on a GAAP basis:

 

 

 

 

 

 

 

 

 

December 31,

 

2008

 

2007

 

2006

 

 

(in thousands)

Unpaid losses and LAE, gross of reinsurance, at beginning of period

 

 

$

 

2,269,710

   

 

$

 

2,307,755

   

 

$

 

2,349,981

 

Less reinsurance recoverable, excluding bad debt allowance, on unpaid losses and LAE

 

 

 

1,052,641

   

 

 

1,098,103

   

 

 

1,141,500

 

 

 

 

 

 

 

 

Net unpaid losses and LAE at beginning of period

 

 

 

1,217,069

   

 

 

1,209,652

   

 

 

1,208,481

 

Losses and LAE, net of reinsurance, acquired in business combination

 

 

 

247,006

   

 

 

   

 

 

 

Losses and LAE, net of reinsurance, incurred in:

 

 

 

 

 

 

Current year

 

 

 

226,643

   

 

 

221,347

   

 

 

256,257

 

Prior years

 

 

 

(71,707

)

 

 

 

 

(60,011

)

 

 

 

 

(107,129

)

 

 

 

 

 

 

 

 

Total net losses and LAE incurred during the period

 

 

 

154,936

   

 

 

161,336

   

 

 

149,128

 

Deduct payments for losses and LAE, net of reinsurance, related to:

 

 

 

 

 

 

Current year

 

 

 

53,397

   

 

 

44,790

   

 

 

41,098

 

Prior years

 

 

 

135,486

   

 

 

109,129

   

 

 

106,859

 

 

 

 

 

 

 

 

Total net payments for losses and LAE during the period

 

 

 

188,883

   

 

 

153,919

   

 

 

147,957

 

 

 

 

 

 

 

 

Ending unpaid losses and LAE, net of reinsurance

 

 

 

1,430,128

   

 

 

1,217,069

   

 

 

1,209,652

 

Reinsurance recoverable, excluding bad debt allowance, on unpaid losses and LAE

 

 

 

1,076,350

   

 

 

1,052,641

   

 

 

1,098,103

 

 

 

 

 

 

 

 

Unpaid losses and LAE, gross of reinsurance, at end of period

 

 

$

 

2,506,478

   

 

$

 

2,269,710

   

 

$

 

2,307,755

 

 

 

 

 

 

 

 

Our estimates of incurred losses and LAE attributable to insured events of prior years have decreased for past accident years because actual losses and LAE paid and current projections of unpaid losses and LAE were less than we originally anticipated. We refer to such decreases as favorable developments. The reductions in reserves were $71.7 million, $60.0 million and $107.1 million for the years ended December 31, 2008, 2007 and 2006, respectively. Estimates of net incurred losses and LAE are established by management utilizing actuarial indications based upon our historical and industry experience regarding claim emergence and claim payment patterns, and regarding claim cost trends, adjusted for future anticipated changes in claims-related and economic trends, as well as regulatory and legislative changes, to establish our best estimate of the losses and LAE reserves. The decrease in the prior year reserves was primarily the result of actual paid losses being less than expected, and revised assumptions used in the projection of future losses and LAE payments based on more current

19


information about the impact of certain changes, such as legislative changes, which was not available at the time the reserves were originally established. While we have had favorable developments over the past three years, the magnitude of these developments illustrates the inherent uncertainty in our liability for losses and LAE, and we believe that favorable or unfavorable developments of similar magnitude, or greater, could occur in the future. For a detailed description of the major sources of recent favorable developments, see “Item 7—Management’s Discussion and Analysis of Financial Condition and Results of Operations—Critical Accounting Policies—Reserves for Losses and Loss Adjustment Expenses” and Note 9 in the Notes to our Consolidated Financial Statements which are included elsewhere in this report.

Our reserve for unpaid losses and loss adjustment expenses (gross and net), as well as our case and IBNR reserves were as follows:

 

 

 

 

 

 

 

 

 

December 31,

 

2008

 

2007

 

2006

 

 

(in thousands)

Case reserves

 

 

$

 

886,789

   

 

$

 

740,133

   

 

$

 

753,102

 

IBNR

 

 

 

1,293,313

   

 

 

1,235,124

   

 

 

1,261,521

 

LAE

 

 

 

326,376

   

 

 

294,453

   

 

 

293,132

 

 

 

 

 

 

 

 

Gross unpaid losses and LAE

 

 

 

2,506,478

   

 

 

2,269,710

   

 

 

2,307,755

 

Reinsurance recoverables on unpaid losses and LAE, gross

 

 

 

1,076,350

   

 

 

1,052,641

   

 

 

1,098,103

 

 

 

 

 

 

 

 

Net unpaid losses and LAE

 

 

$

 

1,430,128

   

 

$

 

1,217,069

   

 

$

 

1,209,652

 

 

 

 

 

 

 

 

Loss Development

The following tables show changes in the historical loss reserves, on a gross basis and net of reinsurance, as of the nine years ended December 31, 2008, for EICN and ECIC and as of the year ended December 31, 2008, for EPIC and EAC. These tables are presented on a GAAP basis. The paid and reserve data in the following tables is presented on a calendar year basis. We commenced operations as a non-governmental mutual insurance company on January 1, 2000 when our Nevada insurance subsidiary assumed the assets, liabilities and operations of the Fund. Paid and reserve data for 1999 has not been included in the following tables because (a) prior to December 31, 1999, the Fund was not required to include reserves related to losses and LAE for claims occurring prior to July 1, 1995 in its annual statutory financial statements filed with the Nevada Division of Insurance (Nevada DOI) (consequently, the financial statements made no provision for such liabilities and complete information in respect of those years is not available in a manner that conforms with the information in this table) and (b) for claims occurring subsequent to July 1, 1995 and prior to the Company’s inception on January 1, 2000, we believe that the loss development pattern was uniquely attributable to Nevada workers’ compensation reforms adopted in the early 1990s, which pattern is not indicative of development that would be expected to be repeated in our prospective operations.

The top line of each table shows the net reserves and the gross reserves for unpaid losses and LAE recorded at each year-end. Such amount represents an estimate of unpaid losses and LAE occurring in that year as well as future payments on claims occurring in prior years. The upper portion of these tables (net and gross cumulative amounts paid, respectively) present the cumulative amounts paid during subsequent years on those losses for which reserves were carried as of each specific year. The lower portions (net reserves re-estimated) show the re-estimated amounts of the previously recorded reserve based on experience as of the end of each succeeding year. The re-estimate changes as more information becomes known about the actual losses for which the initial reserve was carried. An adjustment to the carrying value of unpaid losses for a prior year will also be reflected in the adjustments for each subsequent year. For example, an adjustment made in the 2000 year will be reflected in the re-estimated ultimate net loss for each of the years thereafter. The gross cumulative redundancy (deficiency) line represents the cumulative change in estimates since the initial reserve was established. It is equal to the difference between the initial reserve and the latest re-estimated reserve amount. A redundancy means that the original estimate was higher than the current estimate. A deficiency means that the current estimate is higher than the original estimate.

20


 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2000

 

2001

 

2002

 

2003

 

2004

 

2005

 

2006

 

2007

 

2008

 

 

(in thousands)

Net reserves for losses and loss adjustment expenses

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Originally estimated

 

 

$

 

936,000

   

 

$

 

887,000

   

 

$

 

908,326

   

 

$

 

962,457

   

 

$

 

1,089,814

   

 

$

 

1,208,481

   

 

$

 

1,209,652

   

 

$

 

1,217,069

   

 

$

 

1,430,128

 

Net cumulative amounts paid as of:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

One year later

 

 

 

108,748

   

 

 

81,022

   

 

 

80,946

   

 

 

91,130

   

 

 

96,661

   

 

 

106,859

   

 

 

109,129

   

 

 

127,912

 

 

 

Two years later

 

 

 

161,721

   

 

 

120,616

   

 

 

130,386

   

 

 

150,391

   

 

 

161,252

   

 

 

175,531

   

 

 

186,014

 

 

 

 

 

Three years later

 

 

 

191,453

   

 

 

149,701

   

 

 

165,678

   

 

 

193,766

   

 

 

207,868

   

 

 

229,911

 

 

 

 

 

 

 

Four years later

 

 

 

215,015

   

 

 

173,204

   

 

 

194,400

   

 

 

226,127

   

 

 

247,217

 

 

 

 

 

 

 

 

 

Five years later

 

 

 

235,613

   

 

 

194,980

   

 

 

218,453

   

 

 

255,851

 

 

 

 

 

 

 

 

 

 

 

Six years later

 

 

 

255,772

   

 

 

215,507

   

 

 

220,455

 

 

 

 

 

 

 

 

 

 

 

 

 

Seven years later

 

 

 

275,750

   

 

 

235,653

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Eight years later

 

 

 

294,760

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net reserves re-estimated as of:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

One year later

 

 

 

896,748

   

 

 

875,522

   

 

 

847,917

   

 

 

924,878

   

 

 

1,011,759

   

 

 

1,101,352

   

 

 

1,149,641

   

 

 

1,151,246

 

 

 

Two years later

 

 

 

885,221

   

 

 

781,142

   

 

 

805,058

   

 

 

886,711

   

 

 

975,765

   

 

 

1,049,628

   

 

 

1,085,358

 

 

 

 

 

Three years later

 

 

 

800,959

   

 

 

742,272

   

 

 

779,373

   

 

 

884,426

   

 

 

954,660

   

 

 

1,004,589

 

 

 

 

 

 

 

Four years later

 

 

 

766,204

   

 

 

719,912

   

 

 

788,262

   

 

 

877,151

   

 

 

927,382

 

 

 

 

 

 

 

 

 

Five years later

 

 

 

743,997

   

 

 

730,112

   

 

 

788,481

   

 

 

858,617

 

 

 

 

 

 

 

 

 

 

 

Six years later

 

 

 

754,447

   

 

 

730,456

   

 

 

776,329

 

 

 

 

 

 

 

 

 

 

 

 

 

Seven years later

 

 

 

754,462

   

 

 

720,155

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Eight years later

 

 

 

745,665

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net cumulative redundancy:

 

 

 

190,335

   

 

 

166,845

   

 

 

131,997

   

 

 

103,840

   

 

 

162,432

   

 

 

203,892

   

 

 

241,294

   

 

 

65,823

   

 

 

0

 

Gross reserves—December 31

 

 

 

2,326,000

   

 

 

2,226,000

   

 

 

2,212,368

   

 

 

2,193,439

   

 

 

2,284,542

   

 

 

2,349,981

   

 

 

2,307,755

   

 

 

2,269,710

   

 

 

2,506,478

 

Reinsurance recoverable, gross

 

 

 

1,390,000

   

 

 

1,339,000

   

 

 

1,304,042

   

 

 

1,230,982

   

 

 

1,194,728

   

 

 

1,141,500

   

 

 

1,098,103

   

 

 

1,052,641

   

 

 

1,076,350

 

Net reserves—December 31

 

 

 

936,000

   

 

 

887,000

   

 

 

908,326

   

 

 

962,457

   

 

 

1,089,814

   

 

 

1,208,481

   

 

 

1,209,652

   

 

 

1,217,069

   

 

 

1,430,128

 

Gross re-estimated reserves

 

 

 

2,072,850

   

 

 

1,997,550

   

 

 

2,012,943

   

 

 

2,050,124

   

 

 

2,078,223

   

 

 

2,119,764

   

 

 

2,162,695

   

 

 

2,200,689

   

 

 

2,506,478

 

Re-estimated reinsurance recoverables

 

 

 

1,327,185

   

 

 

1,277,395

   

 

 

1,236,614

   

 

 

1,191,507

   

 

 

1,150,841

   

 

 

1,115,175

   

 

 

1,077,337

   

 

 

1,049,443

   

 

 

1,076,350

 

Net re-estimated reserves

 

 

 

745,665

   

 

 

720,155

   

 

 

776,329

   

 

 

858,617

   

 

 

927,382

   

 

 

1,004,589

   

 

 

1,085,358

   

 

 

1,151,246

   

 

 

1,430,128

 

Gross reserves for losses and loss adjustment expenses

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Originally estimated

 

 

 

2,326,000

   

 

 

2,226,000

   

 

 

2,212,368

   

 

 

2,193,439

   

 

 

2,284,542

   

 

 

2,349,981

   

 

 

2,307,755

   

 

 

2,269,710

   

 

 

2,506,478

 

Gross cumulative amounts paid as of:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

One year later

 

 

 

160,978

   

 

 

128,066

   

 

 

128,462

   

 

 

137,968

   

 

 

142,632

   

 

 

152,006

   

 

 

152,879

   

 

 

170,626

 

 

 

Two years later

 

 

 

260,995

   

 

 

215,176

   

 

 

224,740

   

 

 

243,203

   

 

 

252,379

   

 

 

264,430

   

 

 

272,478

 

 

 

 

 

Three years later

 

 

 

338,243

   

 

 

291,099

   

 

 

306,006

   

 

 

331,731

   

 

 

342,748

   

 

 

361,524

 

 

 

 

 

 

 

Four years later

 

 

 

408,643

   

 

 

360,535

   

 

 

379,881

   

 

 

407,845

   

 

 

424,811

 

 

 

 

 

 

 

 

 

Five years later

 

 

 

475,174

   

 

 

427,307

   

 

 

447,687

   

 

 

480,283

 

 

 

 

 

 

 

 

 

 

 

Six years later

 

 

 

540,329

   

 

 

490,296

   

 

 

514,091

 

 

 

 

 

 

 

 

 

 

 

 

 

Seven years later

 

 

 

602,371

   

 

 

553,103

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Eight years later

 

 

 

664,042

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Gross reserves re-estimated as of:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

One year later

 

 

 

2,280,978

   

 

 

2,211,566

   

 

 

2,121,867

   

 

 

2,148,829

   

 

 

2,178,514

   

 

 

2,233,077

   

 

 

2,233,176

   

 

 

2,200,689

 

 

 

Two years later

 

 

 

2,266,495

   

 

 

2,089,850

   

 

 

2,072,205

   

 

 

2,088,437

   

 

 

2,138,648

   

 

 

2,170,292

   

 

 

2,162,695

 

 

 

 

 

Three years later

 

 

 

2,157,647

   

 

 

2,049,340

   

 

 

2,024,790

   

 

 

2,084,764

   

 

 

2,110,481

   

 

 

2,119,764

 

 

 

 

 

 

 

Four years later

 

 

 

2,121,397

   

 

 

2,000,560

   

 

 

2,032,553

   

 

 

2,072,428

   

 

 

2,078,223

 

 

 

 

 

 

 

 

 

Five years later

 

 

 

2,072,866

   

 

 

2,009,608

   

 

 

2,028,211

   

 

 

2,050,124

 

 

 

 

 

 

 

 

 

 

 

Six years later

 

 

 

2,082,409

   

 

 

2,009,480

   

 

 

2,012,943

 

 

 

 

 

 

 

 

 

 

 

 

 

Seven years later

 

 

 

2,082,287

   

 

 

1,997,550

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Eight years later

 

 

 

2,072,850

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Gross cumulative redundancy:

 

 

$

 

253,150

   

 

$

 

228,450

   

 

$

 

199,425

   

 

$

 

143,315

   

 

$

 

206,319

   

 

$

 

230,217

   

 

$

 

145,060

   

 

$

 

69,021

   

 

$

 

0

 

21


Reinsurance

Reinsurance is a transaction between insurance companies in which an original insurer, or ceding company, remits a portion of its premiums to a reinsurer, or assuming company, as payment for the reinsurer assuming a portion of the risk. Reinsurance agreements may be proportional in nature, under which the assuming company shares proportionally in the premiums and losses of the ceding company. This arrangement is known as quota share reinsurance. Reinsurance agreements may also be structured so that the assuming company indemnifies the ceding company against all or a specified portion of losses on underlying insurance policies in excess of a specified amount, which is called an “attachment level” or “retention” in return for a premium, usually determined as a percentage of the ceding company’s primary insurance premiums. This arrangement is known as excess of loss reinsurance. Excess of loss reinsurance may be written in layers, in which a reinsurer or group of reinsurers accepts a band of coverage up to a specified amount. Any liability exceeding the coverage limits of the reinsurance program is retained by the ceding company. The ceding company also bears the credit risk of a reinsurers’ insolvency. In accordance with general industry practices, we purchase excess of loss reinsurance to protect against the impact of large individual, irregularly-occurring losses, and aggregate catastrophic losses from natural perils and terrorism, which would otherwise cause sudden and unpredictable changes in net income and the capital of our insurance subsidiaries.

Reinsurance is used principally:

 

 

 

 

to reduce net liability on individual risks;

 

 

 

 

to provide protection for catastrophic losses; and

 

 

 

 

to stabilize underwriting results and preserve working capital.

Excess of Loss Reinsurance

Our current reinsurance program applies to all loss occurrences during and on policies which are in-force between 12:01 a.m. July 1, 2008 and 12:01 a.m. July 1, 2009. The reinsurance program consists of three agreements, one excess of loss agreement and two catastrophic loss agreements, entered into between our insurance subsidiaries and current and future affiliates of EHI and the subscribing reinsurers. We have the ability to extend the term of the treaty to continue to apply to policies which are in-force at the expiration of the treaty generally for a period of 12 months. We may cancel the agreement at any time if any subscribing reinsurer ceases its underwriting operations, becomes insolvent, is placed in conservation, rehabilitation, liquidation, has a receiver appointed or if any reinsurer is unable to maintain a rating by A.M. Best and/or Standard and Poor’s of at least “A-” throughout the term of the agreement. Covered losses which occur prior to expiration or cancellation of the agreement continue to be obligations of the subscribing reinsurers, subject to the other conditions in the agreement. The subscribing reinsurers may terminate the agreement only for our breach of the obligations of the agreement. We are responsible for the losses if the subscribing reinsurer cannot or refuses to pay.

For the program year beginning July 1, 2008, we have purchased reinsurance up to $200 million. We are solely responsible for any losses we suffer above $200 million except those covered by the Terrorism Insurance Program Reauthorization Act of 2007. Our loss retention for the program year beginning July 1, 2008 is $5 million. This means we have reinsurance for covered losses we suffer between $5 million and $200 million, subject to an aggregate loss cession limitation in the first layer ($5 million in excess of $5 million) of $20 million. Additionally, in the second through fifth layers of our reinsurance program, our ultimate net loss shall not exceed $10 million for any one life, and we are permitted one reinstatement for each layer upon the payment of additional premium.

The agreements include certain exclusions for which our subscribing reinsurers are not liable for losses, including but not limited to losses arising from the following: reinsurance assumed by us under obligatory reinsurance agreements; financial guarantee and insolvency; certain nuclear risks; liability as a member, subscriber or reinsurer of any pool, syndicate or association, but not assigned risk plans; liability arising from participation or membership in any insolvency fund; loss or damage caused by war or civil unrest other than terrorism; certain workers’ compensation business covering persons employed in Minnesota; any loss or damage caused by any act of terrorism involving biological, chemical, nuclear or radioactive pollution or contamination. We have underwriting guidelines which generally require that

22


insured risks fall within the coverage provided in the reinsurance program. Any risks written outside the reinsurance program require the review and approval of our Chief Underwriting Officer and/or Chief Operating Officer.

The agreements provide that we or any subscribing reinsurer may request commutation of any outstanding claim or claims 10 years after the effective date of termination or expiration of the agreements and provide a mechanism for the parties to achieve valuation for commutation. We may require a special commutation of the percentage share of any loss in the reinsurance program of any subscribing reinsurer that is in runoff.

The significant changes between years from our reinsurance program commencing July 1, 2007 to the reinsurance program commencing July 1, 2008 are as follows:

 

 

 

 

improved average aggregate ratings of subscribing reinsurers; and,

 

 

 

 

effective November 1, 2008, our newly acquired insurance subsidiaries were included in our reinsurance program.

Our practice is to select reinsurers with an A.M. Best rating of “A-” or better at treaty inception as indicated in the table below, which provides information about our reinsurers and their participation in our reinsurance program:

 

 

 

 

 

 

 

 

 

 

 

 

 

Reinsurer

 

A.M. Best
Rating

 

$5m
excess of
$5m

 

$10m
excess of
$10m

 

$30m
excess of
$20m

 

$50m
excess of
$50m

 

$100m
excess of
$100m

Arch Reinsurance Company

 

 

 

A

   

 

 

   

 

 

   

 

 

5.00

   

 

 

5.00

   

 

 

5.00

 

Aspen Reinsurance Bermuda

 

 

 

A

   

 

 

   

 

 

5.00

   

 

 

2.50

   

 

 

1.25

   

 

 

2.00

 

Aspen Insurance UK Limited

 

 

 

A

   

 

 

7.40

   

 

 

8.40

   

 

 

8.50

   

 

 

8.50

   

 

 

10.00

 

Axis Specialty Limited

 

 

 

A

   

 

 

   

 

 

7.50

   

 

 

5.00

   

 

 

7.50

   

 

 

7.50

 

Catlin US/OBO Syndicate 2003

 

 

 

A

   

 

 

44.50

   

 

 

17.00

   

 

 

18.00

   

 

 

   

 

 

 

Endurance Specialty Insurance Ltd

 

 

 

A

   

 

 

   

 

 

5.00

   

 

 

5.00

   

 

 

7.00

   

 

 

7.25

 

Everest Reinsurance—US

 

 

 

A

+

 

 

 

 

   

 

 

   

 

 

   

 

 

10.00

   

 

 

 

Everest Reinsurance—Bermuda

 

 

 

A

+

 

 

 

 

   

 

 

   

 

 

4.00

   

 

 

5.00

   

 

 

5.00

 

Hannover Re (Bermuda) Ltd

 

 

 

A

   

 

 

   

 

 

   

 

 

   

 

 

2.50

   

 

 

5.00

 

Hannover Rueckversicherung-AG

 

 

 

A

   

 

 

25.00

   

 

 

15.00

   

 

 

15.00

   

 

 

   

 

 

 

Lloyds Syndicate #0435 FDY(1)

 

 

 

A

   

 

 

   

 

 

5.00

   

 

 

   

 

 

2.50

   

 

 

 

Lloyds Syndicate #0570 ATR(1)

 

 

 

A

   

 

 

   

 

 

3.25

   

 

 

3.25

   

 

 

2.50

   

 

 

 

Lloyds Syndicate #0623 AFB(1)

 

 

 

A

   

 

 

   

 

 

4.25

   

 

 

   

 

 

2.50

   

 

 

 

Lloyds Syndicate #0727 SAM(1).

 

 

 

A

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

2.00

 

Lloyds Syndicate #0780 ADV(1)

 

 

 

A

   

 

 

2.00

   

 

 

   

 

 

   

 

 

   

 

 

2.00

 

Lloyds Syndicate #1084 CSL(1)

 

 

 

A

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

3.00

 

Lloyds Syndicate #1200 HMA Heritage(1)

 

 

 

A

   

 

 

   

 

 

1.30

   

 

 

   

 

 

1.00

   

 

 

1.00

 

Lloyds Syndicate #1400 DRE Imagine(1)

 

 

 

A

   

 

 

   

 

 

1.30

   

 

 

   

 

 

1.00

   

 

 

1.00

 

Lloyds Syndicate #1955 Barbican(1)

 

 

 

A

   

 

 

2.50

   

 

 

2.50

   

 

 

   

 

 

2.50

   

 

 

1.00

 

Lloyds Syndicate #2001 AMLIN(1).

 

 

 

A

+

 

 

 

 

   

 

 

   

 

 

   

 

 

3.00

   

 

 

3.00

 

Lloyds Syndicate #2003 SJC(1)

 

 

 

A

   

 

 

   

 

 

   

 

 

2.00

   

 

 

7.25

   

 

 

 

Lloyds Syndicate #2987 BRT(1)

 

 

 

A

   

 

 

6.20

   

 

 

4.50

   

 

 

5.45

   

 

 

5.00

   

 

 

6.00

 

Lloyds Syndicate #566 STN(1)

 

 

 

A

   

 

 

5.00

   

 

 

   

 

 

   

 

 

5.50

   

 

 

3.00

 

Lloyds Syndicate #4472 LIB(1)

 

 

 

A

   

 

 

7.40

   

 

 

   

 

 

   

 

 

3.00

   

 

 

4.50

 

Munich Reinsurance America, Inc

 

 

 

A

+

 

 

 

 

   

 

 

   

 

 

8.00

   

 

 

10.00

   

 

 

11.00

 

Odyssey America Reinsurance Corporation

 

 

 

A

   

 

 

   

 

 

5.00

   

 

 

5.00

   

 

 

   

 

 

 

Renaissance Re

 

 

 

A

+

 

 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

0.50

 

Safety National

 

 

 

A

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

5.00

 

Tokio Millenium Re

 

 

 

A

+

 

 

 

 

   

 

 

15.00

   

 

 

13.30

   

 

 

7.50

   

 

 

15.25

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

100.00

%

 

 

 

 

100.00

%

 

 

 

 

100.00

%

 

 

 

 

100.00

%

 

 

 

 

100.00

%

 

 

 

 

 

 

 

 

 

 

 

 

 

 


 

 

(1)

 

 

 

The overall rating of Lloyds from a security standpoint is called the market or “floor” rating. The existence of this market rating reflects the “chain of security” and, in particular, the role of the Lloyd’s Central Fund which ensures that each syndicate is backed by capital consistent with a financial strength rating of at least that of the “Lloyds” market. These syndicates are rated under the overall rating of Lloyds. Some syndicates have their own separate rating which is higher than the floor rating.

23


LPT Agreement

On July 1, 1999, the Nevada legislature enacted Senate Bill 37 (SB37). The provisions of SB37 specifically stated that the Fund could take retroactive credit as an asset or a reduction of liability, amounts ceded to (reinsured with) assuming insurers with security based on discounted reserves for losses related to periods beginning before July 1, 1995, at a rate not to exceed 6%.

As a result of SB37, the Fund entered into the LPT Agreement, a retroactive 100% quota share reinsurance agreement, in a loss portfolio transfer transaction with third party reinsurers (the LPT Agreement). The LPT Agreement commenced on June 30, 1999 and will remain in effect until all claims for loss and outstanding loss under the covered policies have closed, the agreement is commuted, or terminated, upon the mutual agreement of the parties, or the reinsurer’s aggregate maximum limit of liability is exhausted, whichever occurs earlier. The LPT Agreement does not provide for any additional termination terms. The LPT Agreement substantially reduced the Fund’s exposure to losses for pre-July 1, 1995 Nevada insured risks. On January 1, 2000, our Nevada insurance subsidiary assumed all of the assets, liabilities and operations of the Fund, including the Fund’s rights and obligations associated with the LPT Agreement.

Under the LPT Agreement, the Fund initially ceded $1.525 billion in liabilities for the incurred but unpaid losses and LAE related to claims incurred prior to July 1, 1995, for consideration of $775 million in cash. The LPT Agreement, which ceded to the reinsurers substantially all of the Fund’s outstanding losses as of June 30, 1999 for claims with original dates of injury prior to July 1, 1995, provides coverage for losses up to $2 billion, excluding losses for burial and transportation expenses. As of December 31, 2008 and 2007, the estimated remaining liabilities subject to the LPT Agreement were approximately $929.6 million, and $971.7 million, respectively. Losses and LAE paid with respect to the LPT Agreement totaled approximately $447.9 million and $405.7 million through December 31, 2008 and 2007, respectively.

The reinsurers agreed to assume responsibilities for the claims at the benefit levels which existed in June 1999. The LPT Agreement required the reinsurers to each place assets supporting the payment of claims by them in individual trusts that require that collateral be held at a specified level. The level must not be less than the outstanding reserve for losses and a loss expense allowance equal to 7% of estimated paid losses discounted at a rate of 6%. If the assets held in trust fall below this threshold, we can require the reinsurers to contribute additional assets to maintain the required minimum level. The value of these assets as of December 31, 2008 and 2007 was $998.4 million and $838.3 million, respectively. One of the reinsurers has collateralized its obligations under the LPT Agreement by placing the stock of a publicly held corporation, with a value of $693.8 million at December 31, 2008, in a trust to secure the reinsurer’s losses of $511.3 million. The value of this collateral is therefore subject to fluctuations in the market price of such stock. The other reinsurers have placed treasury and fixed income securities in trusts to collateralize their losses.

The current reinsurers party to the LPT Agreement include ACE Bermuda Insurance Limited, XL Mid Ocean Reinsurance Company Ltd. and National Indemnity Company (NICO). The contract provides that during the term of the agreement all reinsurers need to maintain a rating of no less than “A-” as determined by A.M. Best.

Recoverability of Reinsurance

Reinsurance makes the assuming reinsurer liable to the ceding company, or original insurer, to the extent of the reinsurance. It does not, however, discharge the ceding company from its primary liability to its policyholders in the event the reinsurer is unable to meet its obligations under such reinsurance. Therefore, we are subject to credit risk with respect to the obligations of our reinsurers. We regularly perform internal reviews of the financial strength of our reinsurers. However, if a reinsurer is unable to meet any of its obligations to our insurance subsidiaries under the reinsurance agreements, our insurance subsidiaries would be responsible for the payment of all claims and claims expenses that we have ceded to such reinsurer. We do not believe that our insurance subsidiaries are currently exposed to any material credit risk. In addition to selecting financially strong reinsurers, we continue to monitor and evaluate our reinsurers to minimize our exposure to credit risks or losses from reinsurer insolvencies. At December 31, 2008, $998.4 million was in a trust account for reinsurance related to the LPT Agreement and an additional $7.8 million was collateralized by cash or letter of credit.

24


The availability, amount and cost of reinsurance are subject to market conditions and to our experience with insured losses. There can be no assurance that our reinsurance agreements can be renewed or replaced prior to expiration upon terms as satisfactory as those currently in effect. If we were unable to renew or replace our reinsurance agreements:

 

 

 

 

our net liability on individual risks would increase;

 

 

 

 

we would have greater exposure to catastrophic losses;

 

 

 

 

our underwriting results would be subject to greater variability; and

 

 

 

 

our underwriting capacity would be reduced.

Certain information regarding our ceded reinsurance recoverables as of December 31, 2008 for reinsurance programs incepted prior to June 30, 2008 is provided in the following table:

 

 

 

 

 

 

 

 

 

Reinsurer

 

Rating(1)

 

Total
Paid

 

Total
Unpaid
Losses and
LAE, net

 

Total

 

 

(in thousands)

ACE Bermuda Insurance Limited

 

 

 

A

+

 

 

 

$

 

1,032

   

 

$

 

92,960

   

 

$

 

93,992

 

Ace Property & Casualty Insurance Company

 

 

 

A

+

 

 

 

 

   

 

 

1,376

   

 

 

1,376

 

American Healthcare Indemnity Co

 

 

 

B

+

 

 

 

 

   

 

 

3,354

   

 

 

3,354

 

Aspen Insurance UK Limited

 

 

 

A

   

 

 

21

   

 

 

7,836

   

 

 

7,857

 

Continental Casualty Company

 

 

 

A

   

 

 

1,668

   

 

 

27,244

   

 

 

28,912

 

Everest Reinsurance Company

 

 

 

A

+

 

 

 

 

50

   

 

 

4,194

   

 

 

4,244

 

Finial Re

 

 

 

A

-

 

 

 

 

   

 

 

4,550

   

 

 

4,550

 

Hannover Rueckversicherung-AG

 

 

 

A

   

 

 

15

   

 

 

8,860

   

 

 

8,875

 

Max Bermuda, Ltd

 

 

 

A

-

 

 

 

 

36

   

 

 

4,961

   

 

 

4,997

 

Munich Reinsurance America, Inc

 

 

 

A

+

 

 

 

 

57

   

 

 

12,442

   

 

 

12,499

 

National Indemnity Company

 

 

 

A

++

 

 

 

 

5,675

   

 

 

511,281

   

 

 

516,956

 

National Union Fire Insurance Company of Pittsburgh

 

 

 

A

   

 

 

32

   

 

 

2,248

   

 

 

2,280

 

Odyssey America Reinsurance Corp

 

 

 

A

   

 

 

   

 

 

1,161

   

 

 

1,161

 

Paris Re S.A

 

 

 

A

-

 

 

 

 

11

   

 

 

1,590

   

 

 

1,601

 

ReliaStar Life Insurance Company

 

 

 

A

+

 

 

 

 

66

   

 

 

3,080

   

 

 

3,146

 

RSUI Indemnity Company

 

 

 

A

   

 

 

   

 

 

2,112

   

 

 

2,112

 

St. Paul Fire & Marine Insurance Company

 

 

 

A

+

 

 

 

 

10

   

 

 

5,151

   

 

 

5,161

 

Swiss Reinsurance America Company

 

 

 

A

+

 

 

 

 

136

   

 

 

16,073

   

 

 

16,209

 

Tokio Millenium Re Ltd

 

 

 

A

++

 

 

 

 

71

   

 

 

6,124

   

 

 

6,195

 

Westport Insurance Company

 

 

 

A

+

 

 

 

 

8

   

 

 

1,740

   

 

 

1,748

 

XL Reinsurance Limited

 

 

 

A

   

 

 

3,612

   

 

 

325,360

   

 

 

328,972

 

Lloyds Syndicates

 

 

 

A

   

 

 

   

 

 

22,707

   

 

 

22,707

 

All Other

 

Various

 

 

 

223

   

 

 

8,611

   

 

 

8,834

 

 

 

 

 

 

 

 

 

 

Total

 

 

 

 

$

 

12,723

   

 

$

 

1,075,015

   

 

$

 

1,087,738

 

 

 

 

 

 

 

 

 

 


 

 

(1)

 

 

 

A.M. Best’s highest financial strength ratings for insurance companies are “A++” and “A+” (superior) and “A” and “A-” (excellent).

We review the aging of our reinsurance recoverables on a quarterly basis. At December 31, 2008, 4.3% of our reinsurance recoverables on paid losses were 90 days overdue.

Inter-Company Reinsurance Pooling Agreement

Our insurance subsidiaries are parties to an inter-company pooling agreement. Under this agreement, the results of underwriting operations of each company are transferred to and combined with those of the others and the combined results are then reapportioned. The allocations under the pooling agreement are as follows:

 

 

 

 

EICN—53%

 

 

 

 

ECIC—27%

 

 

 

 

EPIC—10%

 

 

 

 

EAC—10%

25


The pooling percentages are set forth in the inter-company pooling agreement and do not change between periods. These pooling percentages were established October 1, 2008, the effective date of the agreement, and include our newly acquired insurance subsidiaries EPIC and EAC. The allocation percentages were, in part, based upon the relative amount of unconsolidated company statutory surplus of the respective companies at the time of the agreement.

Our insurance subsidiaries rely on the capacity of the entire pool rather than just on their own capital and surplus. Transactions under the pooling agreement are eliminated on consolidation and have no impact on our consolidated GAAP financial statements.

Investments

We derive investment income from our invested assets. We invest our insurance subsidiaries’ total statutory surplus and funds to support our loss reserves and our unearned premiums. As of December 31, 2008, the total amortized cost of our investment portfolio was $1.99 billion and the fair market value of the portfolio was $2.04 billion.

We employ an investment strategy that emphasizes asset quality and considers maturities of fixed maturity securities against anticipated claim payments and expenditures or other liabilities. The amounts and types of our investments are governed by statutes and regulations in the states in which our insurance subsidiaries are domiciled. Our investment portfolio is structured so that investments mature periodically over time in reasonable relation to current expectations of future claim payments. Currently, we make claim payments from positive cash flow from operations and invest excess cash in securities with appropriate duration targets to balance against anticipated future claim payments.

At December 31, 2008, our investment portfolio, which is classified as available-for-sale, was made up almost entirely of investment grade fixed maturity securities whose fair values may fluctuate due to the latest interest rate changes. We strive to limit interest rate risk by managing the duration of our fixed maturity securities. As of December 31, 2008, our investments (excluding cash and cash equivalents) had a duration of 4.74. To minimize interest rate risk, our portfolio is weighted toward short-term and intermediate-term bonds; however, our investment strategy balances consideration of duration, yield and credit risk. We strive to limit credit risk by investing in a fixed maturity securities portfolio that is heavily weighted toward short-term to intermediate-term, investment grade securities rated “A” or better. Our investment guidelines require that the minimum weighted average quality of our fixed maturity securities portfolio shall be “AA.” As of December 31, 2008, our fixed maturity securities portfolio had an average quality of “AA+,” with approximately 79.9% of the carrying value of our investment portfolio rated “AA” or better.

We classify our portfolio of equity securities as available-for-sale and carry these securities on our balance sheet at fair value. Accordingly, changes in market prices of the equity securities we hold in our combined investment portfolio result in increases or decreases in our total assets. In order to minimize our exposure to equity price risk, we invest primarily in equity securities of mid-to-large capitalization issuers and seek to diversify our equity holdings across several industry sectors. Our objective during the past few years has been to reduce equity exposure as a percentage of our total portfolio by increasing our fixed maturity securities. Our investment strategy allows a maximum exposure of 20% of our total combined investment portfolio in equity securities, with our current equity allocation at 2.9% of the total portfolio at December 31, 2008. Currently, our equity position has fallen below our selected target of 6.0% due to declining market valuations and the consolidation of the AmCOMP investment portfolio into ours.

Our investment strategy focuses on maximizing economic value through dynamic asset and liability management, subject to regulatory and rating agency constraints, at the consolidated and individual company level. The asset allocation is reevaluated by the Finance Committee of the Board of Directors at a detailed level on a quarterly basis. We employ Conning Asset Management (Conning) as our independent investment manager. Conning follows our written investment guidelines based upon strategies approved by our Board of Directors. In addition to the construction and management of the portfolio, we utilize investment advisory services of Conning. These services include investment accounting and company modeling using Dynamic Financial Analysis (DFA). The DFA tool is utilized

26


in developing a tailored set of portfolio targets and objectives, which in turn, is used in constructing an optimal portfolio.

Prior to the acquisition, AmCOMP employed Regions Bank to act as its independent investment advisor. Regions Bank followed AmCOMP’s written investment guidelines based upon strategies approved by AmCOMP’s Board of Directors. AmCOMP’s investment portfolio consisted solely of fixed maturity securities. The portfolio held no asset-backed securities except for mortgage-backed securities. As of October 31, 2008, the date of the acquisition, the fair value of AmCOMP’s investment portfolio was $418.6 million. Subsequent to the acquisition, we consolidated the AmCOMP investment portfolio into ours, which is managed by Conning.

We regularly monitor our portfolio to preserve principal values whenever possible. All securities in an unrealized loss position are reviewed to determine whether the impairment is other-than-temporary. Factors considered in determining whether a decline is considered to be other-than-temporary include length of time and the extent to which fair value has been below cost, the financial condition and near-term prospects of the issuer, and our ability and intent to hold the security until its expected recovery or maturity.

The following table shows the fair value, the percentage of the fair value to total invested assets and the tax equivalent yield based on the fair value of each category of invested assets as of December 31, 2008:

 

 

 

 

 

 

 

Category

 

Fair Value

 

Percentage
of Total

 

Yield

 

 

(in thousands, except percentages)

U.S. Treasury securities

 

 

$

 

162,321

   

 

 

7.9

%

 

 

 

 

4.17

 

U.S. Agency securities

 

 

 

157,092

   

 

 

7.7

   

 

 

4.69

 

Tax-exempt municipal securities

 

 

 

983,811

   

 

 

48.2

   

 

 

5.64

 

Corporate securities

 

 

 

297,316

   

 

 

14.6

   

 

 

6.30

 

Mortgage-backed securities

 

 

 

329,259

   

 

 

16.1

   

 

 

5.77

 

Commercial mortgage-backed securities

 

 

 

37,588

   

 

 

1.8

   

 

 

5.02

 

Asset-backed securities

 

 

 

17,028

   

 

 

0.8

   

 

 

4.92

 

Equities

 

 

 

58,526

   

 

 

2.9

   

 

 

3.80

 

 

 

 

 

 

 

 

Total

 

 

$

 

2,042,941

   

 

 

100.0

%

 

 

 

 

 

 

 

 

 

 

Weighted average yield

 

 

 

 

 

 

 

5.52

 

For securities that are redeemable at the option of the issuer and have a fair value that is greater than par value, the maturity used for the table below is the earliest redemption date. For securities that are redeemable at the option of the issuer and have a fair value that is less than par value, the maturity used for the table below is the final maturity date. For mortgage-backed securities, mortgage prepayment assumptions are utilized to project the expected principal redemptions for each security, and the maturity used in the table below is the average life based on those projected redemptions at December 31, 2008:

 

 

 

 

 

Remaining Time to Maturity

 

Fair Value

 

Percentage of
Total Fair Value

 

 

(in thousands except percentages)

Less than one year

 

 

$

 

184,599

   

 

 

9.3

%

 

One to five years

 

 

 

755,029

   

 

 

38.1

 

Five to ten years

 

 

 

681,553

   

 

 

34.3

 

More than ten years

 

 

 

363,234

   

 

 

18.3

 

 

 

 

 

 

Total

 

 

$

 

1,984,415

   

 

 

100.0

%

 

 

 

 

 

 

Information Technology

Core Systems

Policy Administration. Our primary underwriting and policy administration system, EACCESS, went into production in July 2006. EACCESS includes the base systems for underwriting evaluation, quoting, rating, policy issuance, policy servicing and endorsements and has been customized to support

27


specific company requirements. We intend to phase out our legacy policy administration systems by 2010, including the system used by our newly acquired insurance subsidiaries, EPIC and EAC.

Claims Administration. In January 2009, we replaced the claims administration system previously used by EICN and ECIC and will migrate EPIC and EAC to this system before year-end 2009. This new system provides enhanced productivity through more efficient processing, improved management reporting and supports business rules that drive more effective claims handling.

Business Continuity/Disaster Recovery

We maintain business continuity and disaster recovery plans for our critical business functions, including the restoration of information technology infrastructure and applications. We have three data centers that act as production facilities as well as disaster recovery sites for each other. In addition, we utilize an offsite tape storage facility.

Regulation

Holding Company Regulation

Nearly all states have enacted legislation that regulates insurance holding company systems. Each insurance company in a holding company system is required to register with the insurance supervisory agency of its state of domicile and furnish information concerning the operations of companies within the holding company system that may materially affect the operations, management or financial condition of the insurers within the system. Under these laws, the respective state insurance departments may examine us at any time, require disclosure of material transactions and require prior notice of, or approval for, certain transactions. All transactions within a holding company system affecting an insurer must have fair and reasonable terms and are subject to other standards and requirements established by law and regulation.

Pursuant to applicable insurance holding company laws, EICN is required to register with the Nevada DOI, ECIC is required to register with the California Department of Insurance (California DOI), and EPIC and EAC are required to register with the Florida OIR. All transactions within a holding company system affecting an insurer must have fair and reasonable terms, charges or fees for services performed must be reasonable, and the insurer’s total statutory surplus following any transaction must be both reasonable in relation to its outstanding liabilities and adequate for its needs. Notice to state insurance regulators is required prior to the consummation of certain affiliated and other transactions involving our insurance subsidiaries and such transactions may be disapproved by the state insurance regulators.

Change of Control

Under Nevada insurance law and our amended and restated articles of incorporation that became effective on February 5, 2007, for a period of five years following February 5, 2007, no person may acquire or offer to acquire beneficial ownership of five percent or more of any class of our voting securities without the prior approval by the Nevada Commissioner of Insurance (Nevada Commissioner) of an application for acquisition. Under Nevada insurance law, the Nevada Commissioner may not approve an application for such acquisition unless the Commissioner finds that: (a) the acquisition will not frustrate the plan of conversion as approved by our members and the Commissioner; (b) the Board of Directors of EICN has approved the acquisition or extraordinary circumstances not contemplated in the plan of conversion have arisen which would warrant approval of the acquisition; and (c) the acquisition is consistent with the purpose of relevant Nevada insurance statutes to permit conversions on terms and conditions that are fair and equitable to the members eligible to receive consideration. Accordingly, as a practical matter, any person seeking to acquire us within five years after February 5, 2007 may only do so with the approval of our Board of Directors. On December 14, 2007, the Nevada Commissioner approved our application to waive any beneficial ownership over 5% if the excess was caused by the 2007 stock repurchase program.

In addition, the insurance laws of California, Florida and Nevada generally require that any person seeking to acquire control of a domestic insurance company must obtain the prior approval of the insurance commissioner. Insurance laws in many states in which we are licensed contain provisions that

28


require pre-notification to the insurance commissioner of a change in control of a non-domestic insurance company licensed in those states. “Control” is generally presumed to exist through the direct or indirect ownership of ten percent or more of the voting securities of a domestic insurance company or of any entity that controls a domestic insurance company. Generally, other states’ insurance laws require prior notification to the insurance department of those states of a change of control of a non-domiciliary insurance company licensed to transact insurance in that state. Because we have insurance subsidiaries domiciled in California, Florida and Nevada, and are licensed in numerous other states, any future transaction that would constitute a change in control of us would generally require the party seeking to acquire control to obtain the prior approval of the California, Florida and Nevada Commissioners, and may require pre-notification of the change of control in those states that have adopted pre-notification provisions.

State Insurance Regulation

Insurance companies are subject to regulation and supervision by the department of insurance in the state in which they are domiciled and, to a lesser extent, other states in which they conduct business. As an insurance holding company, we, as well as our insurance subsidiaries, are subject to regulation by the states in which our insurance subsidiaries are domiciled or transact business. These state agencies have broad regulatory, supervisory and administrative powers, including among other things, the power to grant and revoke licenses to transact business, license agencies, set the standards of solvency to be met and maintained, determine the nature of, and limitations on, investments and dividends, approve policy forms and rates in some states, periodically examine financial statements, determine the form and content of required financial statements, and periodically examine market conduct.

Detailed annual and quarterly financial statements, prepared in accordance with statutory accounting practices, and other reports are required to be filed with the insurance regulator in all states in which we are licensed to transact business. The California DOI, Florida OIR, and Nevada DOI periodically examine the statutory financial statements of their respective domiciliary insurance companies. California and Nevada are currently examining ECIC and EICN.

In Florida, workers’ compensation insurance companies are subject to statutes related to excessive profits. Florida excessive profits are calculated based upon a statutory formula that is applied over rolling three year periods. Workers’ compensation insurers are required to file annual excessive profit forms and to return any “Florida excessive profits” to policyholders in the form of a cash refund or credit toward future purchase of insurance.

In addition, many states have laws and regulations that limit an insurer’s ability to withdraw from a particular market. For example, states may limit an insurer’s ability to cancel or not renew policies. Furthermore, certain states prohibit an insurer from withdrawing one or more lines of business from the state, except pursuant to a plan that is approved by the state insurance department. The state insurance department may disapprove a plan that may lead to market disruption. Laws and regulations that limit cancellation and non-renewal and that subject program withdrawals to prior approval requirements may restrict our ability to exit unprofitable markets.

Changes in individual state regulation of workers’ compensation may create a greater or lesser demand for some or all of our products and services, or require us to develop new or modified services in order to meet the needs of the marketplace and to compete effectively in that marketplace. In addition, many states limit the maximum amount of dividends and other payments that may be paid in any year by insurance companies to their stockholders and affiliates. This may limit the amount of distributions that may be made by our insurance subsidiaries.

Premium Rate Restrictions

Among other matters, state laws regulate not only the amounts and types of workers’ compensation benefits that must be paid to injured workers, but in some instances the premium rates that may be charged by us to insure businesses for those liabilities. For example, in some states, including Florida, Wisconsin and Idaho, workers’ compensation insurance rates are set by the state insurance regulators and are adjusted periodically. This style of rate regulation is referred to as

29


“administered pricing.” Some of these states allow insurance companies to file rates that deviate upwards or downwards from the benchmark rates set by the insurance regulators.

In the vast majority of states, workers’ compensation insurers have flexibility to offer rates that reflect the risk assumed by the insurer based on each employer’s profile. These states are referred to as “loss cost” states. The majority of the states in which we currently operate, including California and Nevada, are loss cost states. In loss cost states, the state first approves a set of loss costs that provide for expected loss and, in most cases, LAE payments, which are prepared by an insurance rating bureau (for example, the WCIRB in California and the NCCI in Nevada). An insurer then selects a factor, known as a loss cost multiplier, to apply to loss costs to determine its insurance rates. In these states, regulators permit pricing flexibility primarily through: (a) the selection of the loss cost multiplier; and (b) schedule rating modifications that allow an insurer to adjust premiums upwards or downwards for specific risk characteristics of the policyholder such as:

 

 

 

 

type of work conducted at the premises or work environment;

 

 

 

 

on-site medical facilities;

 

 

 

 

level of employee safety;

 

 

 

 

use of safety equipment; and

 

 

 

 

policyholder management practices.

Financial, Dividend and Investment Restrictions

State laws require insurance companies to maintain minimum levels of surplus and place limits on the amount of premiums a company may write based on the amount of that company’s surplus. These limitations may restrict the rate at which our insurance operations can grow.

State laws also require insurance companies to establish reserves for payments of policyholder liabilities and impose restrictions on the kinds of assets in which insurance companies may invest. These restrictions may require us to invest in assets more conservatively than we would if we were not subject to state law restrictions and may prevent us from obtaining as high a return on our assets as we might otherwise be able to realize absent the restrictions.

The ability of EHI to pay dividends on our common stock and to pay other expenses will be dependent to a significant extent upon the ability of our Nevada domiciled insurance company, EICN, and our Florida domiciled insurance company, EPIC, to pay dividends to their immediate holding company, EGI and, in turn, the ability of EGI to pay dividends to EHI.

Nevada law limits the payment of cash dividends by EICN to EGI by providing that payments cannot be made except from available and accumulated surplus money otherwise unrestricted (unassigned) and derived from realized net operating profits and realized and unrealized capital gains. A stock dividend may be paid out of any available surplus. A cash or stock dividend otherwise prohibited by these restrictions, such as a dividend from special assigned surplus, may only be declared and distributed upon the prior approval of the Nevada Commissioner and are considered extraordinary. Special surplus for EICN is assigned surplus funds relating to statutory accounting for retroactive reinsurance and is not available for dividends without prior approval from the Nevada Commissioner.

EICN must give the Nevada Commissioner prior notice of any extraordinary dividends or distributions that it proposes to pay to EGI, even when such a dividend or distribution is to be paid out of available and otherwise unrestricted (unassigned) surplus. EICN may pay such an extraordinary dividend or distribution if the Nevada Commissioner either approves or does not disapprove the payment within 30 days after receiving notice of its declaration. An extraordinary dividend or distribution is defined by statute to include any dividend or distribution of cash or property whose fair market value, together with that of other dividends or distributions made within the preceding 12 months, exceeds the greater of: (a) 10% of EICN’s statutory surplus as regards policyholders at the next preceding December 31 or (b) EICN’s statutory net income, not including realized capital gains, for the 12-month period ending at the next preceding December 31.

As of December 31, 2008 and 2007, EICN had positive unassigned surplus of $205.9 million and $149.0 million, respectively. In December 2007, EICN requested and received approval for an

30


extraordinary dividend of $200.0 million from special surplus from the Nevada Commissioner. On May 15, 2008, EICN requested and received approval from the Nevada Commissioner to increase the $200.0 million extraordinary divided to $275.0 million subject to maintaining the risk-based capital (RBC) total adjusted capital of EICN above a specified level on the date of payment after giving effect to such payment. On August 18, 2008, EICN requested and received approval from the Nevada Commissioner to increase the extraordinary dividend from $275.0 million to a total of $355.0 million subject to the same terms and conditions. The additional extraordinary dividend provided capital management flexibility. As of December 31, 2008, $355.0 million in extraordinary dividends had been paid to EHI.

As the direct owner of ECIC, EICN will be the direct recipient of any dividends paid by ECIC. The ability of ECIC to pay dividends to EICN is limited by California law, which provides that absent prior approval of the California Commissioner, dividends can only be declared from earned surplus. Earned surplus as defined by California law excludes amounts: (a) derived from the net appreciation in the value of assets not yet realized; or (b) derived from an exchange of assets, unless the assets received are currently realizable in cash. In addition, California law provides that the appropriate insurance regulatory authorities in the State of California must approve (or, within a 30-day notice period, not disapprove) any dividend that, together with all other such dividends paid during the preceding 12 months, exceeds the greater of: (a) 10% of ECIC’s statutory surplus as regards policyholders at the preceding December 31; or (b) 100% of the net income for the preceding year. As of December 31, 2008 and 2007, ECIC had positive unassigned surplus of $120.2 million and $49.2 million, respectively, paid as a dividend to EICN.

The ability of ECIC to pay dividends was further limited by restrictions imposed by the California DOI in its approval of our October 1, 2008, reinsurance pooling agreement. Under that approval: (a) ECIC must initiate discussions of its business plan with the California DOI if its premium to policyholder surplus ratio exceeds 1.5 to 1; (b) ECIC will not exceed a ratio of premium to policyholder surplus of 2 to 1 without approval of the California DOI; (c) if at any time ECIC’s policyholder surplus decreases to 80% or less than the September 30, 2008 balance, ECIC shall cease issuing new policies in California but may continue to renew existing policies until it has (i) received a capital infusion to bring its surplus position to the same level as that as of September 30, 2008 and (ii) submitted a new business plan to the California DOI; (d) ECIC will maintain a RBC level of at least 350%; (e) should ECIC fail to comply with any commitments listed herein, ECIC will consent to any request by the California DOI to cease issuing new policies in California, but may continue to renew existing policies until such time that as ECIC is able to achieve full compliance with each commitment; and (f) the obligations listed shall only terminate with the written consent of the California DOI.

Under Florida law, without regulatory approval, an insurance company may not pay dividends or make other distributions of cash or property to its stockholders within a 12-month period with a total fair market value exceeding the larger of 10% of surplus as of the preceding December 31st or 100% of its prior year’s net income, not including realized capital gains, or net investment income plus a three-year carry forward. This may limit the amount of dividends that we receive from our Florida insurance subsidiaries (EPIC and EAC), which in turn may limit the amount of capital available to us for debt service, growth, dividend payments to stockholders, and other purposes. As the direct owner of EAC, EPIC will be the direct recipient of any dividends paid by EAC. The ability of EAC to pay dividends to EPIC is, in turn, limited by Florida law. As of December 31, 2008, EPIC and EAC had positive unassigned surplus of $69.0 million and $12.4 million, respectively.

Guaranty Fund Assessments

In most of the states where our insurance company subsidiaries are licensed to transact business, there is a requirement that property and casualty insurers doing business within each such state participate as member insurers in a guaranty association, which is organized to pay contractual benefits owed pursuant to insurance policies issued by impaired, insolvent or failed insurers. These associations levy assessments, up to prescribed limits, on all member insurers in a particular state on the basis of the proportionate share of the premium written by member insurers.

In California, unpaid workers’ compensation liabilities from insolvent insurers are the responsibility of the California Insurance Guarantee Association (CIGA). We pass CIGA assessments on to our

31


policyholders, via a surcharge based upon the estimated annual premium at the policy’s inception. We have received, and expect to continue to receive, these guaranty fund assessments, which are paid to CIGA based on the premiums written. As of December 31, 2008, we recorded an asset of $7.7 million for assessments paid to CIGA that includes prepaid policy surcharges still to be collected in the future from policyholders. We also write workers’ compensation insurance in other states with similar obligations as those in California. In these states, we are directly responsible for payment of the assessment. We recorded an estimate of $4.6 million and $1.1 million for our expected liability for guaranty fund assessments at December 31, 2008 and 2007, respectively. The guaranty fund assessments are expected to be paid within two years of recognition.

Property and casualty insurance company insolvencies or failures may result in additional guaranty fund assessments to our insurance company subsidiaries at some future date. At this time we are unable to determine the impact, if any, such assessments may have on our financial position or results of operations. We have established liabilities for guaranty fund assessments with respect to insurers that are currently subject to insolvency proceedings.

Second Injury Funds

Most states (and all of the states in which we operate) have laws that provide for second injury funds to provide compensation to injured employees for aggravation of a prior condition or injury. Their purpose is to protect employers from higher insurance costs that can occur when a subsequent injury combines with a prior disability to result in substantially increased medical or disability costs than the subsequent injury alone would have produced. This protects an employer from loss or increased insurance cost because it hires or retains an employee who has a disability. Funding is provided pursuant to individual state statutes or regulations and typically is made by assessments on insurance companies based on premiums paid, losses paid by the fund or losses paid by the insurance industry. For example, Florida has assessed an annual rate of 4.52% of net premiums written since 2000 for its second injury fund.

Pooling Arrangements

In addition, as a condition to conduct business in some states, including California, insurance companies are required to participate in mandatory workers’ compensation shared market mechanisms, or pooling arrangements, which provide workers’ compensation insurance coverage to private businesses that are otherwise unable to obtain coverage due, for example, to their prior loss experience.

Closed Block

As required by Nevada law, we established a closed block as of February 5, 2007 for the preservation of the reasonable dividend expectations of eligible members and other policyholders. Certain policies entitle the holder to receive distributions from the surplus of EICN in accordance with the terms of a dividend plan or program with respect to such policy. The closed block was created for the benefit of: (a) all policies issued by EICN that were in-force as of February 5, 2007, and that were participating pursuant to a dividend plan or program of EICN and (b) all policies that were no longer in-force as of February 5, 2007, but that were participating pursuant to a dividend plan or program of EICN, that had an inception date that was not earlier than 24 months prior to, and not later, than February 5, 2007, and for which a participating policy dividend has not been calculated, declared and paid by EICN as of February 5, 2007. The requirements for the closed block ended on February 5, 2009 and the remaining funds of approximately $1.2 million reverted to EICN.

IRIS Ratios

The Insurance Regulatory Information System (IRIS) is a system established by NAIC to provide state regulators with an integrated approach to monitor the financial condition of insurers for the purposes of detecting financial distress and preventing insolvency. IRIS identifies 13 key financial ratios based on year-end data with each ratio identified with a “usual range” of result. These ratios assist state insurance departments in executing their statutory mandate to oversee the financial condition of insurance companies.

32


As of December 31, 2008, our insurance subsidiaries had the following ratios outside the usual range:

 

 

 

 

 

 

 

 

 

Company

 

Ratio

 

Usual Range

 

Actual
Results

 

Reason for Unusual Results

EICN

 

Investment yield

 

6.5% to 3.0%

 

7.0%

 

EICN’s investment income increased primarily due to the payment of a dividend from ECIC.

EICN

 

Liabilities to liquid assets

 

105.0% to 0.0%

 

200.0%

 

This ratio is impacted by funds withheld, (asset and liability) under the inter-company pooling agreement.

EICN

 

Gross in policyholders’ surplus

 

50.0% to -10.0%

 

-43.0%

 

EICN’s surplus decreased due to the payment of the extraordinary dividends in the amount of $355.0 million to EHI.

EICN

 

Net change in adjusted policyholders’ surplus

 

25.0% to -10.0%

 

-43.0%

 

EICN’s surplus decreased due to the payment of the extraordinary dividends in the amount of $355.0 million to EHI.

ECIC

 

Liabilities to liquid assets

 

105.0% to 0.0%

 

126.0%

 

This ratio is impacted by funds withheld, (asset and liability) under the inter-company pooling agreement.

EPIC

 

Change in net premiums written

 

33.0% to -33.0%

 

-59.0%

 

Net premiums written decreased in connection with the commutation of the historical pooling agreement with EAC and entrance into a new pooling agreement with EICN, ECIC & EAC.

EPIC

 

Liabilities to liquid assets

 

105.0% to 0.0%

 

152.0%

 

This ratio is impacted by funds withheld, (asset and liability) under the inter-company pooling agreement.

EAC

 

Change in net premiums written

 

33.0% to -33.0%

 

-46.0%

 

Net premiums written decreased in connection with the commutation of the historical pooling agreement with EAC and entrance into a new pooling agreement with EICN, ECIC & EAC.

EAC

 

Investment yield

 

6.5% to 3.0%

 

1.4%

 

Low investment yields are due to approval and payment of inter- company surplus note interest during the year, which reduces investment income. Surplus note interest is recognized on a statutory accounting basis when approved by the Florida OIR. On a GAAP basis this expense was accrued as incurred and included in interest expense.

EAC

 

Liabilities to liquid assets

 

10.5% to 0.0%

 

151.0%

 

This ratio is impacted by funds withheld, (asset and liability) under the inter-company pooling agreement.

33


Insurance regulators will generally begin to investigate, monitor or make inquiries of an insurance company if four or more of the Company’s ratios fall outside the usual ranges. Although these inquiries can take many forms, regulators may require the insurance company to provide additional written explanation as to the causes of the particular ratios being outside of the usual range, the actions being taken by management to produce results that will be within the usual range in future years and what, if any, actions have been taken by the insurance regulator of the insurers’ state of domicile. Regulators are not required to take action if an IRIS ratio is outside of the usual range, but depending upon the nature and scope of the particular insurance company’s exception (for example, if a particular ratio indicates an insurance company has insufficient capital) regulators may act to reduce the amount of insurance the company can write or revoke the insurers’ certificate of authority and may even place the company under supervision.

None of our insurance subsidiaries are currently subject to any action by any state insurance department with respect to the IRIS ratios described above.

Risk-Based Capital (RBC) Requirement

The NAIC has adopted an RBC formula to be applied to all insurance companies. RBC is a method of measuring the amount of capital appropriate for an insurance company to support its overall business operations in light of its size and risk profile. RBC standards are used by state insurance regulators to determine appropriate regulatory actions relating to insurers that show signs of weak or deteriorating conditions.

The RBC Model Act provides for four different levels of regulatory attention depending on the ratio of the Company’s total adjusted capital, defined as the total of its statutory capital and surplus to its RBC.

 

 

 

 

The “Company Action Level” is triggered if a company’s total adjusted capital is less than 200% but greater than or equal to 150% of its RBC. At the “Company Action Level,” a company must submit a comprehensive plan to the state insurance regulator that discusses proposed corrective actions to improve its capital position. A company whose total adjusted capital is between 250% and 200% of its RBC is subject to a trend test. A trend test calculates the greater of any decrease in the margin (i.e., the amount in dollars by which a company’s adjusted capital exceeds its RBC) between the current year and the prior year and between the current year and the average of the past three years, and assumes that the decrease could occur again in the coming year.

 

 

 

 

The “Regulatory Action Level” is triggered if a company’s total adjusted capital is less than 150% but greater than or equal to 100% of its RBC. At the “Regulatory Action Level,” the state insurance regulator will perform a special examination of the Company and issue an order specifying corrective actions that must be followed.

 

 

 

 

The “Authorized Control Level” is triggered if a company’s total adjusted capital is less than 100% but greater than or equal to 70% of its RBC, at which level the state insurance regulator may take any action it deems necessary, including placing the Company under regulatory control.

 

 

 

 

The “Mandatory Control Level” is triggered if a company’s total adjusted capital is less than 70% of its RBC, at which level the state insurance regulator is mandated to place the Company under its control.

At December 31, 2008, each of our insurance subsidiaries had total adjusted capital in excess of amounts requiring company or regulatory action at any prescribed RBC action level.

Statutory Accounting and Solvency Regulations

State regulation of insurance company financial transactions and financial condition are based on statutory accounting principles (SAP). SAP differs in a number of ways from GAAP, which governs the financial reporting of most other businesses. In general, SAP financial statements are more conservative than GAAP financial statements, reflecting lower asset balances, higher liability balances and lower equity.

State insurance regulators closely monitor the financial condition of insurance companies reflected in SAP financial statements and can impose significant financial and operating restrictions on an

34


insurance company that becomes financially impaired under SAP guidelines. State insurance regulators generally have the power to impose restrictions or conditions on the activities of a financially impaired insurance company, including: the transfer or disposition of assets; the withdrawal of funds from bank accounts; payment of dividends or other distributions; the extension of credit or the advancement of loans; and investments of funds, as well as business acquisitions or combinations.

NAIC is a group formed by state insurance regulators to discuss issues and formulate policy with respect to regulation, reporting and accounting of and by U.S. insurance companies. Although the NAIC has no legislative authority and insurance companies are at all times subject to the laws of their respective domiciliary states and, to a lesser extent, other states in which they conduct business, the NAIC is influential in determining the form in which such laws are enacted. Model Insurance Laws, Regulations and Guidelines (Model Laws) have been promulgated by the NAIC as a minimum standard by which state regulatory systems and regulations are measured. Adoption of state laws that provide for substantially similar regulations to those described in the Model Laws is a requirement for accreditation of state insurance regulatory agencies by the NAIC.

Insurance operations are also subject to various leverage tests, which are evaluated by regulators and private rating agencies. Our premium leverage ratios, also known as our premium-to-surplus ratios, as of December 31, 2008 and 2007 on a statutory combined basis, were 0.8:1 and 0.5:1, respectively, on a premiums written basis as compared to 0.7:1 for the workers’ compensation industry in 2007 as a whole.

Privacy Regulations

In 1999, the United States Congress enacted the Gramm-Leach-Bliley Act, which, among other things, protects consumers from the unauthorized dissemination of certain personal non-public financial information. Subsequently, a majority of states adopted additional regulations to address privacy issues. These laws and regulations apply to all financial institutions, including insurance and finance companies, and require us to maintain appropriate procedures for managing and protecting certain personal information of our customers and to fully disclose our privacy practices to our customers. A NAIC initiative that impacted the insurance industry in 2001 was the adoption in 2000 of the Privacy of Consumer Financial and Health Information Model Regulation, which assisted states in promulgating regulations to comply with the Gramm-Leach-Bliley Act. In 2002, to further facilitate the implementation of the Gramm-Leach- Bliley Act, the NAIC adopted the Standards for Safeguarding Customer Information Model Regulation. Our insurance subsidiaries have established policies and procedures to comply with the Gramm-Leach-Bliley-related privacy requirements.

Federal Legislative Changes

In response to the tightening of supply or unavailability of insurance and reinsurance following the September 11, 2001 terrorist attacks, the Terrorism Risk Insurance Act of 2002 (2002 Act), was enacted on November 26, 2002. The principal purpose of the 2002 Act was to create a role for the Federal government in the provision of insurance for losses sustained in connection with foreign terrorism. Prior to the 2002 Act, insurance (except for workers’ compensation insurance) and reinsurance for losses arising out of acts of terrorism were largely unavailable from private insurance and reinsurance companies.

In December 2007, the Terrorism Risk Act was extended by the Terrorism Risk Insurance Program Reauthorization Act of 2007 (TRIPRA). While the underlying structure of the 2002 Act was left intact, the 2007 extension included some adjustments. The workers’ compensation laws of the various states generally do not permit the exclusion of coverage for losses arising from terrorism or nuclear, biological and chemical attacks. In addition, we are not able to limit our losses arising from any one catastrophe or any one claimant. Our reinsurance policies exclude coverage for losses arising out of nuclear, biological, chemical or radiological attacks. Under TRIPRA, federal protection is currently provided to the insurance industry for events, including acts of foreign and domestic terrorism, that result in an industry loss of at least $100 million. In the event of a qualifying industry loss (which must occur out of an act of terrorism certified as such by the Secretary of the Treasury), each insurance company is responsible for a deductible of 20% of direct earned premiums in the previous year, with the federal government responsible to reimburse each company for 85% of the insurer’s loss in excess of the insurer’s proportionate share of the $100 billion industry aggregate limit in any one year. Accordingly,

35


events may not be covered by, or may result in losses exceeding the capacity of our reinsurance protection and any protection offered by the TRIPRA or any subsequent legislation.

We do not believe that the risk of loss to our insurance subsidiaries from acts of terrorism is significant. Small businesses constitute a large portion of our policies, and we do not intend to write large concentrations of business in any particular market location. However, the impact of any future terrorist acts is unpredictable, and the ultimate impact on our insurance subsidiaries, if any, of losses from any future terrorist acts will depend upon their nature, extent, location and timing.

Employees

In January 2009, we began implementation of a strategic restructuring plan that includes staff reductions of approximately 150 employees, or 14% of our total workforce. These reductions began in January and are anticipated to be largely completed by mid-year 2009. Those employees impacted are eligible for severance benefits and outplacement support.

As of February 13, 2009, we had 1,040 full-time employees, six of whom were executive officers. None of our employees are covered by a collective bargaining agreement. We believe our relations with our employees are excellent.

Website Information

Our corporate website is located at www.employers.com, Our annual report on Form 10-K, current reports on Form 8-K and amendments to those reports that we file or furnish pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 are available through our website, free of charge, as soon as reasonably practicable after they are electronically filed or furnished to the Securities and Exchange Commission (SEC). Our website also provides access to reports filed by our Directors, executive officers and certain significant shareholders pursuant to Section 16 of the Securities Exchange Act of 1934. In addition, our Corporate Governance Guidelines, Code of Business Conduct and Ethics, our Code of Ethics for Senior Financial Officers and charters for the standing committees of our Board of Directors are available on our website. The information on our website is not incorporated by reference into this report. The Company will provide, free of charge, a copy of the documents upon request to Investor Relations, 10375 Professional Circle, Reno, Nevada 89521-4802. In addition, the SEC maintains a website, www.sec.gov, that contains reports, proxy and information statements and other information that we file electronically with the SEC.

Executive Officers of the Registrant

The following provides information regarding our senior executive officers and key employees as of February 13, 2009. No family relationships exist among our executive officers.

 

 

 

 

 

Name

 

Age(1)

 

Position

Douglas D. Dirks

 

50

 

President and Chief Executive Officer of Employers Holdings, Inc.

William E. Yocke

 

58

 

Executive Vice President and Chief Financial Officer of Employers Holdings, Inc.

Martin J. Welch

 

53

 

President and Chief Operating Officer of EICN, ECIC, EPIC and EAC

Lenard T. Ormsby

 

56

 

Executive Vice President, Chief Legal Officer, General Counsel and Corporate Secretary of Employers Holdings, Inc.

Ann W. Nelson

 

47

 

Executive Vice President, Corporate and Public Affairs of Employers Holdings, Inc.

John P. Nelson

 

46

 

Executive Vice President and Chief Administrative Officer of Employers Holdings, Inc.


 

 

(1)

 

 

 

At December 31, 2008.

36


Executive Officers

Douglas D. Dirks. Mr. Dirks has served as President and Chief Executive Officer of Employers Holdings, Inc., EGI and their predecessors since their creation in April 2005. He has served as Chief Executive Officer of EICN and ECIC since January 2006 and Chief Executive Officer of EPIC, EAC, EIG Services, Inc., Pinnacle Benefits, Inc. and AmSERV, Inc. since November 2008. He served as President and Chief Executive Officer of EICN from January 2000 until January 2006, and served as President and Chief Executive Officer of ECIC from May 2002 until January 2006. Mr. Dirks has served as President and Chief Executive Officer of EOH and Elite since 2002. He has been Director of Employers Holdings, Inc., EGI and their predecessors since April 2005; a Director of EICN since December 1999; EOH since 2000; EIS since August 1999; ECIC since May 2002; and a Director of EPIC, EAC, EIG Services, Inc. and AmSERV, Inc. since November 2008. Mr. Dirks was the Chief Executive Officer of the Fund from 1995 to 1999 and its Chief Financial Officer from 1993 to 1995. Prior to joining the Fund, he served in senior insurance regulatory positions and as an advisor to the Nevada Governor’s Office. He presently serves on the Board of Directors of the Nevada Insurance Guaranty Association and the Nevada Insurance Education Foundation.

William E. Yocke. Mr. Yocke has served as Executive Vice President and Chief Financial Officer of Employers Holdings, Inc. since February 2007. He has served as Executive Vice President and Chief Financial Officer for EICN and ECIC from June 2005 to February 2007. He has been Treasurer of EPIC, EAC, and the Treasurer and Chief Financial Officer for EIG Services, Inc., Pinnacle Benefits, Inc. and AmSERV, Inc. since October 31, 2008. He has also been Treasurer of Employers Holdings, Inc., EGI and their predecessors and EICN, ECIC, EOH and EIS since 2005. Mr. Yocke is a Director of EPIC, EAC, EIG Services, Inc. and Pinnacle Benefits, Inc. since October 31, 2008. Mr. Yocke has been a Director of ECIC since November 2005 and EICN since April 2007. Prior to joining the Company, Mr. Yocke was Senior Vice President for the Willis Group, a London-based risk management and insurance intermediary, from 2004 to 2005. Previously, he served as Chief Financial Officer for AVRA Insurance Company from 2002 to 2004, Director of Deloitte & Touche West Region Actuarial and Risk Management Consulting from 1996 to 2002, and Director of West Region Risk Management Consulting for Ernst & Young LLP from 1987 to 1996.

Martin J. Welch. Mr. Welch has served as a Director of Employers Holdings, Inc., EGI, and their predecessors, and EICN and ECIC since March 2006. Since October 2008, Mr. Welch has served as a Director of EPIC, EAC, EIG Services, Inc. and Pinnacle Benefits, Inc. He has also served as President and Chief Operating Officer of EICN and ECIC since January 2006 and was Senior Vice President and Chief Underwriting Officer of EICN and ECIC from September 2004 to January 2006. Since October 2008, Mr. Welch has served as President and Chief Operating Officer of EPIC and EAC. He is President of EIG Services, Inc., Pinnacle Benefits, Inc. and AmSERV, Inc. Mr. Welch has more than 25 years of experience in workers’ compensation and commercial property/casualty insurance. Prior to joining the Company, he served as Senior Vice President, National Broker Division, for Wausau Insurance Companies from January 2003 to February 2004.

Lenard T. Ormsby. Mr. Ormsby has served as Executive Vice President, General Counsel, Chief Legal Officer and Secretary of Employers Holdings, Inc. since February 2007. He was appointed Corporate Secretary to EIG in April 2005, General Counsel in October 2006 and Chief Legal Officer in November 2006. He previously served as Executive Vice President and General Counsel of EICN and ECIC from June 2002 to November 2006. He has served as Secretary or Assistant Secretary of EICN, ECIC, EOH and EIS since 2002, EGI since April 2005, and as Assistant Secretary of EPIC, EAC, Pinnacle Benefits, Inc., EIG Services, Inc. and AmSERV (and their predecessors) since November 2008. Mr. Ormsby has been a Director of ECIC since June 2004, EICN since April 2007, and EPIC, EAC, Pinnacle Benefits, Inc., EIG Services, Inc. and AmSERV (and their predecessors) since November 2008. He was Chief Operating Officer of the Fund and EICN from 1999 to June 2002 and General Counsel of the Fund from 1995 to 1999. Before joining the Fund, Mr. Ormsby was a partner in the Nevada law firm of McDonald, Carano, Wilson, McCune, Bergin, Frankovich & Hicks.

Ann W. Nelson. Ms. Nelson has served as Executive Vice President, Corporate and Public Affairs, of Employers Holdings, Inc. since February 2007. She has served as Executive Vice President, Corporate and Public Affairs, of EICN and ECIC since January 2006. Ms. Nelson served EICN as

37


Associate General Counsel from January through December 1999, as General Counsel from December 1999 through July 2002, Executive Vice President of Government Affairs from July 2002 through July 2004, and Executive Vice President of Strategy and Corporate Affairs from July 2004 through December 2005. Ms. Nelson’s governmental experience includes service as Legal Counsel to Nevada Governor Bob Miller from 1994 to 1999, and as a Deputy District Attorney in the Civil Division of the Washoe County District Attorney’s Office in Reno, Nevada from 1993 through 1994.

John P. Nelson. Mr. Nelson has been Executive Vice President and Chief Administrative Officer of Employers Holdings, Inc. since June 2008. He has been Senior Vice President and Chief Administrative Officer of Employers Holdings, Inc. since February 2007 and Senior Vice President and Chief Administrative Officer of EICN and ECIC since July 2004. Prior to joining the Company, he was Vice President, Human Resources & Administration for Fielding Graduate University in Santa Barbara, California from October 1993 to June 2004. Mr. Nelson has 24 years of experience in the field of Human Resources.

Key Employees

 

 

 

Name

 

Position

Paul I. Ayoub

 

Senior Vice President and Chief Information Officer

Stephen V. Festa

 

Senior Vice President and Chief Claims Officer

Jeff J. Gans

 

Senior Vice President and Chief Underwriting Officer

T. Hale Johnston

 

Senior Vice President and Regional Manager of the Pacific Region

Cynthia M. Morrison

 

Senior Vice President, Corporate Controller and Chief Accountant

M. Frank Pinson III

 

Senior Vice President and Regional Manager of the Midwest Region

David M. Quezada

 

Senior Vice President and General Manager of Strategic Partnerships and Alliances

Timothy J. Spear

 

Senior Vice President and Regional Manager of the Southeast Region

George Tway

 

Senior Vice President and Regional Manager of the Western Region

38


Item 1A. Risk Factors

Investing in our common stock involves risks. In evaluating our company, you should carefully consider the risks described below, together with all the information included in this annual report. The risks facing our company include, but are not limited to, those described below. The occurrence of one or more of these events could significantly and adversely affect our business, prospects, financial condition, results of operations, cash flows and stock price and you could lose all or part of your investment.

Risks Related to Our Business

Our liability for losses and LAE is based on estimates and may be inadequate to cover our actual losses and expenses.

We must establish and maintain reserves for our estimated losses and LAE. We establish loss reserves in our financial statements that represent an estimate of amounts needed to pay and administer claims with respect to insured claims that have occurred, including claims that have occurred but have not yet been reported to us. Loss reserves are estimates of the ultimate cost of individual claims based on actuarial estimation techniques, are inherently uncertain, and do not represent an exact measure of liability.

Several factors contribute to the uncertainty in establishing estimated losses, including the length of time to settle long-term, severe cases, claim cost inflation (deflation) trends and uncertainties in the long-term outcome of the 2003 and 2004 legislative reforms in California and the 2003 legislative reforms in Florida. Judgment is required in applying actuarial techniques to determine the relevance of historical payment and claim settlement patterns under current facts and circumstances. In states other than Nevada, we have a relatively short operating history and must rely on a combination of industry experience and our specific experience to establish our best estimate of losses and LAE reserves. The interpretation of historical data can be impacted by external forces, principally legislative changes, medical cost inflation, economic fluctuations and legal trends. We review our loss reserves each quarter. We may adjust our reserves based on the results of these reviews and these adjustments could be significant. Any changes in these estimates are reflected in our results of operations during the period in which they are made.

Loss reserves are estimates at a given point in time of our ultimate liability for cost of claims and of the cost of managing those claims, and are inherently uncertain. It is likely that the ultimate liability will differ from our estimates, perhaps significantly. Such estimates are not precise in that, among other things, they are based on predictions of future claim emergence and payment patterns and estimates of future trends in claim frequency and claim cost. These estimates assume that the claim emergence and payment patterns, claim inflation and claim frequency trend assumptions implicitly built into estimates will continue into the future. Unexpected changes in claim cost inflation can occur through changes in general inflationary trends, changes in medical technology and procedures, changes in wage levels and general economic conditions and changes in legal theories of compensability of injured workers and their dependents. Furthermore, future costs can be influenced by changes in the workers’ compensation statutory benefit structure and in benefit administration and delivery. It often becomes necessary to refine and adjust the estimates of liability on a claim either upward or downward. Even after such adjustments, ultimate liability may exceed or be less than the revised estimates.

Workers’ compensation benefits are often paid over a long period of time. In addition, there are no policy limits on our liability for workers’ compensation claims as there are for other forms of insurance. Therefore, estimating reserves for workers’ compensation claims may be more uncertain than estimating reserves for other lines of insurance with shorter or more definite periods between occurrence of the claim and final determination of the ultimate loss and with policy limits on liability for claim amounts. Accordingly, our reserves may prove to be inadequate to cover our actual losses.

Our estimates of incurred losses and LAE attributable to insured events of prior years have decreased for past accident years because actual losses and LAE paid and current projections of unpaid losses and LAE were less than we originally anticipated. We refer to such decreases as favorable developments. The reductions in reserves were $71.7 million, $60.0 million, $107.1 million, $78.1 million

39


and $37.6 million for the years ended December 31, 2008, 2007, 2006, 2005 and 2004, respectively. Estimates of net incurred losses and LAE are established by management utilizing actuarial indications based upon our historical and industry experience regarding claim emergence and claim payment patterns, and regarding medical cost inflation and claim cost trends, adjusted for future anticipated changes in claims-related and economic trends, as well as regulatory and legislative changes, to establish our best estimate of the losses and LAE reserves. The decrease in the prior year reserves was primarily the result of actual paid losses being less than expected, and revised assumptions used in projection of future losses and LAE payments based on more current information about the impact of certain changes, such as legislative changes, which was not available at the time the reserves were originally established. While we have had favorable developments over the past five years, the magnitude of these developments illustrates the inherent uncertainty in our liability for losses and LAE, and we believe that favorable or unfavorable developments of similar magnitude could occur in the future.

State insurance regulations in states where we operate have caused and may continue to cause downward pressure on the premiums we charge.

Our pricing decisions need to take into account the workers’ compensation insurance regulatory regime of each state in which we operate, such as regimes that address the rates that industry participants in that state may or should charge for policies. In 2008, 69.4% of our direct premiums written were generated in California. Accordingly, we are particularly affected by regulation in California and to a lesser extent in Florida and Nevada, our next largest markets.

The passage of any form of rate regulation in California could impair our ability to operate profitably in California, and any such impairment could have a material adverse effect on our financial condition and results of operations. California has recently been through a cycle of substantial rate decreases. Since 2002, three key pieces of workers’ compensation regulation reform have been enacted which reformed medical determinations of injuries or illness, established medical fee schedules, allowed for the use of medical provider panels, modified benefit levels, changed the proof needed to file claims, and reformed many additional areas of the workers’ compensation benefits and delivery system. Workers’ compensation insurers in California responded to these reforms by reducing their rates. For example, our rates in California have been reduced by 62.5% from September 2003 through December 31, 2008. These reductions in rates were in response to the legislative reforms of 2003 and 2004.

Although the California Commissioner does not set premium rates, he does adopt and publish advisory pure premium rates, which are rates that would cover expected losses but do not contain an element to cover operating expenses or profit. In November 2007, the California Commissioner recommended no overall change in pure premium rates for policies written on or after January 1, 2008. This was the first recommendation of no rate decrease by the California Commissioner since the reforms of 2003 and 2004. In October 2008, in response to a recommendation by the WCIRB to increase advisory rates by 16.0%, the California Commissioner approved a 5.0% average increase in advisory pure premium rates on new and renewal policies beginning January 1, 2009.

In “administered pricing” states, insurance rates are set by the state insurance regulators and are adjusted periodically. Rate competition is generally not permitted in these states. Of the states in which we currently operate, Florida, Wisconsin and Idaho have implemented such regulations. However, we are exposed to the risk that other states in which we operate will adopt administered pricing regulations.

In 2003, Florida enacted workers’ compensation reforms. As the impact from those reforms continue to be shown, the Florida Commissioner approved an 18.4% rate decrease for all new and renewal policies effective January 1, 2008, and an 18.6% rate decrease for all new and renewal policies effective January 1, 2009, which resulted in a cumulative effective rate decrease of 60.5% since 2003. On February 10, 2009, the Florida Commissioner approved a 6.4% increase in workers’ compensation rates to be effective April 1, 2009, for new and renewal business. This rate increase was the result of the impact of an October 2008 Florida Supreme Court decision that materially impacted the statutory caps on attorney fees that were part of the 2003 reforms.

Nevada has recently seen downward pressure on premiums. In December 2007, the Nevada Commissioner announced that the NCCI submitted a filing for an average voluntary loss cost decrease of 10.5% for new and renewal policies incepting on or after March 1, 2008, which was subsequently

40


approved by the Nevada Commissioner. According to the Nevada Commissioner, decreasing claim frequency was cited as the primary driver of the decrease, which more than offsets increasing indemnity and medical costs per claim, the cost of living benefit adjustments that were enacted during the 2003 Legislative session and the impact of Nevada’s statutory payroll cap.

In February 2009, the Nevada Commissioner announced the approval of a filing submitted by the NCCI for an average loss cost decrease of 4.9% for new and renewal policies incepting on or after March 1, 2009.

Due to the existence of rate regulation, and the possibility of adverse changes in such regulations, we cannot assure you that our premium rates will ultimately be adequate to cover the claim payments, losses and LAE and company overhead or, in the case of states without administered pricing, that our competitors will not set their premium rates at lower rates. In such event, we may be unable to compete effectively and our business, financial condition and results of operations could be materially adversely affected.

If we fail to price our insurance policies appropriately, our business competitiveness, financial condition or results of operations could be materially adversely affected.

Premiums are based on the particular class of business and our estimates of expected losses and LAE and other expenses related to the policies we underwrite. We analyze many factors when pricing a policy, including the policyholder’s prior loss history and industry classification. Inaccurate information regarding a policyholder’s past claims experience puts us at risk for mispricing our policies. For example, when initiating coverage on a policyholder, we must rely on the information provided by the policyholder or the policyholder’s previous insurer(s) to properly estimate future claims expense. If the claims information is not accurately stated, we may under price our policies by using claims estimates that are too low. As a result, our business, financial condition and results of operations could be materially adversely affected. In order to set premium rates accurately, we must utilize an appropriate pricing model which correctly assesses risks based on their individual characteristics and takes into account actual and projected industry characteristics.

Adverse economic conditions, such as those that currently exist in the financial and credit markets, could have a material adverse impact on our financial condition and results of operations.

Adverse economic conditions can significantly and adversely affect our business and profitability by:

 

 

 

 

leading to workforce reductions by our insureds, which would reduce payrolls upon which our premium is based;

 

 

 

 

requiring us to compete more vigorously on price to retain or attract business; and

 

 

 

 

weakening the ability of our customers to pay us on time, or at all.

Our concentrations in California, Florida and Nevada ties our performance to the business, economic, demographic and regulatory conditions in these states. Any deterioration in the conditions in these states could materially adversely affect our financial condition and results of operations.

Our business has concentrations in California, Florida and Nevada, where we generated 69.4%, 1.4% and 11.6% of our direct premiums written for the year ended December 31, 2008, respectively. Accordingly, unfavorable business, economic, demographic, competitive or regulatory conditions in these states could negatively impact our business.

The California, Florida and Nevada economies have been greatly impacted by the overall economic downturn, tightening of the credit markets and the resulting impacts on the residential real estate markets. In 2008, these states led the nation in foreclosure rates. Approximately nine percent of our business is construction related and, due to the economic slowdown, payrolls of some of our insureds have decreased. In addition, many California, Florida and Nevada businesses are dependent on tourism revenues, which are, in turn, dependent on a robust economy. The downturn in the national economy and the economies of these states, or any other event that causes deterioration in tourism in these states, could adversely impact small businesses such as restaurants that we have targeted as customers. The departure or insolvency of a significant number of small businesses from any of these states could also have a material adverse effect on our financial condition or results of operations.

41


We may be exposed to greater risks than those faced by insurance companies whose business is less concentrated. For example, our average premium per policy in California as of December 31, 2008 has declined by approximately 20.9% since the same time in 2007, principally as a result of rate changes, see “—State insurance regulations in states where we operate have caused and may continue to cause downward pressure on the premiums we charge.” We cannot assure you that there will not be deteriorating conditions in the states in which we have concentrations of business that could materially adversely affect our financial condition and results of operations.

Acts of terrorism and catastrophes could expose us to potentially substantial losses and, accordingly, could materially adversely impact our financial condition and results of operations.

Under our workers’ compensation policies and applicable laws in the states in which we operate, we are required to provide workers’ compensation benefits for losses arising from acts of terrorism. The impact of any terrorist act is unpredictable, and the ultimate impact on us would depend upon the nature, extent, location and timing of such an act. We would be particularly adversely affected by a terrorist act, most notably, a terrorist act affecting any metropolitan area where our policyholders have a large concentration of workers.

Notwithstanding the protection provided by the reinsurance we have purchased and any protection provided by the Terrorism Risk Insurance Act of 2002, or its extension, the Terrorism Risk Insurance Program Reauthorization Act of 2007 (TRIPRA), the risk of severe losses to us from acts of terrorism has not been eliminated because our excess of loss reinsurance treaty program contains various sub-limits and exclusions limiting our reinsurers’ obligation to cover losses caused by acts of terrorism. Excess of loss reinsurance is a form of reinsurance where the reinsurer pays all or a specified percentage of loss caused by a particular occurrence or event in excess of a fixed amount, up to a stipulated limit. Our excess of loss reinsurance treaties do not protect against nuclear, biological, chemical or radiological events. If such an event were to impact one or more of the businesses we insure, we would be entirely responsible for any workers’ compensation claims arising out of such event, subject to the terms of the Terrorism Risk Act, which has been extended by the TRIPRA as modified in 2007, and could suffer substantial losses as a result.

Under the TRIPRA, federal protection is currently provided to the insurance industry for events, including acts of foreign and domestic terrorism, that result in an industry loss of at least $100 million. In the event of qualifying industry loss (which must occur out of an act of terrorism certified as such by the Secretary of the Treasury), each insurance company is responsible for a deductible of 20% of direct earned premiums in the previous year, with the federal government responsible for reimbursing each company for 85% of the insurer’s loss in excess of the insurer’s loss, up to the insurer’s proportionate share of the $100 billion industry aggregate limit in any one year. Accordingly, events may not be covered by, or may result in losses exceeding the capacity of, our reinsurance protection and any protection offered by the TRIPRA or any subsequent legislation. Thus, any acts of terrorism could expose us to potentially substantial losses and, accordingly, could materially adversely affect our financial condition and results of operations.

Our operations also expose us to claims arising out of catastrophes because we may be required to pay benefits to workers who are injured in the workplace as a result of a catastrophe. Catastrophes can be caused by various unpredictable events, either natural or man-made. To date, we have not experienced catastrophic losses arising from any of these types of events. Any catastrophe occurring in the states in which we operate could expose us to potentially substantial losses and, accordingly, could have a material adverse effect on our financial condition and results of operations.

The fact that we write only a single line of insurance may leave us at a competitive disadvantage, and subjects our financial condition and results of operations to the cyclical nature of the workers’ compensation insurance market.

We face a competitive disadvantage due to the fact that we only offer a single line of insurance. Some of our competitors have additional competitive leverage because of the wide array of insurance products that they offer. For example, a business may find it more efficient or less expensive to purchase multiple lines of commercial insurance coverage from a single carrier. Because we do not offer a range of insurance products and sell only workers’ compensation insurance, we may lose potential customers to larger competitors who do offer a selection of insurance products.

42


The property and casualty insurance industry is cyclical in nature, and is characterized by periods of so-called “soft” market conditions in which premium rates are stable or falling, insurance is readily available and insurers’ profits decline, and by periods of so-called “hard” market conditions, in which rates rise, coverage may be more difficult to find and insurers’ profits increase. According to the Insurance Information Institute, since 1970, the property and casualty insurance industry experienced hard market conditions from 1975 to 1978, 1984 to 1987 and 2001 to 2004. Although the financial performance of an individual insurance company is dependent on its own specific business characteristics, the profitability of most workers’ compensation insurance companies generally tends to follow this cyclical market pattern. Because we only offer workers’ compensation insurance, our financial condition and operations are subject to this cyclical pattern, and we have no ability to change emphasis to another line of insurance. For example, during a period when there is excess underwriting capacity in the workers’ compensation market and, therefore, lower profitability, we are unable to shift our focus to another line of insurance which is at a different stage of the insurance cycle and, thus, our financial condition and results of operations may be materially adversely affected. We believe the workers’ compensation industry is currently experiencing increased price competition and excess underwriting capacity. This results in lower rate levels and smaller profit margins.

Because of cyclicality in the workers’ compensation market, due in large part to competition, capacity and general economic factors, we cannot predict the timing or duration of changes in the market cycle. We have experienced significant increased price competition in our target markets since 2003. This cyclical pattern has in the past and could in the future adversely affect our financial condition and results of operations.

If our agreements with our principal strategic partners are terminated or we fail to maintain good relationships with them, our revenues may decline materially and our results of operations may be materially adversely affected. We are also subject to credit risk with respect to our strategic partners.

We have agreements with two principal strategic partners, ADP and Wellpoint, to market and service our insurance products through their sales forces and insurance agencies. For the year ended December 31, 2008, we generated $35.0 million of base direct premiums written through ADP and $48.0 million of base direct premiums written through Wellpoint. The base direct premiums written for ADP and Wellpoint were 10.8% and 14.9% of total base direct premiums written during 2008, respectively. Our agreement with ADP is not exclusive, and ADP may terminate the agreement without cause upon 120 days notice. Although our distribution agreements with Wellpoint are exclusive, Wellpoint may terminate its agreements with us if the rating of ECIC is downgraded and we are not able to provide coverage through a carrier with an A.M. Best financial strength rating of “B++” or better. Wellpoint may also terminate its agreements with us without cause upon 60 days’ notice. The termination of any of these agreements, our failure to maintain good relationships with our principal strategic partners or their failure to successfully market our products may materially reduce our revenues and have a material adverse effect on our results of operations if we are unable to replace the principal strategic partners with other distributors that produce comparable premiums. In addition, we are subject to the risk that our principal strategic partners may face financial difficulties, reputational issues or problems with respect to their own products and services, which may lead to decreased sales of our products and services. Moreover, if either of our principal strategic partners consolidates or aligns itself with another company or changes its products that are currently offered with our workers’ compensation insurance product, we may lose business or suffer decreased revenues.

We are also subject to credit risk with respect to ADP and Wellpoint, as they collect premiums that are due to us for the workers’ compensation products that are marketed together with their own products. ADP and Wellpoint are obligated on a monthly basis to pass on premiums that they collect on our behalf. Any failure to remit such premiums to us or to remit such amounts on a timely basis could have an adverse effect on our results of operations.

If we do not maintain good relationships with independent insurance agents and brokers, they may sell our competitors’ products rather than ours, and our revenues or profitability may decline.

We market and sell our insurance products primarily through independent, non-exclusive insurance agents and brokers. These agents and brokers are not obligated to promote our products and can and do sell our competitors’ products. We must offer workers’ compensation insurance products and

43


services that meet the requirements of these agents and their customers. We must also provide competitive commissions to these agents and brokers. Our business model depends upon an extensive network of local and regional agents and brokers distributed throughout the states in which we do business. We need to maintain good relationships with the agents and brokers with which we contract to sell our products. If we do not, these agents and brokers may sell our competitors’ products instead of ours or may direct less desirable risks to us, and our revenues or profitability may decline. In addition, these agents and brokers may find it easier to promote the broader range of programs of some of our competitors than to promote our single-line workers’ compensation insurance products. The loss of a number of our independent agents and brokers or the failure of these agents to successfully market our products may reduce our revenues and our profitability if we are unable to replace them with agents and brokers that produce comparable premiums.

A downgrade in our financial strength rating could reduce the amount of business we are able to write or result in the termination of our agreements with our strategic partners.

Rating agencies rate insurance companies based on financial strength as an indication of an ability to pay claims. Our insurance subsidiaries are currently assigned a group letter rating of “A-” (Excellent) from A.M. Best, which is the rating agency that we believe has the most influence on our business. This rating is assigned to companies that, in the opinion of A.M. Best, have demonstrated an excellent overall performance when compared to industry standards. A.M. Best considers “A-” rated companies to have an excellent ability to meet their ongoing obligations to policyholders. This rating does not refer to our ability to meet non-insurance obligations and is not a recommendation to purchase or discontinue any policy or contract issued by us or to buy, hold or sell our securities.

The financial strength ratings of A.M. Best and other rating agencies are subject to periodic review using, among other things, proprietary capital adequacy models, and are subject to revision or withdrawal at any time. Insurance financial strength ratings are directed toward the concerns of policyholders and insurance agents and are not intended for the protection of investors or as a recommendation to buy, hold or sell securities. Our competitive position relative to other companies is determined in part by our financial strength rating. Any downgrade in the financial strength rating of our insurance subsidiaries could adversely affect our business through the loss of existing and potential policyholders and the loss of relationships with independent agents and brokers or strategic partners.

Our strategic partner, Wellpoint, requires that we offer workers compensation coverage through a carrier rated “B++” or better by A.M. Best. We currently offer this coverage through our subsidiary, ECIC. Our inability to offer such coverage could cause a reduction in the number of policies we write, would adversely impact our relationships with our strategic partners and could have a material adverse effect on our results of operations and our financial position. If ECIC’s rating were downgraded, and we were not able to enter into an agreement to provide coverage through a carrier rated “B++” or better by A.M. Best, Wellpoint could terminate its distribution agreements with us. We cannot assure you that we would be able to enter such an agreement if our rating were downgraded.

If we are unable to obtain reinsurance on favorable terms, our ability to write new policies and to renew existing policies could be adversely affected and our financial condition and results of operations could be materially adversely affected.

Like other insurers, we manage our risk by buying reinsurance. Reinsurance is an arrangement in which an insurance company, called the ceding company, transfers a portion of insurance risk under policies it has written to another insurance company, called the reinsurer, and pays the reinsurer a portion of the premiums relating to those policies. Conversely, the reinsurer receives or assumes reinsurance from the ceding company. We currently purchase excess of loss reinsurance. We purchase reinsurance to cover larger individual losses and aggregate catastrophic losses from natural perils and acts of terrorism, excluding nuclear, biological, chemical and radiological events.

On July 1, 2008, we entered into a new reinsurance program that is effective through July 1, 2009. The reinsurance program consists of three agreements, one excess of loss agreement and two catastrophic loss agreements. The program provides coverage up to $200.0 million per loss occurrence, subject to certain exclusions. Our loss retention for the program year beginning July 1, 2008, is $5.0 million. The coverage is subject to an aggregate loss cession limitation in the first layer ($5.0 million in excess of our $5.0 million retention) of $20.0 million. Additionally, in the second through fifth layers of

44


our reinsurance program, our ultimate net loss shall not exceed $10 million for any one life, and we are permitted one reinstatement for each layer upon the payment of additional premium. Covered losses which occur prior to expiration or cancellation of the reinsurance program continue to be obligations of the reinsurer and subject to the other conditions in the agreement. We are responsible for these losses if the reinsurer cannot or refuses to pay, see “Item 1—Business—Reinsurance.”

The availability, amount and cost of reinsurance are all subject to market conditions and to our loss experience. We cannot be certain that our reinsurance agreements will be renewed or replaced prior to their expiration upon terms satisfactory to us. If we are unable to renew or replace our reinsurance agreements upon terms satisfactory to us, our net liability on individual risks would increase and we would have greater exposure to catastrophic losses. If this were to occur, our underwriting results would be subject to greater variability and our underwriting capacity would be reduced. As a result, these consequences could have a material adverse affect on our financial condition and results of operations.

We are subject to credit risk with respect to our reinsurers, and they may also refuse to pay or may delay payment of losses we cede to them.

Although we purchase reinsurance to manage our risk and exposure to losses, we continue to have direct obligations under the policies we write. We remain liable to our policyholders, even if we are unable to recover from our reinsurers what we believe we are entitled to receive under our reinsurance contracts. Reinsurers might refuse or fail to pay losses that we cede to them, or they might delay payment. Recently, liquidity and the availability of capital have been restricted as a result of adverse credit market conditions and concerns about the economy. Reinsurers may not have enough liquidity to make timely payments. Disruptions, uncertainty or volatility in the financial markets may limit reinsurers’ access to capital required to operate their businesses and in turn affect payments to us. Losses may not be recovered from our reinsurers until claims are paid, and in the case of long-term workers’ compensation cases, the creditworthiness of our reinsurers may change before we recover the amounts to which we are entitled. We obtained quota share reinsurance covering the losses incurred prior to July 1, 1995, and we could be liable for all of those losses if the coverage provided by the LPT Agreement proves inadequate or we fail to collect from the reinsurers party to such transaction. At December 31, 2008, we had $1.1 billion of reinsurance recoverables for paid and unpaid losses and LAE of which only $12.7 million is currently due to us. With the exception of certain losses assumed from the Fund discussed below, these recoverables are unsecured. If we are unable to collect on our reinsurance recoverables, our financial condition and results of operations could be materially affected.

Our assumption of the assets, liabilities and operations of the Fund covered all losses incurred by the Fund prior to January 1, 2000, pursuant to legislation passed in the 1999 Nevada legislature. We only obtained reinsurance covering the losses incurred prior to July 1, 1995, and we could be liable for all of those losses if the coverage provided by the LPT Agreement proves inadequate or we fail to collect from the reinsurers party to such transaction.

On January 1, 2000, our Nevada insurance subsidiary assumed all of the assets, liabilities and operations of the Fund, including losses incurred by the Fund prior to such date. Our Nevada insurance subsidiary also assumed the Fund’s rights and obligations associated with the LPT Agreement that the Fund entered into with third party reinsurers with respect to its losses incurred prior to July 1, 1995. The LPT Agreement was a retroactive 100% quota share reinsurance agreement under which the Fund initially ceded $1.525 billion in liabilities for the incurred but unpaid losses and LAE related to claims incurred prior to July 1, 1995, for consideration of $775 million in cash. The LPT Agreement provides coverage for losses up to $2 billion, excluding losses for burial and transportation expenses. Accordingly, to the extent that the Fund’s outstanding losses for claims with original dates of injury prior to Ju1y 1, 1995 exceed $2 billion, they will not be covered by the LPT Agreement and we will be liable for those losses to that extent. Paid losses under the LPT Agreement totaled $447.9 million through December 31, 2008. As of December 31, 2008, the estimated remaining liabilities subject to the LPT Agreement were approximately $929.6 million.

The reinsurers under the LPT Agreement agreed to assume responsibilities for the claims at the benefit levels which existed in June 1999. Accordingly, if the Nevada legislature were to increase the benefits payable for the pre-July 1, 1995 claims, we would be responsible for the increased benefit costs to the extent of the legislative increase. Similarly, if the credit rating of any of the third party reinsurers

45


that are party to the LPT Agreement were to fall below “A-” as determined by A.M. Best or to become insolvent, we would be responsible for replacing any such reinsurer or would be liable for the claims that otherwise would have been transferred to such reinsurer. For example, in 2002, the rating of one of the original reinsurers under the LPT Agreement, Gerling dropped below the mandatory “A-” A.M. Best rating to “B+”. Accordingly, we entered into an agreement to replace Gerling with NICO at a cost to us of $32.8 million. We can give no assurance that circumstances requiring us to replace one or more of the current reinsurers under the LPT Agreement will not occur in the future, that we will be successful in replacing such reinsurer or reinsurers in such circumstances, or that the cost of such replacement or replacements will not have a material adverse effect on our results of operations or financial condition.

The LPT Agreement also required the reinsurers to each place assets supporting the payment of claims by them in individual trusts that require that collateral be held at a specified level. The collateralization level must not be less than the outstanding reserve for losses and a loss expense allowance equal to 7% of estimated paid losses discounted at a rate of 6%. If the assets held in trust fall below this threshold, we can require the reinsurers to contribute additional assets to maintain the required minimum level. The value of these assets at December 31, 2008 was approximately $998.4 million. If the value of the collateral in the trusts drops below the required minimum level and the reinsurers are unable to contribute additional assets, we could be responsible for substituting a new reinsurer or paying those claims without the benefit of reinsurance. One of the reinsurers has collateralized its obligations under the LPT Agreement by placing the stock of a publicly held corporation, with a value of $693.8 million at December 31, 2008, in a trust to secure the reinsurer’s obligation of $511.3 million. The value of this collateral is subject to fluctuations in the market price of such stock. The other reinsurers have placed treasury and fixed income securities in trusts to collateralize their obligations.

For losses incurred by the Fund subsequent to June 30, 1995, we are liable for the entire loss, net of reinsurance purchased by the Fund. If the premiums collected by the Fund for policies written between July 1, 1995 and December 31, 1999 and the investment income earned on those premiums are inadequate to cover these losses, our reserves may prove inadequate and our results of operations and financial condition could be materially adversely affected.

Intense competition could adversely affect our ability to sell policies at rates we deem adequate.

The market for workers’ compensation insurance products is highly competitive. Competition in our business is based on many factors, including premiums charged, services provided, financial ratings assigned by independent rating agencies, speed of claims payments, reputation, policyholder dividends, perceived financial strength and general experience. In some cases, our competitors offer lower priced products than we do. If our competitors offer more competitive premiums, dividends or payment plans, services or commissions to independent agents, brokers and other distributors, we could lose market share or have to reduce our premium rates, which could adversely affect our profitability. We compete with regional and national insurance companies, professional employer organizations, third-party administrators, self-insurance funds and state insurance funds. Our main competitors in each of the states in which we currently operate vary from state to state but are usually those companies that offer a full range of services in underwriting, loss control and claims. We compete on the basis of the services that we offer to our policyholders and on ease of doing business rather than solely on price. Our principal competitors include the California State Compensation Fund, AIG, Bershire Hathaway Insurance Group, Nevada Contractors Group, Zenith National Insurance Company and Liberty Mutual Insurance Companies.

Many of our competitors are significantly larger and possess greater financial, marketing and management resources than we do. Some of our competitors, including the California State Compensation Insurance Fund, benefit financially by not being subject to federal income tax. Intense competitive pressure on prices can result from the actions of even a single large competitor. Competitors with more surplus than us have the potential to expand in our markets more quickly than we can. Additionally, greater financial resources permit an insurer to gain market share through more competitive pricing, even if that pricing results in reduced underwriting margins or an underwriting loss. Many of our competitors are multi-line carriers that can price the workers’ compensation insurance that

46


they offer at a loss in order to obtain other lines of business at a profit. If we are unable to compete effectively, our business and financial condition could be materially adversely affected.

Adverse capital and credit market conditions could significantly and adversely affect the value of our investment portfolio, our profitability and financial condition.

The capital markets experienced extreme volatility, uncertainty and disruption throughout 2008. As an insurer, we have a substantial investment portfolio, comprised principally of debt securities. Government monetary policy can significantly and adversely affect the value of our investment portfolio, our profitability, and financial condition by:

 

 

 

 

significantly reducing the value of the debt securities we hold in our investment portfolio, creating net realized capital losses as other-than-temporary declines occur, resulting in reductions to net income or net unrealized capital losses that could reduce our stockholders’ equity;

 

 

 

 

reducing interest rates on high quality short-term debt securities, thereby materially reducing our net investment income; and

 

 

 

 

making valuation of certain investment securities difficult, potentially leading to significant period-to-period changes in our estimates of fair values, which could result in significant period-to-period volatility in our net income and stockholders’ equity.

If we are unable to realize our investment objectives, our financial condition and results of operations may be materially adversely affected.

Investment income is an important component of our revenue and net income. As of December 31, 2008, our investment portfolio, excluding cash and cash equivalents, had a fair value of $2.04 billion. For the year ended December 31, 2008, we had $78.1 million of net investment income. Our investment portfolio is managed by an independent asset manager that operates under investment guidelines approved by our Board of Directors. Although these guidelines stress diversification and capital preservation, our investments are subject to a variety of risks that are beyond our control, including risks related to general economic conditions, interest rate fluctuations and market volatility. Interest rates are highly sensitive to many factors, including governmental monetary policies and domestic and international economic and political conditions. For example, general economic conditions may be adversely affected by U.S. involvement in hostilities with other countries and large-scale acts of terrorism, or the threat of hostilities or terrorist acts. These and other factors affect the capital markets and, consequently, the value of our investment portfolio.

The outlook for our investment income is dependent on the future direction of interest rates, maturity schedules and cash flow from operations that is available for investment. The fair values of fixed maturity securities that are “available-for-sale” fluctuate with changes in interest rates and cause fluctuations in our stockholders’ equity. Any significant decline in our investment income as a result of falling interest rates, deterioration in the credit of companies in which we have invested, decreased dividend payments or general market conditions could have an adverse effect on our net income and, as a result, on our stockholders’ equity and policyholders’ surplus.

We rely on our information technology and telecommunication systems, and the failure of these systems could materially and adversely affect our business.

Our business is highly dependent upon the successful and uninterrupted functioning of our information technology and telecommunications systems. We rely on these systems to process new and renewal business, provide customer service, administer and make payments on claims, facilitate collections, and, to automatically underwrite and administer the policies we write. EACCESS®, our main underwriting and policy administration system, includes the base systems for underwriting evaluation, quoting, rating, policy issuance and servicing, and endorsements. This system, along with our other systems, enables us to perform actuarial and other modeling functions necessary for underwriting and rate development. The failure of any of our systems, including due to a natural catastrophe, or the termination of any third-party software licenses upon which any of these systems is based, could interrupt our operations or materially impact our ability to evaluate and write new business. As our information technology and telecommunications systems interface with and depend on third-party systems, we could experience service denials if demand for such services exceeds capacity or such third-party systems fail or experience interruptions. If sustained or repeated, a system failure or service denial

47


could result in a deterioration of our ability to write and process new and renewal business, provide customer service or compromise our ability to pay claims in a timely manner, which could have a material adverse effect on our business.

A breach of security with respect to our systems could also jeopardize the confidentiality of non-public data related to policyholders, claimants, vendors, or our employees, which could harm our reputation and expose us to possible liability. We rely on user authentication capabilities and use data encryption, but there can be no guarantee that advances in computer capabilities, new computer viruses, programming or human errors, or other events or developments would not result in a breach of our security measures, misappropriations of our proprietary information or an interruption of business operations.

The insurance business is subject to extensive regulation that limits the way we can operate our business.

We are subject to extensive regulation by the insurance regulatory agencies in each state in which our insurance subsidiaries are licensed, most significantly by the insurance regulators in the states of California, Florida and Nevada, in which our insurance subsidiaries are domiciled. These state agencies have broad regulatory powers designed primarily to protect policyholders and their employees, not stockholders or other investors. Regulations vary from state to state, but typically address or include:

 

 

 

 

standards of solvency, including risk-based capital measurements;

 

 

 

 

restrictions on the nature, quality and concentration of investments;

 

 

 

 

restrictions on the types of terms that we can include in the insurance policies we offer;

 

 

 

 

mandates that may affect wage replacement and medical care benefits paid under the workers’ compensation system;

 

 

 

 

requirements for the handling and reporting of claims;

 

 

 

 

procedures for adjusting claims, which can affect the cost of a claim;

 

 

 

 

restrictions on the way rates are developed and premiums are determined;

 

 

 

 

the manner in which agents may be appointed;

 

 

 

 

establishment of liabilities for unearned premiums, unpaid losses and LAE and other purposes;

 

 

 

 

limitations on our ability to transact business with affiliates;

 

 

 

 

mergers, acquisitions and divestitures involving our insurance subsidiaries;

 

 

 

 

licensing requirements and approvals that affect our ability to do business;

 

 

 

 

compliance with all applicable medical privacy laws;

 

 

 

 

potential assessments for the settlement of covered claims under insurance policies issued by impaired, insolvent or failed insurance companies; and

 

 

 

 

the amount of dividends that our insurance subsidiaries may pay to EGI and, in turn, the ability of EGI to pay dividends to EHI.

Workers’ compensation insurance is statutorily provided for in all of the states in which we do business. State laws and regulations provide for the form and content of policy coverage and the rights and benefits that are available to injured workers, their representatives and medical providers. Legislation and regulation also impact our ability to investigate fraud and other abuses of the workers’ compensation systems where we operate. Our relationships with medical providers are also impacted by legislation and regulation, including penalties for the failure to make timely payments.

Regulatory authorities have broad discretion to deny or revoke licenses for various reasons, including the violation of regulations. We may be unable to maintain all required approvals or comply fully with the wide variety of applicable laws and regulations, which are continually undergoing revision and which may be interpreted differently among the jurisdictions in which we conduct business, or to comply with the then current interpretation of such laws and regulations. In some instances, where there is uncertainty as to applicability, we follow practices based on our interpretations of regulations or practices that we believe generally to be followed by the industry. These practices may turn out to be

48


different from the interpretations of regulatory authorities. We are also subject to regulatory oversight of the timely payment of workers’ compensation insurance benefits in all the states where we operate. Regulatory authorities may impose monetary fines and penalties if we fail to pay benefits to injured workers and fees to our medical providers in accordance with applicable laws and regulations.

The NAIC has developed a system to test the adequacy of statutory capital, known as RBC, which has been adopted by all of the states in which we operate. This system establishes the minimum amount of capital and surplus calculated in accordance with statutory accounting principles necessary for an insurance company to support its overall business operations. It identifies insurers that may be inadequately capitalized by looking at the inherent risks of each insurer’s assets and liabilities and its mix of net premiums written. Insurers falling below a calculated threshold may be subject to varying degrees of regulatory action, including supervision, rehabilitation or liquidation. The need to maintain our risk-based capital levels may prevent us from expanding our business or meeting strategic goals in a timely manner. Failure to maintain our risk-based capital at the required levels could adversely affect the ability of our insurance subsidiaries to maintain regulatory authority to conduct our business, see “Item 1—Business—Regulation—IRIS Ratios.”

The federal government does not directly regulate the business of insurance; however, the current financial crisis has created some support for federal oversight. We cannot predict whether such federal oversight will be adopted, or what impact such oversight would have on our business, financial condition or results of operations.

The extensive regulation of our business may affect the cost or demand for our products and may limit our ability to obtain rate increases or to take other actions that we might pursue to increase our profitability. In addition, we may be unable to maintain all required approvals or comply fully with the wide variety of applicable laws and regulations, which are subject to amendment. Further, changes in the level of regulation of the insurance industry or changes in laws or regulations or interpretations by regulatory authorities could impact our operations, require us to bear additional costs of compliance and impact our profitability.

We are a holding company with no direct operations. We depend on the ability of our subsidiaries to transfer funds to us to meet our obligations, and our insurance subsidiaries’ ability to pay dividends to us is restricted by law.

EHI is a holding company that transacts substantially all of its business through operating subsidiaries. Its primary assets are the shares of stock of our operating subsidiaries. The ability of EHI to meet obligations on outstanding debt, to pay stockholder dividends and to make other payments depends on the surplus and earnings of our subsidiaries and their ability to pay dividends or to advance or repay funds, and upon the ability of our insurance subsidiaries, EICN and EPIC, to pay dividends to EGI and, in turn, the ability of EGI to pay dividends to EHI.

Payments of dividends by our insurance subsidiaries are restricted by state insurance laws, including laws establishing minimum solvency and liquidity thresholds, and could be subject to contractual restrictions in the future, including those imposed by indebtedness we may incur in the future, see “Item 1—Business—Regulation—Financial, Dividend and Investment Restrictions.” As a result, we may not be able to receive dividends from these subsidiaries and we may not receive dividends in the amounts necessary to meet our obligations or to pay dividends on our common stock.

Our profitability may be adversely impacted by inflation, legislative actions and judicial decisions.

The effects of inflation could cause claims costs to rise in the future. Our reserve for losses and LAE includes assumptions about future payments for settlement of claims and claims handling expenses, such as medical treatment and litigation costs. In addition, judicial decisions and legislative actions continue to broaden liability and policy definitions and to increase the severity of claims payments. To the extent inflation and these legislative actions and judicial decisions cause claims costs to increase above reserves established for these claims, we will be required to increase our loss reserves with a corresponding reduction in our net income in the period in which the deficiency is identified.

An example of the impact from a judicial decision occurred in October 2008 when the Florida Supreme Court ruled in the case Emma Murray vs. Mariner Health Inc. and Ace USA that attorneys who represent injured workers are entitled to “reasonable” fees. This decision materially impacted the

49


statutory caps on attorney fees that were part of the 2003 reforms. As a result of this decision, the NCCI recommended an increase in overall Florida workers compensation costs of 18.6%. However, the Florida Commissioner only approved a 6.4% rate increase effective April 1, 2009 for new and renewal business.

Administrative proceedings or legal actions involving our insurance subsidiaries could have a material adverse effect on our business, financial condition or results of operations.

Our insurance subsidiaries are involved in various administrative proceedings and legal actions in the normal course of their insurance operations. Our subsidiaries have responded to the actions and intend to defend against these claims. These claims concern issues including eligibility for workers’ compensation insurance coverage or benefits, the extent of injuries, wage determinations and disability ratings. Adverse decisions in multiple administrative proceedings or legal actions could require us to pay significant amounts in the aggregate or to change the manner in which we administer claims, which could have a material adverse effect on our financial condition and results of operations.

Our operations are dependent on obtaining adequate or additional capital on favorable terms, including from writing new business and establishing premium rates and reserve levels sufficient to cover losses. Continuing adverse financial market conditions could significantly affect our ability to meet liquidity needs, including our access to capital and our cost of capital, including capital that may be required by our subsidiaries.

Our ability to write new business successfully and to establish premium rates and reserves at levels sufficient to cover losses will generally determine our future capital requirements. If we have to raise additional capital, equity or debt, financing may not be available on terms that are favorable to us. In the case of equity financings, dilution to our stockholders could result. In any case, such securities may have rights, preferences and privileges that are senior to those of our shares of common stock. In the case of debt financings, we may be subject to covenants that restrict our ability to freely operate our business. If we cannot obtain adequate capital on favorable terms or at all, we may not have sufficient funds to implement our future growth or operating plans and our business, financial condition or results of operations could be materially adversely affected.

The capital and credit markets have recently been experiencing extreme volatility and disruption that have negatively impacted market liquidity conditions. Recently, this volatility and disruption has reached unprecedented levels. In some cases, the markets have produced downward pressure on stock prices and credit availability for certain issuers without regard to those issuers’ underlying financial strength. Continuing disruptions, uncertainty or volatility in the financial markets may limit our access to capital required to operate our business, replace maturing debt obligations or access the capital necessary to grow our business. As a result, we may be forced to delay raising capital or be unable to raise capital on favorable terms, or at all, which could decrease our profitability, significantly reduce our financial flexibility and cause rating agencies to reevaluate our financial strength ratings.

In the event current sources of liquidity, including internal sources, do not satisfy our needs, we may have to seek additional financing. The availability of additional financing will depend on a variety of factors such as general market conditions, the overall availability of credit to the financial services industry and our credit ratings and credit capacity. If our internal sources of liquidity prove to be insufficient, we may not be able to successfully obtain additional financing on favorable terms, or at all. If current levels of market disruption and volatility continue or worsen, the inability to access capital could have a material adverse affect on our financial condition and results of operations.

Our business is largely dependent on the efforts of our management because of its industry expertise, knowledge of our markets and relationships with the independent agents and brokers that sell our products. The loss of any members of our management team could disrupt our operations and have a material adverse affect on our ability to execute on our strategies.

Our success depends in substantial part upon our ability to attract and retain qualified executive officers, experienced underwriting personnel and other skilled employees who are knowledgeable about our business. The current success of our business is dependent in significant part on the efforts of Douglas D. Dirks, our president and chief executive officer, Martin J. Welch, the president and chief operating officer of our insurance subsidiaries, and William E. Yocke, our executive vice president and

50


chief financial officer. Many of our regional and local officers are also critical to our operations because of their industry expertise, knowledge of our markets and relationships with the independent agents and brokers who sell our products. We have entered into employment agreements with certain of our key executives. Currently, we do not maintain key man life insurance for our executives or senior management team. If we were to lose the services of members of our management team or key regional or local officers, we may be unable to find replacements satisfactory to us and our business. As a result, our operations may be disrupted and our financial performance may be adversely affected.

Assessments and other surcharges for guaranty funds, second injury funds and other mandatory pooling arrangements may reduce our profitability.

Most states require insurance companies licensed to do business in their state to bear a portion of the unfunded obligations of impaired or insolvent insurance companies. These obligations are funded by assessments, which can be expected to continue in the future in the states in which we operate. Assessments are levied by guaranty associations within the state, up to prescribed limits, on all insurers doing business in that state on the basis of the proportionate share of the premiums written by insurers doing business in that state in the lines of business in which the impaired, insolvent or failed insurer is engaged. Maximum contributions required by law in any one state in which we currently offer insurance vary between 0.2% and 2.0% of premiums written. We recorded an estimate of $4.6 million and $1.1 million for our expected liability for guaranty fund assessments at December 31, 2008 and 2007, respectively. The assessments levied on us may increase as we increase our premiums written or if we write business in additional states. In some states, we receive a credit against our premium taxes for guaranty fund assessments. The effect of these assessments or changes in them could reduce our profitability in any given period or limit our ability to grow our business.

Most states (and all of the states in which we operate) have laws that provide for second injury funds to provide compensation to injured employees for aggravation of a prior condition or injury. Their purpose is to protect employers from higher insurance costs that can occur when a subsequent injury combines with a prior disability to result in substantially increased medical or disability costs than the subsequent injury alone would have produced. This protects an employer from loss or increased insurance cost because it hires or retains an employee who has a disability. Funding is provided pursuant to individual state statutes or regulations, and typically is made by assessments on insurance companies based on premiums paid, losses paid by the fund, losses paid by the insurance industry. For example, Florida has assessed an annual rate of 4.52% of net premiums written since 2000 for its second injury fund.

Further, as a condition to conducting business in some states, insurance companies are required to participate in mandatory worker’s compensation shared market mechanisms, or pooling arrangements. These arrangements provide workers’ compensation insurance coverage to businesses that are otherwise unable to obtain coverage due, for example, to their prior loss experience. Although we price our product to account for the obligations that we may have under these pooling arrangements, we may not be successful in estimating our liability for these obligations. Accordingly, our prices may not fully account for our liabilities under pooling arrangements, which may cause a decrease in our profits. Further, insolvency of other insurance companies in these pooling arrangements would likely increase the liability of other members in the pool. The effect of these assessments and mandatory shared market mechanisms or changes in them could reduce our profitability or limit our ability to grow our business.

Risk Related to Our Common Stock

The price of our common stock may decrease, and you may lose all or part of your investment.

The trading price of our common stock may fluctuate as a result of a number of factors, many of which are beyond our control, including, among others:

 

 

 

 

quarterly variations in our results of operations;

 

 

 

 

changes in expectations as to our future results of operations, including financial estimates by securities analysts and investors;

 

 

 

 

announcements of claims against us by third parties;

51


 

 

 

 

departures of key personnel;

 

 

 

 

changes in law and regulation;

 

 

 

 

results of operations that vary from those expected by securities analysts and investors; and

 

 

 

 

future sales of shares of our common stock.

In addition, the stock market has experienced significant volatility that often has been unrelated or disproportionate to the operating performance of companies whose shares are traded. These market fluctuations could adversely affect the price of our common stock, regardless of our actual operating performance. As a result, the trading price of shares of our common stock may decrease and you may not be able to sell your shares at or above the price you paid to purchase them.

Insurance laws of Nevada and other applicable states, certain provisions of our charter documents and Nevada corporation law could prevent or delay a change of control and could also adversely affect the market price of our common stock.

Under Nevada insurance law and our amended and restated articles of incorporation that became effective upon completion of the conversion, for a period of five years following February 5, 2007 or, if earlier, until such date as we no longer directly or indirectly own a majority of the outstanding voting stock of EICN, no person may directly or indirectly acquire or offer to acquire in any manner beneficial ownership of 5% or more of any class of our voting securities without the prior approval of the Nevada Commissioner, see “Item 1—Business—Regulation—Change of Control.”

Additionally, we have insurance subsidiaries domiciled in California and Florida. The insurance laws of California and Florida require prior approval from the California DOI and the Florida OIR for any change of control of the subsidiary domiciled in their respective states. Insurance laws in many other states also contain provisions that require pre-notification to the insurance commissioners of a change in control of a non-domestic insurance company licensed in those states. “Control” is generally presumed to exist through the direct or indirect ownership of 10% or more of the voting securities of a domestic insurance company or of any entity that controls a domestic insurance company. Because we have insurance subsidiaries domiciled California, Florida and Nevada and are licensed in numerous other states, any future transaction that would constitute a change in control of us would generally require the party acquiring control to obtain the prior approval of the California Commissioner, Florida Commissioner and the Nevada Commissioner and may require pre-notification in those states that have adopted pre-notification provisions upon a change of control. Obtaining these approvals may result in a material delay of, or deter, any such transaction. These laws may discourage potential acquisition proposals or tender offers, and may delay, deter or prevent a change of control, even if the acquisition proposal or tender offer is at a premium over the then current market price for our common stock and beneficial to our stockholders.

Provisions of our amended and restated articles of incorporation and amended and restated by-laws could discourage, delay or prevent a merger, acquisition or other change in control of us, even if our stockholders might consider such a change in control to be in their best interests. These provisions could also discourage proxy contests and make it more difficult for you and other stockholders to elect Directors and take other corporate actions. In particular, our amended and restated articles of incorporation and amended and restated by-laws include provisions:

 

 

 

 

dividing our Board of Directors into three classes;

 

 

 

 

eliminating the ability of our stockholders to call special meetings of stockholders;

 

 

 

 

permitting our Board of Directors to issue preferred stock in one or more series;

 

 

 

 

imposing advance notice requirements for nominations for election to our Board of Directors or for proposing matters that can be acted upon by stockholders at the stockholder meetings;

 

 

 

 

prohibiting stockholder action by written consent, thereby limiting stockholder action to that taken at a meeting of our stockholders; and

 

 

 

 

providing our Board of Directors with exclusive authority to adopt or amend our by-laws.

These provisions may make it difficult for stockholders to replace directors and could have the effect of discouraging a future takeover attempt which is not approved by our Board of Directors, but

52


which stockholders might consider favorable. Additionally, these provisions could limit the price that investors are willing to pay in the future for shares of our common stock.

We have outstanding indebtedness, which could impair our financial strength ratings and adversely affect our ability to react to changes in our business and fulfill our debt obligations.

Our indebtedness could have significant consequences, including:

 

 

 

 

making it more difficult for us to satisfy our obligations;

 

 

 

 

limiting our ability to borrow additional amounts to fund working capital, capital expenditures, debt service requirements, the execution of our business strategy, acquisitions and other purposes;

 

 

 

 

affecting the way we manage our business due to the restrictive debt covenants;

 

 

 

 

requiring us to provide collateral which restricts our use of funds;

 

 

 

 

requiring us to dedicate a portion of our cash flow from operations to pay principal and interest on our debt, which would reduce the funds available to us for other purposes; and

 

 

 

 

making us more vulnerable to adverse changes in general economic and industry conditions, and limiting our flexibility to plan for, and react quickly to, changing conditions.

Risk Related to Our Acquisition

We may experience difficulty in integrating the operations of AmCOMP and we may not realize the anticipated benefits of the acquisition.

The expansion of our business and operations resulting from the acquisition of AmCOMP may strain our administrative, operational and financial resources. The successful integration of AmCOMP into our operations will require, among other things, the retention and assimilation of its key management, sales and other personnel; the adaptation of technology, information systems and other processes, including internal controls, and the retention and transition of policyholders, agents and brokers. Unexpected difficulties could result in increased expenses and the diversion of substantial time, effort and attention of management from our existing business. The integration process could create a number of potential challenges and adverse consequences for us, including the possible unexpected loss of key employees, agents and brokers, a loss of sales or an increase in other operating costs. We may not be able to manage the combined operation effectively or realize any of the expected synergies and cost savings from the AmCOMP acquisition. These challenges and uncertainties could have a material adverse effect on our business, financial condition and results of operations.

Item 1B. Unresolved Staff Comments

None.

53


Item 2. Properties

Our principal executive offices are located in leased premises in Reno, Nevada. In addition to serving as our corporate headquarters, it also serves as a branch office providing services in marketing, loss control and claims and underwriting related support. As of February 1, 2009, we leased 341,192 square feet of total office space in 14 states. Details of our significant locations are included in the following table:

 

 

 

Location

 

Square Feet

Corporate Offices:

 

 

Reno, Nevada

 

 

 

79,533

 

Branch Offices:

 

 

Glendale, California

 

 

 

50,373

 

Henderson, Nevada

 

 

 

44,953

 

North Palm Beach, Florida

 

 

 

32,536

 

San Francisco, California

 

 

 

23,342

 

Newbury Park, California

 

 

 

15,724

 

Other office space leases

 

 

 

94,731

 

In addition, we own a 15,120 square foot building in Carson City, Nevada, which is used as a storage facility.

We believe that our existing office space is adequate for our current needs and we will continue to enter into new lease agreements to address future space requirements, as necessary.

Item 3. Legal Proceedings

From time to time, we are involved in pending and threatened litigation in the normal course of business in which claims for monetary damages are asserted. In the opinion of management, the ultimate liability, if any, arising from such pending or threatened litigation is not expected to have a material effect on our result of operations, liquidity or financial position.

Item 4. Submission of Matters to a Vote of Security Holders

During the quarter ended December 31, 2008, no matters were submitted to a vote of stockholders.

54


PART II

Item 5. Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities

Market Information and Holders

Our common stock has been listed on the New York Stock Exchange (NYSE) under the symbol “EIG” since our initial public offering on January 31, 2007. Prior to that time, there was no public market for our common stock.

The table below sets forth the reported high and low sales prices for our common stock for each quarterly period as reported by the NYSE during the last two fiscal years.

 

 

 

 

 

2007

 

High

 

Low

First quarter (January 31—March 31)

 

 

$

 

23.85

   

 

$

 

18.00

 

Second quarter

 

 

 

22.64

   

 

 

19.16

 

Third quarter

 

 

 

21.36

   

 

 

16.07

 

Fourth quarter

 

 

 

21.72

   

 

 

15.62

 

 

 

 

 

 

2008

 

High

 

Low

First quarter

 

 

$

 

18.69

   

 

$

 

15.13

 

Second quarter

 

 

 

20.75

   

 

 

17.23

 

Third quarter

 

 

 

20.62

   

 

 

15.86

 

Fourth quarter

 

 

 

17.50

   

 

 

10.08

 

There were approximately 2,022 holders of record as of February 20, 2009.

Limitations on Acquisitions of Common Stock

Under Nevada insurance law and our amended and restated articles of incorporation that became effective on completion of the conversion, for a period of five years following February 5, 2007 or, if earlier, until such date as Employers Holdings no longer directly or indirectly owns a majority of the outstanding voting stock of EICN, no person may directly or indirectly acquire or offer to acquire in any manner beneficial ownership of five percent or more of any class of voting securities of Employers Holdings, Inc. without the prior approval by the Nevada Commissioner of an application for acquisition under Section 693A.500 of the Nevada Revised Statutes. Under Nevada insurance law, the Nevada Commissioner may not approve an application for such acquisition unless the Commissioner finds that: (a) the acquisition will not frustrate the plan of conversion as approved by our members and the Commissioner; (b) our Board of Directors has approved the acquisition or extraordinary circumstances not contemplated in the plan of conversion have arisen which would warrant approval of the acquisition; and (c) the acquisition is consistent with the purpose of relevant Nevada insurance statutes to permit conversions on terms and conditions that are fair and equitable to the members eligible to receive consideration. Accordingly, as a practical matter, any person seeking to acquire us within five years after February 5, 2007 may only do so with the approval of our Board of Directors of EICN. Furthermore, any person or entity who individually or together with an affiliate (as defined by applicable law) seeks to directly or indirectly acquire in any manner, at any time, beneficial ownership of 5% or more of any class of our voting securities will be subject to certain requirements, including the prior approval of the proposed acquisition by certain state insurance regulators, depending upon the circumstances involved. Any such acquisition without prior satisfaction of applicable regulatory requirements may be deemed void under state law.

Stockholder Dividends

Our Board of Directors authorized the payment of a quarterly dividend of $0.06 per share of common stock to our stockholders of record beginning in the second quarter of 2007. Any determination to pay additional or future dividends will be at the discretion of our Board of Directors and will be dependent upon:

 

 

 

 

the surplus and earnings of our subsidiaries and their ability to pay dividends and/or other statutorily permissible payments to us, in particular the ability of EICN and EPIC to pay dividends to EGI and, in turn, the ability of EGI to pay dividends to EHI;

55


 

 

 

 

our results of operations and cash flows;

 

 

 

 

our financial position and capital requirements;

 

 

 

 

general business conditions;

 

 

 

 

any legal, tax, regulatory and contractual restrictions on the payment of dividends; and

 

 

 

 

any other factors our Board of Directors deems relevant.

Following is a summary of dividends paid to stockholders by EHI:

 

 

 

 

 

 

 

 

 

Dividends Declared

 

First
Quarter

 

Second
Quarter

 

Third
Quarter

 

Fourth
Quarter

2007

 

 

$

 

   

 

$

 

0.06

   

 

$

 

0.06

   

 

$

 

0.06

 

2008

 

 

$

 

0.06

   

 

$

 

0.06

   

 

$

 

0.06

   

 

$

 

0.06

 

On February 25, 2009, the Board of Directors declared a $0.06 dividend per share, payable March 25, 2009, to stockholders of record on March 11, 2009. There can be no assurance that we will declare and pay any additional or future dividends.

Shares Issued that were Exempt from Registration

As consideration for our eligible members who elected to receive shares of our common stock rather than cash in the conversion from a mutual insurance holding company to a stock company on March 9, 2007, we issued 22,765,407 shares of our common stock to these members in reliance upon the exemption from registration provided by Section 3(a)(10) of the Securities Act of 1933, as amended. Prior to the issuance, we obtained a “no action” letter from the SEC indicating that the SEC’s Division of Corporation Finance would not recommend an enforcement action to the Commission if we undertook the issuance of these shares.

Issuer Purchases of Equity Securities

The following table summarizes the repurchase of our common stock for the year ended December 31, 2008:

 

 

 

 

 

 

 

 

 

Period

 

Total
Number of
Shares
Purchased

 

Average
Price
Paid
Per
Share
(1)

 

Total Number
of Shares
Purchased as
Part of Publicly
Announced
Program

 

Maximum
Number (or
Approximate
Dollar Value)
of Shares that
May Yet be
Purchased
Under the
Program
(2)

 

             

(millions)

March 17, 2008—March 31, 2008

 

 

 

56,000

   

 

$

 

17.75

   

 

 

56,000

   

 

$

 

99.0

 

April 1, 2008—April 30, 2008

 

 

 

109,300

   

 

 

18.27

   

 

 

165,300

   

 

 

97.0

 

May 1, 2008—May 31, 2008

 

 

 

105,000

   

 

 

18.85

   

 

 

270,300

   

 

 

95.0

 

June 1, 2008—June 30, 2008

 

 

 

105,000

   

 

 

19.29

   

 

 

375,300

   

 

 

93.0

 

July 1, 2008—July 31, 2008

 

 

 

219,895

   

 

 

17.27

   

 

 

595,195

   

 

 

89.2

 

August 1, 2008—August 31, 2008

 

 

 

141,500

   

 

 

17.38

   

 

 

736,695

   

 

 

86.7

 

September 1, 2008—September 30, 2008

 

 

 

50,100

   

 

 

17.97

   

 

 

786,795

   

 

 

85.8

 

 

 

 

 

 

 

 

 

 

Total 2008 Repurchases

 

 

 

786,795

   

 

 

17.99

 

 

 

 

 

 

 

 

 

 

 

 

 

 


 

 

(1)

 

 

 

Includes fees and commissions paid on stock repurchases.

 

(2)

 

 

 

On February 21, 2008, the Board of Directors authorized a stock repurchase program of up to $100.0 million of our common stock through June 30, 2009. On February 25, 2009, the Board of Directors extended this program through December 31, 2009. The shares may be repurchased from time to time at prevailing market prices in the open market and subject to market conditions and other factors. We suspended the share repurchase program in September 2008, due to the credit conditions in the financial markets. There can be no assurance that we will complete any additional repurchase of our common stock pursuant to the program in the future.

Equity and Incentive Plan

The following table gives information about our common stock that may be issued upon the exercise of options, warrants and rights under all of the Company’s existing equity compensation plans as of December 31, 2008. The Company does not have any plans not approved by the stockholders. The

56


plan is discussed further in Note 15 in the Notes to our Consolidated Financial Statements which are included herein.

 

 

 

 

 

 

 

Plan Category

 

(a)
Number of securities
to be issued upon
exercise of outstanding
options, warrants and
rights

 

(b)
Weighted-average
exercise price of
outstanding
warrants and
rights

 

(c)
Number of securities
remaining available for
future issuance under
compensation plans
(excluding securities)
reflected in column

Equity compensation plans approved

 

 

 

 

 

 

by stockholders

 

 

 

1,357,776

   

 

$

 

18.18

   

 

 

2,247,762

 

Equity compensation plans not approved by stockholders

 

 

 

   

 

 

   

 

 

 

 

 

 

 

 

 

 

Total

 

 

 

1,357,776

   

 

$

 

18.18

   

 

 

2,247,762

 

 

 

 

 

 

 

 

Performance Graph

The following graph compares the cumulative total return on $100 invested in the common stock of EHI for the period commencing on January 31, 2007, and ending on December 31, 2008 with the cumulative total return on $100 invested in each the Standard and Poor’s 500 Index (S&P 500) and the Standard and Poor’s 500 Property-Casualty Insurance Index (S&P PC). The closing market price for our common stock at December 31, 2008 was $16.50.

Employers Holdings, Inc.

 

 

 

 

 

 

 

 

 

Cumulative Total Return

 

Employers
Holdings, Inc.

 

S&P
500

 

S&P 500 P&C
Insurance Index

1/31/07(1)

 

 

$

 

100.00

   

 

$

 

100.00

   

 

$

 

100.00

 

6/30/07

 

 

 

106.66

   

 

 

105.36

   

 

 

104.74

 

12/31/07

 

 

 

84.47

   

 

 

103.92

   

 

 

89.85

 

6/30/08

 

 

 

105.35

   

 

 

91.54

   

 

 

65.47

 

12/31/08

 

 

 

84.62

   

 

 

65.47

   

 

 

63.43

 


 

 

(1)

 

 

 

Our common stock has been listed on the NYSE since our initial public offering on January 31, 2007.

57


Item 6. Selected Financial Data

The following selected historical consolidated financial data should be read in conjunction with “Item 7—Management’s Discussion and Analysis of Financial Condition and Results of Operations” and the consolidated financial statements and related notes included elsewhere in this annual report on Form 10-K. The selected historical financial data as of December 31, 2008 and 2007 and for the years ended December 31, 2008, 2007 and 2006 have been derived from our audited consolidated financial statements and related notes thereto included elsewhere in this Form 10-K. The selected historical financial data as of December 31, 2006, 2005 and 2004 and for the year ended December 31, 2005 and 2004 have been derived from our audited consolidated financial statements and related notes thereto not included in this Form 10-K. This historical financial data includes all adjustments, consisting of normal recurring adjustments that management considers necessary for a fair presentation of our financial position and results of operations for the periods presented. These historical results are not necessarily indicative of results to be expected in any future period.

The selected historical financial data reflect the ongoing impact of the LPT Agreement, a retroactive 100% quota share reinsurance agreement that our Nevada insurance subsidiary assumed on January 1, 2000 in connection with our assumption of the assets, liabilities and operations of the Fund, pursuant to legislation passed in the 1999 Nevada legislature. Upon entry into the LPT Agreement, we recorded as a liability a deferred reinsurance gain which we amortize over the period during which underlying reinsured claims are paid. We record adjustments to the direct reserves subject to the LPT Agreement based on our periodic reevaluations of these reserves.

 

 

 

 

 

 

 

 

 

 

 

 

 

Year Ended December 31,

 

2008(1)

 

2007

 

2006

 

2005

 

2004

 

 

(in thousands, except per share amounts and ratios)

Income Statement Data

 

 

 

 

 

 

 

 

 

 

Revenues:

 

 

 

 

 

 

 

 

 

 

Net premiums earned

 

 

$

 

328,947

   

 

$

 

346,884

   

 

$

 

392,986

   

 

$

 

438,250

   

 

$

 

410,302

 

Net investment income

 

 

 

78,062

   

 

 

78,623

   

 

 

68,187

   

 

 

54,416

   

 

 

42,201

 

Realized (losses) gains on investments

 

 

 

(11,524

)

 

 

 

 

180

   

 

 

54,277

   

 

 

(95

)

 

 

 

 

1,202

 

Other income

 

 

 

1,293

   

 

 

4,236

   

 

 

4,800

   

 

 

3,915

   

 

 

2,950

 

 

 

 

 

 

 

 

 

 

 

 

Total revenues

 

 

 

396,778

   

 

 

429,923

   

 

 

520,250

   

 

 

496,486

   

 

 

456,655

 

Expenses:

 

 

 

 

 

 

 

 

 

 

Losses and loss adjustment expense

 

 

 

136,515

   

 

 

143,302

   

 

 

129,755

   

 

 

211,688

   

 

 

229,219

 

Commission expense

 

 

 

43,618

   

 

 

44,336

   

 

 

48,377

   

 

 

46,872

   

 

 

55,369

 

Underwriting and other operating expenses

 

 

 

102,459

   

 

 

91,399

   

 

 

87,826

   

 

 

69,934

   

 

 

65,492

 

Interest expense

 

 

 

2,135

   

 

 

   

 

 

   

 

 

   

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Total expenses

 

 

 

284,727

   

 

 

279,037

   

 

 

265,958

   

 

 

328,494

   

 

 

350,080

 

 

 

 

 

 

 

 

 

 

 

 

Net income before income taxes

 

 

 

112,051

   

 

 

150,886

   

 

 

254,292

   

 

 

167,992

   

 

 

106,575

 

Income taxes

 

 

 

10,266

   

 

 

30,603

   

 

 

82,722

   

 

 

30,394

   

 

 

11,008

 

 

 

 

 

 

 

 

 

 

 

 

Net income

 

 

$

 

101,785

   

 

$

 

120,283

   

 

$

 

171,570

   

 

$

 

137,598

   

 

$

 

95,567

 

 

 

 

 

 

 

 

 

 

 

 

Earnings per common share(2)

 

 

 

 

 

 

 

 

 

 

Basic

 

 

$

 

2.07

   

 

$

 

2.19

   

 

 

   

 

 

   

 

 

 

Diluted

 

 

 

2.07

   

 

 

2.19

   

 

 

   

 

 

   

 

 

 

Pro forma earnings per common share

 

 

 

 

 

 

 

 

 

 

—basic and diluted—(2)

 

 

 

 

$

 

2.32

   

 

$

 

3.43

   

 

$

 

2.75

   

 

$

 

1.91

 

58


 

 

 

 

 

 

 

 

 

 

 

 

 

Year Ended December 31,

 

2008(1)

 

2007

 

2006

 

2005

 

2004

 

 

(in thousands, except per share amounts and ratios)

Selected Operating Data

 

 

 

 

 

 

 

 

 

 

Gross premiums written(3)

 

 

$

 

322,922

   

 

$

 

350,696

   

 

$

 

401,756

   

 

$

 

458,671

   

 

$

 

437,694

 

Net premiums written(4)

 

 

 

312,847

   

 

 

338,569

   

 

 

387,184

   

 

 

439,721

   

 

 

417,914

 

Losses and LAE ratio(5)

 

 

 

41.5

%

 

 

 

 

41.3

%

 

 

 

 

33.0

%

 

 

 

 

48.3

%

 

 

 

 

55.9

%

 

Commission expense ratio(6)

 

 

 

13.3

   

 

 

12.8

   

 

 

12.3

   

 

 

10.7

   

 

 

13.5

 

Underwriting and other operating expenses ratio(7)

 

 

 

31.1

   

 

 

26.3

   

 

 

22.3

   

 

 

16.0

   

 

 

16.0

 

Combined ratio(8)

 

 

 

85.9

   

 

 

80.4

   

 

 

67.7

   

 

 

75.0

   

 

 

85.4

 

Net income before impact of LPT Agreement(9)(10)(11)

 

 

$

 

83,364

   

 

$

 

102,249

   

 

$

 

152,197

   

 

$

 

93,842

   

 

$

 

72,824

 

Earnings per common share before impact of LPT(11)

 

 

 

 

 

 

 

 

 

 

Basic

 

 

$

 

1.69

 

 

 

 

 

 

 

 

 

Diluted

 

 

 

1.69

 

 

 

 

 

 

 

 

 

Pro forma earnings per common share—basic and Diluted—before impact of LPT(2)(11)

 

 

 

   

 

$

 

1.98

   

 

$

 

3.04

   

 

$

 

1.88

   

 

$

 

1.46

 

Dividends declared

 

 

$

 

0.24

   

 

 

0.18

   

 

 

   

 

 

   

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

As of December 31,

 

2008(1)

 

2007

 

2006

 

2005

 

2004

 

 

(in thousands, except ratios)

Balance Sheet Data

 

 

 

 

 

 

 

 

 

 

Cash and cash equivalents

 

 

$

 

202,893

   

 

$

 

149,703

   

 

$

 

79,984

   

 

$

 

61,083

   

 

$

 

60,414

 

Total investments

 

 

 

2,042,941

   

 

 

1,726,280

   

 

 

1,715,673

   

 

 

1,595,771

   

 

 

1,358,228

 

Reinsurance recoverable on paid and unpaid losses

 

 

 

1,087,738

   

 

 

1,061,551

   

 

 

1,107,900

   

 

 

1,151,166

   

 

 

1,206,612

 

Total assets

 

 

 

3,756,713

   

 

 

3,191,228

   

 

 

3,195,725

   

 

 

3,094,229

   

 

 

2,935,686

 

Unpaid losses and loss adjustment expense

 

 

 

2,506,478

   

 

 

2,269,710

   

 

 

2,307,755

   

 

 

2,349,981

   

 

 

2,284,542

 

Deferred reinsurance gain—LPT Agreement(9)(10)

 

 

 

406,581

   

 

 

425,002

   

 

 

443,036

   

 

 

462,409

   

 

 

506,166

 

Total liabilities

 

 

 

3,311,985

   

 

 

2,811,775

   

 

 

2,891,948

   

 

 

2,949,622

   

 

 

2,925,936

 

Total equity

 

 

 

444,728

   

 

 

379,453

   

 

 

303,777

   

 

 

144,607

   

 

 

9,750

 

Other Financial and Ratio Data

 

 

 

 

 

 

 

 

 

 

Total equity including deferred reinsurance gain LPT Agreement(9)(10)(12)

 

 

$

 

851,309

   

 

$

 

804,455

   

 

$

 

746,813

   

 

$

 

607,016

   

 

$

 

515,916

 

Total statutory surplus(13)

 

 

 

577,756

   

 

 

697,714

   

 

 

640,479

   

 

 

530,612

   

 

 

430,676

 

Net Premiums written to total statutory surplus ratio(14)

 

 

 

0.81

x

 

 

 

 

0.49

x

 

 

 

 

0.60

x

 

 

 

 

0.83

x

 

 

 

 

0.97

x

 


 

 

(1)

 

 

 

The income statement data for the year ended December 31, 2008, includes the operating results of AmCOMP from November 1, 2008 through December 31, 2008. The balance sheet data as of December 31, 2008, includes the assets and liabilities acquired from AmCOMP (see Note 4 in the Notes to our Consolidated Financial Statements which are included elsewhere in this report).

 

(2)

 

 

 

For 2007, the pro forma earnings per common share—basic—was calculated using the net income for the 12 months ended December 31, 2007, as presented on the accompanying consolidated statements of income. The weighted average shares outstanding was calculated using those shares available to eligible members in the conversion, or 50,000,002 shares, for the period prior to the IPO, and the actual weighted shares outstanding for the period after the IPO. Earnings per common share—diluted—is based on the pro forma weighted shares outstanding—basic—adjusted by the number of additional common shares that would have been outstanding had potentially dilutive common shares been issued and reduced by the number of common shares that could have been purchased from the proceeds of the potentially dilutive shares. The Company’s outstanding options have been excluded in computing the diluted earnings per share for the pro forma year ended December 31, 2007, because their inclusion would be anti-dilutive. Although there were 8,665 dilutive potential common shares at December 31, 2007, they did not impact the pro forma earnings per share number as shown. (See Note 19 in the Notes to our Consolidated Financial Statements which are included elsewhere in this report.)

 

 

 

 

 

For the years 2006 and prior, the pro forma earnings per common share—basic and diluted—is presented to depict the impact of our conversion described above, as prior to the conversion we did not have any outstanding common shares. The

59


 

 

 

 

pro forma earnings per common share—basic and diluted—was computed using only the shares of the our common stock issued to eligible members in the conversion (50,000,002), and does not include any shares issued to new investors in connection with the our initial public offering or the impact of the cash elections made by eligible members. We had no common stock equivalents outstanding for the periods presented prior to 2007 that would create a dilutive effect on pro forma earnings per share.

 

(3)

 

 

 

Gross premiums written is the sum of both direct premiums written and assumed premiums written before the effect of ceded reinsurance and the intercompany pooling agreement. Direct premiums written are the premiums on all policies our insurance subsidiaries have issued during the year. Assumed premiums written are premiums that our insurance subsidiaries have received from any authorized state-mandated pools and a previous fronting facility. (See Note 10 in the Notes to our Consolidated Financial Statements which are included elsewhere in this report.)

 

(4)

 

 

 

Net premiums written is the sum of direct premiums written and assumed premiums written less ceded premiums written. Ceded premiums written is the portion of direct premiums written that we cede to our reinsurers under our reinsurance contracts. (See Note 10 in the Notes to our Consolidated Financial Statements which are included elsewhere in this report.)

 

(5)

 

 

 

Losses and LAE ratio is the ratio (expressed as a percentage) of losses and LAE to net premiums earned.

 

(6)

 

 

 

Commission expense ratio is the ratio (expressed as a percentage) of commission expense to net premiums earned.

 

(7)

 

 

 

Underwriting and other operating expenses ratio is the ratio (expressed as a percentage) of underwriting and other operating expenses to net premiums earned.

 

(8)

 

 

 

Combined ratio is the sum of the losses and LAE ratio, the commission expense ratio and the underwriting and other operating expenses ratio.

 

(9)

 

 

 

In connection with our January 1, 2000 assumption of the assets, liabilities and operations of the Fund, our Nevada insurance subsidiary assumed the Fund’s rights and obligations associated with the LPT Agreement, a retroactive 100% quota share reinsurance agreement with third party reinsurers, which substantially reduced exposure to losses for pre-July 1, 1995 Nevada insured risks. Pursuant to the LPT Agreement, the Fund initially ceded $1.525 billion in liabilities for incurred but unpaid losses and LAE, which represented substantially all of the Fund’s outstanding losses as of June 30, 1999 for claims with original dates of injury prior to July 1, 1995.

 

(10)

 

 

 

Deferred reinsurance gain—LPT Agreement reflects the unamortized gain from our LPT Agreement. Under GAAP, this gain is deferred and is being amortized using the recovery method, whereby the amortization is determined by the proportion of actual reinsurance recoveries to total estimated recoveries, and the amortization is reflected in losses and LAE. We periodically reevaluate the remaining direct reserves subject to the LPT Agreement. Our reevaluation results in corresponding adjustments, if needed, to reserves, ceded reserves, reinsurance recoverables and the deferred reinsurance gain, with the net effect being an increase or decrease, as the case may be, to net income.

 

(11)

 

 

 

We define net income before impact of LPT Agreement as net income less: (a) amortization of deferred reinsurance gain—LPT Agreement and (b) adjustments to LPT Agreement ceded reserves. For 2006 and prior, we define pro forma earnings per share—basic and diluted—before impact of the LPT Agreement as net income before impact of the LPT Agreement divided by the common shares issued in our conversion (50,000,002). These are not measurements of financial performance under GAAP and should not be considered in isolation or as an alternative to any other measure of performance derived in accordance with GAAP.

We present net income before impact of LPT Agreement because we believe that it is an important supplemental measure of operating performance to be used by analysts, investors and other interested parties in evaluating us. We present pro forma earnings per share—basic and diluted—before impact of the LPT Agreement because we believe that it is an important supplemental measure of performance by outstanding common share issued in our conversion.

The LPT Agreement was a non-recurring transaction which does not result in ongoing cash benefits and consequently we believe these presentations are useful in providing a meaningful understanding of our operating performance. In addition, we believe these non-GAAP measures, as we have defined them, are helpful to our management in identifying trends in our performance because the item excluded has limited significance in our current and ongoing operations.

The table below shows the reconciliation of net income to net income before impact of LPT Agreement for the periods presented:

 

 

 

 

 

 

 

 

 

 

 

 

 

Year Ended December 31,

 

2008

 

2007

 

2006

 

2005

 

2004

 

 

(in thousands)

Net income

 

 

$

 

101,785

   

 

$

 

120,283

   

 

$

 

171,570

   

 

$

 

137,598

   

 

$

 

95,567

 

Less: Impact of LPT Agreement:

 

 

 

 

 

 

 

 

 

 

Amortization of deferred reinsurance gain—LPT Agreement

 

 

 

18,421

   

 

 

18,034

   

 

 

19,373

   

 

 

16,891

   

 

 

20,296

 

Adjustment to LPT Agreement ceded reserves(a)

 

 

 

   

 

 

   

 

 

   

 

 

26,865

   

 

 

2,447

 

 

 

 

 

 

 

 

 

 

 

 

Net Income before impact of LPT

 

 

 

 

 

 

 

 

 

 

Agreement

 

 

$

 

83,364

   

 

$

 

102,249

   

 

$

 

152,197

   

 

$

 

93,842

   

 

$

 

72,824

 

 

 

 

 

 

 

 

 

 

 

 


 

 

(a)

 

 

 

Any adjustment to the estimated direct reserves ceded under the LPT Agreement is reflected in losses and LAE for the period during which the adjustment is determined, with a corresponding increase or decrease in net income in the period. There is a corresponding change to the reinsurance recoverables on unpaid losses as well as the deferred reinsurance gain. A cumulative adjustment to the amortization of the deferred gain is also then recognized in earnings so that the deferred reinsurance gain reflects the balance that would have existed had the revised reserves been recognized at the inception of the LPT Agreement. (See Note 2 in the Notes to our Consolidated Financial Statements which are included elsewhere in this report.)

60


 

(12)

 

 

 

We define total equity including deferred reinsurance gain—LPT Agreement as total equity plus deferred reinsurance gain—LPT Agreement. Total equity including deferred reinsurance gain—LPT Agreement is not a measurement of financial position under GAAP and should not be considered in isolation or as an alternative to total equity or any other measure of financial health derived in accordance with GAAP.

 

 

 

 

 

We present total equity including deferred reinsurance gain—LPT Agreement because we believe that it is an important supplemental measure of financial position to be used by analysts, investors and other interested parties in evaluating us. The LPT Agreement was a non-recurring transaction and the treatment of the deferred gain does not result in ongoing cash benefits or charges to our current operations and consequently we believe this presentation is useful in providing a meaningful understanding of our financial position.

The table below shows the reconciliation of total equity to total equity including deferred reinsurance gain—LPT Agreement for the periods presented:

 

 

 

 

 

 

 

 

 

 

 

 

 

As of December 31,

 

2008

 

2007

 

2006

 

2005

 

2004

 

 

(in thousands)

Total equity

 

 

$

 

444,728

   

 

$

 

379,453

   

 

$

 

303,777

   

 

$

 

144,607

   

 

$

 

9,750

 

Deferred reinsurance gain—LPT Agreement

 

 

 

406,581

   

 

 

425,002

   

 

 

443,036

   

 

 

462,409

   

 

 

506,166

 

 

 

 

 

 

 

 

 

 

 

 

Total equity including deferred reinsurance gain—LPT Agreement

 

 

$

 

851,309

   

 

$

 

804,455

   

 

$

 

746,813

   

 

$

 

607,016

   

 

$

 

515,916

 

 

 

 

 

 

 

 

 

 

 

 

 

(13)

 

 

 

Total statutory surplus represents the total consolidated surplus of EICN and EPIC, including their wholly-owned subsidiaries ECIC and EAC, respectively, our insurance subsidiaries, prepared in accordance with the accounting practices of the NAIC, as adopted by California, Florida or Nevada, as the case may be. (See Note 16 in the Notes to our Consolidated Financial Statements which are included elsewhere in this report.)

 

(14)

 

 

 

Net premiums written to total statutory surplus ratio is the ratio of our insurance subsidiaries’ annual net premiums written to total statutory surplus.

61


Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations

The following discussion and analysis of our financial condition and results of operations should be read in conjunction with the consolidated financial statements and the accompanying notes thereto included in Item 8 and Item 15 of this report. In addition to historical information, the following discussion contains forward-looking statements that are subject to risks and uncertainties and other factors described in Item 1A of this report. Our actual results in future periods may differ from those referred to herein due to a number of factors, including the risks described in the sections entitled “Risk Factors” and “Forward-Looking Statements” elsewhere in this report.

Overview

We are a specialty provider of workers’ compensation insurance focused on select small businesses engaged in low to medium hazard industries. Workers’ compensation is a statutory system under which an employer is required to pay for its employees’ medical, disability and vocational rehabilitation and death benefit costs for work-related injuries or illnesses. Our business has historically targeted businesses located in several western states, primarily California and Nevada. During 2007, we were the second, ninth and twenty-third largest non-governmental writer of workers’ compensation insurance in Nevada, California and the United States, respectively, based on direct premiums written, as reported by A.M. Best.

On October 31, 2008, we acquired 100% of the outstanding common stock of AmCOMP Incorporated (AmCOMP) for $188.4 million. As a result of this acquisition, we are currently conducting business in 29 states from coast to coast, including concentrations in California, Florida and Nevada. We are also licensed to write business in seven additional states and the District of Columbia. We believe this acquisition provides significant opportunity to make progress in executing our strategic goals and achieving our vision of being the leader in the property and casualty insurance industry specializing in workers’ compensation. Our results of operations for 2008 include the acquired operations of AmCOMP for the period November 1, 2008 through December 31, 2008.

We believe we benefit by targeting small businesses, a market that is characterized by fewer competitors, more attractive pricing and strong persistency when compared to the U.S. workers’ compensation insurance industry in general. As a result of our disciplined underwriting standards, we believe we are able to price our policies at levels which are competitive and profitable. Our approach to underwriting is therefore consistent with our strategy of not sacrificing profitability and stability for top-line revenue growth.

In 2008, we wrote 69.4% and 11.6% of our direct premiums written in California and Nevada, respectively. We market and sell our workers’ compensation insurance products through independent local and regional agents and brokers, and through our strategic distribution partners, including our principal strategic partners, ADP, Inc. (ADP) and Wellpoint, Inc. (Wellpoint). In 2008, we wrote $83.0 million, or 25.7%, of our gross premiums written through ADP and Wellpoint.

We commenced operations as a private domestic mutual insurance company on January 1, 2000 when our Nevada insurance subsidiary assumed the assets, liabilities and operations of the Nevada State Industrial Insurance System (the Fund). The Fund had over 80 years of workers’ compensation experience in Nevada. In July 2002, we acquired the renewal rights to a book of workers’ compensation insurance business, and certain other tangible and intangible assets, from Fremont Compensation Insurance Group and its affiliates (Fremont), primarily comprising accounts in California and, to a lesser extent, in Idaho, Montana, Utah and Colorado. Because of the Fremont transaction, we were able to establish our important relationships and distribution agreements with ADP and Wellpoint.

In connection with our January 1, 2000 assumption of the assets, liabilities and operations of the Fund, our Nevada insurance subsidiary assumed the Fund’s rights and obligations associated with the LPT Agreement, a retroactive 100% quota share reinsurance agreement with third party reinsurers, which substantially reduced exposure to losses for pre-July 1, 1995 Nevada insured risks. Pursuant to the LPT Agreement, the Fund initially ceded $1.525 billion in liabilities for the incurred but unpaid losses and LAE, which represented substantially all of the Fund’s outstanding losses as of June 30, 1999 for claims with original dates of injury prior to July 1, 1995. Entry into the LPT Agreement resulted in a deferred reinsurance gain in accordance with U.S. generally accepted accounting principles (GAAP),

62


and this deferred gain is being amortized using the recovery method, whereby the amortization is determined by the proportion of actual reinsurance recoveries to total estimated recoveries, and the amortization is reflected in losses and LAE. We periodically reevaluate the remaining direct reserves subject to the LPT Agreement. Our reevaluation results in corresponding adjustments, if needed, to reserves, ceded reserves, reinsurance recoverables and the deferred reinsurance gain, with the net effect being an increase or decrease, as the case may be, to net income. In addition, we receive a contingent commission under the LPT Agreement. Increases and decreases in the contingent commission are reflected in our commission expense, see “—Results of Operations”.

We operate in a single reportable segment with 17 territorial offices serving the various states in which we are currently doing business.

The workers’ compensation insurance market is highly competitive. Our strategy across market cycles is to maintain underwriting profitability, manage our expenses and focus on underserved markets within our targeted classes of businesses that we believe will provide greater opportunities for profitable returns.

Revenues

We derive our revenues primarily from the following:

Net Premiums Earned. Our net premiums earned have historically been generated primarily in California and Nevada. In California, we have reduced our premium rates by 62.5% from September 2003 through December 31, 2008, including a decline of 38.5% since January 1, 2006 based on our internal actuarial analysis of current and anticipated loss cost trends. This compared with the recommendation of the California Commissioner of Insurance (California Commissioner) of a 45.0% rate decline since January 1, 2006. In November 2007, the California Commissioner recommended that there be no overall change in pure premium rates for policies written on or after January 1, 2008. This was the first recommendation of no rate decrease by the California Commissioner since the adoption of the benefit reforms of 2003 and 2004. In May 2008, the California Commissioner announced that stability in the workers’ compensation insurance marketplace had eliminated the need for an interim pure premium rate advisory. In October 2008, in response to a recommendation by the California Workers’ Compensation Insurance Rating Bureau (WCIRB) to increase advisory rates by 16.0%, the California Commissioner approved a 5.0% average increase in advisory pure premium rates.

The recommendation of the WCIRB does not reflect the cost impact of proposed changes to the Permanent Disability Rating Schedule (PDRS). If the proposed changes are adopted, the WCIRB has indicated that it will amend its recommendation to increase pure premium rates by an additional 3.7%. The WCIRB has also indicated that it will recommend that pure premium rates applicable to the unexpired portion of the 2008 policies be increased by 3.7% for the PDRS change.

Based on our most recent analysis of California loss trends, medical cost inflation and the competitive market, we have filed for an overall average 10.0% rate increase for new or renewal policies incepting on or after February 1, 2009. If the PDRS change is adopted, we will re-evaluate the adequacy of our rate level and may decide to amend our filing.

In Nevada, our rate level decreased in 2008 as a result of a decision by the Nevada Commissioner of Insurance (Nevada Commissioner) to decrease loss costs effective March 1, 2008 by 10.5%, which we subsequently adopted.

In February 2009, the Nevada Commissioner announced the approval of a filing submitted by the National Council on Compensation Insurance (NCCI) for an average loss cost decrease of 4.9% for new and renewal policies incepting on or after March 1, 2009. According to the Nevada Commissioner, decreasing claim frequency was cited as the primary driver of the proposed decrease, which more than offset increasing indemnity and medical costs per claim, the cost of living benefit adjustments that were enacted during the 2003 Legislative session and the impact of the payroll cap. Our Nevada rates continue to be based upon our internal actuarial analysis of current and anticipated loss trends. We have filed for an average 7.7% rate decrease for new and renewal policies incepting on or after March 1, 2009. We cannot determine the effect on our profitability at this time, or if there will be continued downward pricing pressure in Nevada.

63


We experienced a decline in the number of policies in-force in Nevada in 2008, which was the result of overall economic conditions and competitive pressures. Excluding the impacts of the acquisition of AmCOMP, our policy count growth, primarily in California, mitigated some of the decline in premiums we experienced as a result of declining rate levels and the affects of the economic recession. Companywide, we expect to see continued downward pressure on premiums in 2009, which will be partially offset by policy count growth, including growth attributable to the acquisition of AmCOMP. It is uncertain how these trends will impact profitability.

Including the acquired operations of AmCOMP, approximately 10% of our business will be generated in Florida. Florida is an “administered pricing” state and rate changes adopted by the Florida Commissioner of Insurance (Florida Commissioner) will affect the rates that we are able to charge in that state.

In 2003, Florida enacted workers’ compensation reforms. The reforms have resulted in significant declines in claim frequency, an improvement in loss development and a reduction in the cost of claims. As a result, the Florida Commissioner approved an 18.4% rate decrease for all new and renewal policies effective January 1, 2008 and an 18.6% rate decrease for all new and renewal policies effective January 1, 2009, a cumulative effective rate decrease of 60.5% since 2003. On January 26, 2009, the Florida Commissioner announced that he would approve a 6.4% increase in workers’ compensation rates to be effective April 1, 2009, for new and renewal business. This proposed rate increase is the result of the impact of an October 2008 Florida Supreme Court decision that materially impacted the statutory caps on attorney fees that were part of the 2003 reforms. We cannot determine the full effect on our profitability at this time or if there will be continued downward pricing pressure in Florida.

Net Investment Income and Realized Gains (Losses) on Investments. We invest our statutory surplus and the funds supporting our insurance liabilities (including unearned premiums and unpaid losses and loss adjustment expenses (LAE)) in fixed maturity securities and equity securities. In addition, a portion of these funds is held in cash and cash equivalents to pay current claims. Net investment income includes interest and dividends earned on our invested assets and amortization of premiums and discounts on our fixed maturity securities less bank service charges, custodial and portfolio management fees. Realized gains and losses on our investments are reported separately from our net investment income. Realized gains (losses) on investments include the gain or loss on a security at the time of sale compared to its original cost (equity securities) or amortized cost (fixed maturity investments). Net unrealized gains or losses on our securities are reported separately within accumulated other comprehensive income on our balance sheet.

We monitor our portfolio to preserve principal values whenever possible. All securities in an unrealized loss position are reviewed to determine whether the impairment is other-than-temporary. When, in the opinion of management, an impairment is determined to be other-than-temporary, the security is written-down to its fair value and the amount written-down is recorded in earnings as a realized loss on investments in the period in which other-than-temporary determination is made.

Conning Asset Management (Conning), our portfolio manager, follows our written investment guidelines based on strategies approved by our Board of Directors. Our investment strategy focuses on maximizing economic value through dynamic asset/liability management, subject to regulatory and rating agency constraints. The fixed maturity securities portion of our portfolio maintains a duration target of 5.00 and a maximum tax-exempt capacity of not more than 60% of the total fixed maturity portfolio. The equity portion of our portfolio has an authorized allocation range of 6-20%. Decreasing the equity allocation has the effect of decreasing surplus volatility (because under statutory accounting principles, equity securities are carried at fair value with the unrealized gains/losses charged directly to surplus in contrast to fixed income securities which are carried at amortized cost with no impact on surplus due to changes in fair value). At year-end, our equity position has fallen below our selected target of 6.0% to 2.6% due to current economic conditions, market volatility and the consolidation of the AmCOMP investment portfolio. The decreasing equity allocation has helped to increase the tax-equivalent investment yield from 5.37% for the year ended December 31, 2007 to 5.52% for the year ended December 31, 2008. Our tax-exempt allocation is supported by our strong operating profitability and tax-paying status. As this process is dynamic in nature and reviewed at a detailed level on a quarterly basis, there could be further changes in the duration and allocation of the portfolio.

64


Expenses

Our expenses consist of the following:

Losses and LAE. Losses and LAE represent our largest expense item and include claim payments made, estimates for future claim payments and changes in those estimates for current and prior periods and costs associated with investigating, defending and adjusting claims. The quality of our financial reporting depends in large part on accurately predicting our losses and LAE, which are inherently uncertain as they are estimates of the ultimate cost of individual claims based on actuarial estimation techniques. In states other than Nevada, we rely on a combination of industry experience and our specific experience to establish our best estimate of losses and LAE reserves. The interpretation of historical data can be impacted by external forces, principally regulatory changes, economic fluctuations and legal trends. In recent years, we experienced lower losses and LAE in California than we anticipated due to factors such as regulatory reform designed to reduce loss costs in that market and lower than expected inflation. The joint marketing of our workers’ compensation insurance with Wellpoint’s health insurance products also assists in reducing losses since employees make fewer workers’ compensation claims because they are insured for non-work related illnesses or injuries and thus are less likely to seek treatment for a non-work related illness or injury through their employers’ workers’ compensation insurance carrier.

Commission Expense. Commission expense includes commissions to our agents and brokers for the premiums that they produce for us, and is net of contingent commission income related to the LPT Agreement. Commissions paid to our agents and brokers are deferred and amortized to commission expense in our statements of income as the premiums generating these commissions and fees are earned. We pay commissions that we believe are competitive with other workers’ compensation insurers.

Underwriting and Other Operating Expenses. Underwriting and other operating expenses include the costs to acquire and maintain an insurance policy (excluding commissions) consisting of premium taxes and certain other general expenses that vary with, and are primarily related to, producing new or renewal business. These acquisition costs are deferred and amortized to underwriting and other operating expenses in the statement of income as the related premiums are earned. Other underwriting expenses consist of policyholder dividends, changes in estimates of future write-offs of premiums receivable, general administrative expenses such as salaries, rent, office supplies, depreciation and all other operating expenses not otherwise classified separately, and boards, bureaus and assessments of statistical agencies for policy service and administration items such as rating manuals, rating plans and experience data. Our underwriting and other operating expenses ratio (percentage of net premiums earned) is a reflection of our operational efficiency in producing, underwriting and administering our business.

Critical Accounting Policies

Management believes it is important to understand our accounting policies in order to understand our financial statements. Management considers some of these policies to be very important to the presentation of our financial results because they require us to make estimates and assumptions. These estimates and assumptions affect the reported amounts of our assets, liabilities, revenues and expenses and the related disclosures. Some of the estimates result from judgments that can be subjective and complex and, consequently, actual results in future periods might differ from these estimates.

Management believes that the most critical accounting policies relate to the reporting of reserves for losses and LAE, including losses that have occurred but have not been reported prior to the reporting date, amounts recoverable from reinsurers, recognition of premium revenue, deferred income taxes and the valuation of investments.

The following is a description of our critical accounting policies:

Reserves for Losses and Loss Adjustment Expenses

We are directly liable for losses and LAE under the terms of insurance policies our insurance subsidiaries underwrite. Significant periods of time can elapse between the occurrence of an insured

65


loss, the reporting of the loss to the insurer and the insurer’s payment of that loss. Our loss reserves are reflected in our balance sheets under the line item caption “unpaid losses and loss adjustment expenses.” As of December 31, 2008, our reserve for unpaid losses and LAE, net of reinsurance, was $1.4 billion.

Accounting for workers’ compensation insurance requires us to estimate the liability for the expected ultimate cost of unpaid losses and LAE, referred to as loss reserves, as of a balance sheet date. Our estimate of loss reserves is intended to equal the difference between the expected ultimate losses and LAE of all claims that have occurred as of a balance sheet date and amounts already paid. Management establishes the loss reserve based on its own analysis of emerging claims experience and environmental conditions in our markets and review of the results of various actuarial projection methods and their underlying assumptions. Our aggregate carried reserve for unpaid losses and LAE is a point estimate, which is the sum of our reserves for each accident year in which we have exposure. This aggregate carried reserve calculated by us represents our best estimate of our outstanding unpaid losses and LAE.

Maintaining the adequacy of the loss reserve estimate is an inherent risk of the workers’ compensation insurance business. As described below, workers’ compensation claims may be paid over a long period of time. Therefore, estimating reserves for workers’ compensation claims may involve more uncertainty than estimating reserves for other lines of insurance with shorter or more definite periods between occurrence of the claim and final determination of the claim amount. The amount by which estimated losses in the aggregate, measured subsequently by reference to payments and additional estimates, differ from those previously estimated for a specific time period is known as “reserve development.” Reserve development is unfavorable when payments for losses are made for more than the levels at which they were reserved or when subsequent estimates indicate a basis for reserve increases on open claims. In this case, the previously estimated loss reserves are considered “deficient.” Reserve development is favorable when estimates of ultimate losses indicate a decrease in established reserves. In this case, the previously estimated loss reserves are considered “redundant.” Reserve development, whether due to an increase or decrease in the aggregate estimated losses, is reflected in operating results through an adjustment to incurred losses and LAE during the accounting period in which the development is recognized.

Although claims for which reserves are established may not be paid for several years or more, we do not discount loss reserves in our financial statements for the time value of money.

The three main components of our reserves for unpaid losses and LAE are case reserves, “incurred but not reported” or IBNR reserves, and LAE reserves.

Case reserves are estimates of future claim payments based upon periodic case-by-case evaluation and the judgment of our claims adjusting staff, as applied at the individual claim level. Our claims examiners determine these case reserves for reported claims on a claim-by-claim basis, based on the examiners’ judgment and experience and on our case reserving practices. We update and monitor our case reserves frequently as appropriate to reflect current information. Our case reserving practices account for the type of occupation or business, the circumstances surrounding the claim, the nature of the accident and of the resulting injury, the current medical condition and physical capabilities of the injured worker, the expected future course and cost of medical treatment and of the injured worker’s disability, the existence of dependents of the injured worker, policy provisions, the statutory benefit provisions applicable to the claim, relevant case law in the state, and potentially other factors and considerations.

IBNR is an actuarial estimate of future claim payments beyond those considered in the case reserve estimates, relating to claims arising from accidents that occurred during a particular time period on or prior to the balance sheet date. Thus, IBNR is the compilation of the estimated ultimate losses for each accident year less amounts that have been paid and case reserves. IBNR reserves, unlike case reserves, do not apply to a specific claim, but rather apply to the entire body of claims arising from a specific time period. IBNR primarily provides for costs due to:

 

 

 

 

future claim payments in excess of case reserves on recorded open claims;

 

 

 

 

additional claim payments on closed claims; and

 

 

 

 

the cost of claims that have not yet been reported to us.

66


Most of our IBNR reserves relate to estimated future claim payments over and above our case reserves on recorded open claims. For workers’ compensation, most claims are reported to the employer and to the insurance company relatively quickly, and relatively small amounts are paid on claims that already have been closed (which we refer to as “reopenings”). Consequently, late reporting and reopening of claims are a less significant part of IBNR for our insurance subsidiaries.

LAE reserves are our estimate of the diagnostic, legal, administrative and other similar expenses that will be incurred in the future managing claims, including IBNR, that have occurred on or before the balance sheet date. LAE reserves are established in the aggregate, rather than on a claim-by-claim basis.

A portion of our losses and LAE obligations are ceded to unaffiliated reinsurers. We establish our losses and LAE reserves both gross and net of ceded reinsurance. The determination of the amount of reinsurance that will be recoverable on our losses and LAE reserves includes both the reinsurance recoverable from our excess of loss reinsurance policies, as well as reinsurance recoverable under the terms of the LPT Agreement. Our reinsurance arrangements also include an intercompany pooling arrangement between EICN, ECIC, EPIC and EAC, whereby each insurance subsidiary cedes some of its premiums, losses, and LAE to the other, but this intercompany pooling arrangement does not affect our consolidated financial statements included elsewhere in this report.

Our reserve for unpaid losses and loss adjustment expenses (gross and net), as well as the above-described main components of such reserves, were as follows:

 

 

 

 

 

 

 

 

 

December 31,

 

2008

 

2007

 

2006

 

 

(in thousands)

Case reserves

 

 

$

 

886,789

   

 

$

 

740,133

   

 

$

 

753,102

 

IBNR

 

 

 

1,293,313

   

 

 

1,235,124

   

 

 

1,261,521

 

LAE

 

 

 

326,376

   

 

 

294,453

   

 

 

293,132

 

 

 

 

 

 

 

 

Gross unpaid losses and LAE

 

 

 

2,506,478

   

 

 

2,269,710

   

 

 

2,307,755

 

Reinsurance recoverables on unpaid losses and LAE, gross

 

 

 

1,076,350

   

 

 

1,052,641

   

 

 

1,098,103

 

 

 

 

 

 

 

 

Net unpaid losses and LAE

 

 

$

 

1,430,128

   

 

$

 

1,217,069

   

 

$

 

1,209,652

 

 

 

 

 

 

 

 

Workers’ compensation is considered to be a “long-tail” line of insurance, meaning that there can be an extended elapsed period between when a claim occurs (when the worker is injured on the job) and the final payment and resolution of the claim. As discussed above, the “long-tail” for workers’ compensation usually is not caused by a delay in the reporting of the claim. The vast majority of our workers’ compensation claims are reported very promptly. The “long-tail” for workers’ compensation is caused by the fact that benefits are often paid over a long period of time, and many of the benefit amounts are difficult to determine in advance of their payment. Our obligations with respect to an injured worker may include medical care and disability-related payments for the duration of the injured worker’s disability, in accordance with state workers’ compensation statutes, all of which payments are considered as part of a single workers’ compensation claim and are our responsibility if we were providing coverage to the employer on the date of injury. For example, in addition to medical expenses, an injured worker may receive payments for lost income associated with total or partial disability, whether temporary or permanent (i.e., the disability is expected to continue until normal retirement age or death, whichever comes first). We may also be required to make payments, often over a period of many years, to surviving spouses and children of workers who are killed in the course and scope of their employment. The specific components of injured workers’ benefits are defined by the laws in each state.

Based on historical insurance industry experience countrywide, as reported by A.M. Best, approximately ten percent of workers’ compensation claim dollars are expected to be paid more than ten years after the claim occurred. While our payout pattern likely will differ from that of the industry, industry experience illustrates the general duration of workers’ compensation claims. The duration of the injured worker’s disability, the course and cost of medical treatment, as well as the lifespan of dependents, are uncertain and are difficult to determine in advance. We endeavor to minimize this risk by closing claims promptly, to the extent feasible. In addition, there are no policy limits on our liability for workers’ compensation claims as there are for other forms of insurance. We endeavor to mitigate

67


this risk by purchasing reinsurance that will provide us with financial protection against the impact of very large claims and catastrophes.

Although we update and monitor our case reserves frequently as appropriate to reflect current information, it is very difficult to set precise case reserves for an individual claim due to the inherent uncertainty about the future duration of a specific injured worker’s disability, the course and cost of medical care for that injured worker, and the other factors described above. Therefore, in addition to establishing case reserves on a claim-by-claim basis, we, like other workers’ compensation insurance companies, establish IBNR reserves based on analyses and projections of aggregate claims data. Evaluating data on an aggregate basis eliminates some of the uncertainty associated with an individual claim. However, considerable uncertainty remains as many claims can be affected simultaneously by changes in environmental conditions such as medical technology, medical costs and medical cost inflation, economic conditions, the legal and regulatory climate, and other factors. The cost of a group of workers’ compensation claims is not known with certainty until every one of the claims is ultimately closed.

Unpaid LAE is also estimated and monitored. The amount that will be spent managing claims will depend on the duration of the claims, the course of the injured worker’s disability and medical treatment, the nature and degree of any disputes relating to our obligations to the claimant, the administrative and legal environment in which issues are addressed and resolved, and the cost of the Company personnel and other resources that are used in the management of claims. Therefore, our LAE reserves also contribute to the overall uncertainty of our aggregate reserve for unpaid losses and LAE.

For the reasons described above, estimating reserves for workers’ compensation claims may be more uncertain than estimating reserves for other lines of insurance with shorter or more definite periods between occurrence of the claim and final determination of the ultimate loss and with policy limits on liability for claim amounts. Accordingly, our reserves may prove to be inadequate to cover our actual losses and LAE.

Actuarial methodologies are used by workers’ compensation insurance companies, including us, to analyze and estimate the aggregate amount of unpaid losses and LAE. As mentioned above, management considers the results of various actuarial projection methods and their underlying assumptions, among other factors, in establishing the reserves for unpaid losses and LAE.

Judgment is required in the actuarial estimation of unpaid losses and LAE. The judgments include the selection of methodologies to project the ultimate cost of claims; the selection of projection parameters based on historical company data, industry data, and other benchmarks; the identification and quantification of potential changes in parameters from historical levels to current and future levels due to changes in future claims development expectations caused by internal or external factors; and, the weighting of differing reserve indications that result from alternative methods and assumptions. The adequacy of our ultimate loss reserves, which are based on estimates, is inherently uncertain and represents a significant risk to our business, which we attempt to mitigate through our claims management process and by monitoring and reacting to statistics relating to the cost and duration of claims. However, no assurance can be given as to whether the ultimate liability will be more or less than our loss reserve estimates.

We retain independent consulting actuaries (consulting actuaries) to perform comprehensive studies of our losses and LAE liability on a semi-annual basis. The role of our consulting actuaries is to conduct sufficient analyses to produce a range of reasonable estimates, as well as a point estimate, of our unpaid losses and LAE liability, and to present those results to our actuarial staff and to management.

For purposes of analyzing claim payment and emergence patterns and trends over time, we compile and aggregate our claims data by grouping the claims according to the year or quarter in which the claim occurred (“accident year” or “accident quarter”), since each such group of claims is at a different stage of progression toward the ultimate resolution and payment of those claims. The claims data is aggregated and compiled separately for different types of claims and/or claimant benefits. For our Nevada business, where a substantial detailed historical database is available from the Fund (from which our Nevada insurance subsidiary, EICN, assumed assets, liabilities and operations in 2000), these

68


separate groupings of benefit types include death, permanent total disability, permanent partial disability, temporary disability, medical care and vocational rehabilitation. Third party subrogation recoveries are separately analyzed and projected.

Both the consulting actuaries and the internal actuarial staff select and apply a variety of generally accepted actuarial methods to our data. The methods applied vary somewhat according to the type of claim benefit being analyzed. The primary methods utilized in recent evaluations are as follows:

Paid Bornhuetter-Ferguson Method. A method assigning partial weight to initial expected losses for each accident year and partial weight to observed paid losses. The weights assigned to the initial expected losses decrease as the accident year matures. This method is used to evaluate both our Nevada business and our other than Nevada business.

Reported Bornhuetter-Ferguson Method. A method assigning partial weight to the initial expected losses and partial weight to observed reported loss dollars (paid losses plus case reserves). The weights assigned to the initial expected losses decrease as the accident year matures. This method is used to evaluate our other than Nevada business.

Paid Development Method. A method that uses actual historical, cumulative paid losses by accident year to develop estimated ultimate losses. The overall development is based on the assumption that each accident year will develop to estimated ultimate cost in a manner that is analogous to prior years, adjusted as deemed appropriate, for the expected effects of known changes in the workers’ compensation environment, and, to the extent necessary, supplemented by analyses of the development of broader industry data. This method is used to evaluate both our Nevada business and our other than Nevada business. For our Nevada business, an additional variant of this method is used that involves adjusting historical data for inflation to common cost level, and projecting future loss payments at selected inflation rates.

Reported Development Method. A method that uses actual historical, cumulative reported loss dollars by accident year to develop estimated ultimate losses. The overall development is based on the assumption that each accident year will develop to estimated ultimate cost in a manner that is analogous to prior years, adjusted as deemed appropriate, for the expected effects of known changes in the workers’ compensation environment, and, to the extent necessary, supplemented by analyses of the development of broader industry data. This method is used to evaluate our other than Nevada business.

Frequency-Severity Method. This method separately projects the ultimate number of claims for an accident year, based on historical claim reporting patterns, and the average cost per claim. The average cost per claim is projected both by inflation-adjusting other accident years’ average cost per claim, and by observing and extrapolating based on historical patterns in the per-claim cost observed to date for the accident year. This method is used to evaluate our Nevada business.

Initial Expected Loss Method. This method is used directly, and also as an input to the Bornhuetter-Ferguson methods. Initial expected losses for an accident year are based on one or more of: industry-benchmark losses per dollar of payroll for the mix of employment classes insured, prior evaluation dates’ projections of ultimate losses for the accident year, and by applying to premiums a set of initial expected loss ratios selected after analyzing the development projections for each accident year, loss trends, statutory benefit changes, rate change, and historical company loss ratios.

Each of the methods listed above requires the selection and application of parameters and assumptions. The key parameters and assumptions are: the pattern with which our aggregate claims data will be paid or will emerge over time; claims cost inflation rates; and trends in the frequency of claims, both overall and by severity of claim. Of these, we believe the most important are the pattern with which our aggregate claims data will be paid or emerge over time and claims cost inflation rates. Each of these key items is discussed in the following paragraphs.

All of the methods depend in part on the selection of an expected pattern with which the aggregate claims data will be paid or will emerge over time. We compile, to the extent available, long-term and short-term historical data for our insurance subsidiaries, organized in a manner which provides an indication of the historical patterns with which claims have emerged and have been paid. To the extent that the historical data may not provide sufficient information about future patterns, whether due to environmental changes such as legislation or due to the small volume or short history of data for some

69


segments of our business, benchmarks based on industry data, and forecasts made by industry rate bureaus regarding the effect of legislative benefit changes on such patterns, may be used to supplement, adjust, or replace patterns based on our subsidiaries’ historical data. Actuarial judgment is required in selecting the patterns to apply to each segment of data being analyzed, and our views regarding current and future claim patterns are among the factors that enter into our establishment of the losses and LAE reserves at each balance sheet date. When short-term averages or external rate bureau analyses indicate that the claims patterns are changing from historical company or industry patterns, that new or forecasted information typically is factored into the methodologies gradually, so that the projections will not overreact to what may turn out to be a temporary or unwarranted assumption about changes in patterns. When new claims emergence or payment patterns have appeared in the actual data repeatedly over multiple evaluations, those new patterns are given greater weight in the selection process. Because some claims are paid over many years, the selection of claim emergence and payment patterns involves judgmentally estimating the manner in which recently-occurring claims will develop many years or decades in the future, and it is likely that the actual development that will occur in the distant future could differ substantially from historical patterns or current projections. The current projections would differ if different claims development patterns were selected for each benefit type.

The expected pattern with which the aggregate claims data will be paid or will emerge over time is expressed as a percentage of ultimate losses that remain to be paid at each evaluation date for each accident year. A lower estimate of the percentage of aggregate claims dollars remaining to be paid, when applied in the actuarial methods, produces a lower dollar estimate of the unpaid loss.

The payment patterns are reviewed each year based on the observed recent and long-term patterns in our own historical data, recent and long-term patterns in industry data, and analyses of potential changes in patterns resulting from major legislative benefit changes. In particular, the changes in the payment patterns used in California were significantly influenced by analysis of the anticipated effects of the 2003 legislation relating to workers’ compensation benefits, as well as observations of our early experience as it emerged of claims experience subsequent to the enactment of that legislation. At each reserve evaluation, as more claims experience has emerged subsequent to that legislation, the post-legislative claims experience has been given increasing judgmental weight in the actuarial selection of expected future payment patterns. The actual payout pattern for the aggregate claims associated with an accident year will not be known until decades later, when all the claims are closed.

Several of the methods also involve adjusting historical data for inflation. For these methods, the inflation rates used in the analysis are judgmentally selected based on historical year-to-year movements in the cost of claims observed in the data of our insurance subsidiaries and in industry-wide data, as well as on broader inflation indices. The results of these methods would differ if different inflation rates were selected.

In projections using December 31, 2008 data, the methods that use explicit medical cost inflation assumptions included medical cost inflation assumptions ranging from 3.5% to 8.5%. Corresponding medical cost inflation assumptions in prior projections were 3.5% to 8.5% at December 31, 2007 and 3.5% to 9.0% at December 31, 2006. The selection of medical cost inflation assumptions for use in the actuarial methodologies in each of these analyses has been based on observed recent and longer-term historical medical cost inflation in our claims data and in the U.S. economy more generally. The rate of medical cost inflation as reflected in our historical medical payments per claim has averaged approximately 6.5% over the past five to ten years. The rate of medical cost inflation in the general U.S. economy, as measured by the consumer price index—medical care, has averaged approximately 4.0% over the past ten years.

Several of the actuarial methods depend on assumptions about claim frequency trends. We examine the overall movement in the frequency, or number, of claims, as well as movements in the relative frequency of claims of different severities, as measured by the proportions of claims receiving different levels of benefit payments. Judgments about the relative proportion of claims from the most recent years that ultimately will receive benefit payments at different levels are based on historical and recent levels and movements of our claim counts and form the basis for the projection of the ultimate number of claims that will receive benefits payments for each benefit type.

70


The methods employed for each segment of claims data, and the relative weight accorded to each method, vary depending on the nature of the claims segment and on the age of the claims. For claim or benefit types that pay out for many years, and for the most recent accident periods in which the claims are relatively immature, more weight is given to methods that tend to produce more stable results by including initial expected losses or claim severities that are estimated in part by reliance on other accident years adjusted for inflation and other factors to the level of the accident year being analyzed.

All of the actuarial methods described for our Nevada business are used for each of the different benefit types that are analyzed. For benefit types in which most of the loss dollars are paid out within several years of the claim occurrence (temporary total disability, permanent partial disability and vocational rehabilitation), the selection of ultimate losses for all but the most recent three to five accident years is based primarily on the results of the paid development method. This is due to the expectation that ultimate losses for the mature years will be highly correlated with the losses that have been paid to date, and the selection of estimated ultimate losses for the least mature accident years gives consideration to the results of all of the methods with the paid development method given the least consideration in the least mature (that is, most recent) accident year. For benefit types that typically involve payments extending over many years or even decades (permanent total disability, dependent benefits on fatal claims, and medical care benefits) the ultimate losses for the most recent ten or more accident years may not be highly correlated with the amounts paid to date and thus the selection of estimated ultimate losses for these recent accident years is based primarily on the frequency-severity method, the paid Bornhuetter-Ferguson method and the initial expected loss method, all of which rely in part on long-term observations regarding the average cost of claims of the particular benefit type and, in the case of medical care benefits, also allow for explicit medical cost inflation assumptions. In states other than Nevada, the paid Bornhuetter-Ferguson, reported Bornhuetter-Ferguson, paid development, and reported development methods are used for all benefit types. As our claims experience in these states is less mature, the Bornhuetter-Ferguson methods are given greater weight in the selection of estimated ultimate losses because these methods do not produce results that are as highly leveraged off our immature paid or reported claims experience.

For EICN, the analysis of unpaid loss is conducted on claims data prior to recognition of reinsurance. A separate projection is made of future reinsurance recoveries based on our reinsurance arrangements and an analysis of large claims experience, both for EICN and as reflected in industry-based benchmarks. The projections prior to recognition of reinsurance provide the basis for estimating gross-of-reinsurance unpaid losses, from which the projection of future reinsurance recoveries is subtracted to estimate net-of-reinsurance unpaid losses.

For ECIC, the analysis of unpaid loss is conducted on claims data net of reinsurance, and a separate projection is made of future reinsurance recoveries, which is added to the estimated net-of-reinsurance unpaid losses to estimate gross-of-reinsurance unpaid losses.

For EPIC and EAC, the analysis of unpaid losses is conducted for various retention levels corresponding to their historical reinsurance program structure.

For EICN and ECIC, management along with internal actuarial staff and the consulting actuary separately analyze LAE and estimate unpaid LAE. This analysis relies primarily on examining the relationship between the aggregate amount that has been spent on LAE historically and the dollar volume of claims activity for the corresponding historical calendar periods. Based on these historical relationships, and judgmental estimates of the extent to which claim management resources are focused more intensely on the initial handling of claims than on the ongoing management of claims, the consulting actuary selects a range of future LAE estimates that is a function of the projected future claim payment activity. The portion of unpaid LAE that will be recoverable from reinsurers is estimated based on the contractual reinsurance terms. For EPIC and EAC, the defense and cost containment portion of LAE is analyzed in combination with the evaluation of losses utilizing the methodologies described above (i.e. Bornuetter-Ferguson, paid development, etc.).

Based on the results of the analyses conducted, the stability of the historical data, and the characteristics of the various claims segments analyzed, the consulting actuaries select a range of estimated unpaid losses and LAE and a point estimate of unpaid losses and LAE, for presentation to internal actuarial staff and management. The selected range is intended to represent the range in which

71


it is most likely that the ultimate losses will fall. This range is narrower than the range of indications produced by the individual methods applied because it is not likely, although it is possible, that the high or low result will emerge for every state, benefit type and accident year. The actuarial point estimate of unpaid losses and LAE is based on a judgmental selection for each benefit type from within the range of results indicated by the different actuarial methods.

Management formally establishes loss reserves for financial statement purposes on a quarterly basis. In doing so, we make reference to the most current analyses of our consulting actuaries, including a review of the assumptions and the results of the various actuarial methods used by the consulting actuaries. Comprehensive studies are conducted as of June 30 and December 31 by both internal actuarial staff and the consulting actuaries and on the alternate quarters, the preceding study results are updated for actual claim payment activity during the quarter.

The consulting actuary, provides the following analyses using information provided by the Company:

 

 

 

 

claim frequency and claim severity trends indicated by the claim activity as well as any emerging claims environment or operational issues that may indicate changing trends; and

 

 

 

 

workers’ compensation industry trends as reported by industry rate bureaus, in the media, and other similar sources.

Management determines the IBNR and LAE components of our loss reserves by establishing a point in the range of the consulting actuary’s most recent analysis of unpaid losses and LAE with the selection of the point based on management’s own view of recent and future claim emergence patterns, payment patterns, and trends information obtained from internal actuarial staff pertaining to:

 

 

 

 

view of the markets in which we are operating, including economic, business, and political conditions;

 

 

 

 

the characteristics of the business we have written in recent quarters;

 

 

 

 

recent and pending recoveries from reinsurance;

 

 

 

 

our view of trends in the future costs of managing claims; and

 

 

 

 

other similar considerations as we view relevant.

The aggregate carried reserve calculated by management represents our best estimate of our outstanding unpaid losses and LAE. We believe that we should be conservative in our reserving practices due to the “long-tail” nature of workers’ compensation claims payouts, the susceptibility of those future payments to unpredictable external forces such as medical cost inflation and other economic conditions, and the actual variability of loss reserve adequacy that we have observed in the workers’ compensation insurance industry.

At December 31, 2008, management’s best estimate of unpaid losses and LAE, net of reinsurance, was $1.43 billion, which was $16.5 million above the actuarial point estimate. In establishing its best estimate at December 31, 2008, management and internal actuarial staff reviewed and considered: (a) the consulting actuaries assumptions, point estimate and range; (b) the inherent uncertainty of workers’ compensation unpaid losses and LAE liabilities; and (c) the particular uncertainties associated with: (i) the potential effects on the cost and payout pattern of claims following workers’ compensation system reforms enacted by the California legislature in late 2003 and the regulatory implementation of those reforms, the effects of which will become clear over a number of years; (ii) the uncertain cost of administering claims (LAE) in the reformed California and Florida systems; (iii) the potential for legislative and/or judicial reversal of California and Florida reforms; (iv) the rapid growth in the volume of our business in California; and (v) the degree of movement observed in EICN’s prior years’ projections of losses and LAE in Nevada following premium and market share reductions. Management did not quantify a specific loss reserve increment for each of these sources of uncertainty, but rather established an overall provision for unpaid losses and LAE that, in management’s opinion, represented a best estimate of unpaid losses and LAE at December 31, 2008 in light of the historical data, the actuarial assumptions, point estimate and range, current facts and circumstances, and the sources of uncertainty identified by management. Management’s best estimate of unpaid losses and LAE at December 31, 2008 fell within the actuarial range of estimates. The decrease in management’s best

72


estimate relative to the actuarial point estimate from December 31, 2007 to December 31, 2008 decreased losses and LAE expense incurred by $72.3 million for the year ended December 31, 2008.

At December 31, 2007, management’s best estimate of unpaid losses and LAE, net of reinsurance, was $1.22 billion, which was $88.8 million above the actuarial point estimate. In establishing its best estimate at December 31, 2007, management and internal actuarial staff reviewed and considered: (a) the consulting actuary’s assumptions, point estimate and range; (b) the inherent uncertainty of workers’ compensation unpaid losses and LAE liabilities; and (c) the particular uncertainties associated with: (i) the potential effects on the cost and payout pattern of claims following workers’ compensation system reforms enacted by the California legislature in late 2003 and the regulatory implementation of those reforms, the effects of which will become clear over a number of years; (ii) the uncertain cost of administering claims (LAE) in the reformed California system; (iii) the potential for legislative and/or judicial reversal of California reforms; (iv) the rapid growth in the volume of our business in California; (v) the limited historical experience of ECIC to use as a base for projecting future loss development; and, (vi) the degree of movement observed in EICN’s prior years’ projections of losses and LAE in Nevada following premium and market share reductions. Management did not quantify a specific loss reserve increment for each of these sources of uncertainty, but rather established an overall provision for unpaid losses and LAE that, in management’s opinion, represented a best estimate of unpaid losses and LAE at December 31, 2007 in light of the historical data, the actuarial assumptions, point estimate and range, current facts and circumstances, and the sources of uncertainty identified by management. Management’s best estimate of unpaid losses and LAE at December 31, 2007 fell within the actuarial range of estimates. The increase in management’s best estimate relative to the actuarial point estimate from December 31, 2006 to December 31, 2007 increased losses and LAE expense incurred by $2.5 million for the year ended December 31, 2007.

At December 31, 2006, management’s best estimate of unpaid losses and LAE, net of reinsurance, was $1.21 billion, which was $86.4 million above the actuarial point estimate. In establishing its best estimate at December 31, 2006, management considered: (a) the actuarial assumptions, point estimate and range; (b) the inherent uncertainty of workers’ compensation unpaid losses and LAE liabilities; and (c) the particular uncertainties associated with: (i) the potential effects on the cost and payout pattern of claims following workers’ compensation system reforms enacted by the California legislature in late 2003 and the regulatory implementation of those reforms, the effects of which will become clear over a number of years, but which our initial experience indicated were emerging favorably; (ii) the uncertain cost of administering claims (LAE) in the reformed California system; (iii) the potential for legislative and/or judicial reversal of the California reforms; (iv) the rapid growth in the volume of our business in California; (v) the limited but growing historical experience of ECIC to use as a base for projecting future loss development; and (vi) the degree of movement observed in EICN’s prior years’ projections of losses and LAE in Nevada following continued premium and market share reductions. Management did not quantify a specific loss reserve increment for each of these sources of uncertainty, but rather established an overall provision for unpaid losses and LAE that, in management’s opinion, represented a best estimate of unpaid losses and LAE at December 31, 2006 in light of the historical data, the actuarial assumptions, point estimate and range, current facts and circumstances, and the sources of uncertainty identified by management. Management’s best estimate of unpaid losses and LAE at December 31, 2006 fell within the consulting actuary’s range of estimates. The increase in management’s best estimate relative to the consulting actuary’s point estimate from December 31, 2005 to December 31, 2006 increased losses and LAE expense incurred by $2.1 million for the year ended December 31, 2006.

73


The table below provides the actuarial range of estimated liabilities for net unpaid losses and LAE and our carried reserves at the dates shown:

 

 

 

 

 

 

 

 

 

As of December 31,

 

2008

 

2007

 

2006

 

 

(in thousands)

Low end of actuarial range

 

 

$

 

1,306,506

   

 

$

 

1,034,632

   

 

$

 

1,029,524

 

Carried reserves

 

 

 

1,430,128

   

 

 

1,217,069

   

 

 

1,209,652

 

High end of actuarial range

 

 

 

1,586,777

   

 

 

1,290,274

   

 

 

1,291,356

 

Loss reserves are our estimates at a given point in time of our ultimate liability for the cost of claims and the cost of managing those claims, and are inherently uncertain. It is likely that the ultimate liability will differ from our estimates, perhaps significantly. Such estimates are not precise in that, among other things, they are based on predictions of future claim emergence and payment patterns and estimates of future trends in claim frequency and claim cost. These estimates assume that the claim emergence and payment patterns, claim inflation and claim frequency trend assumptions implicitly built into our selected loss reserve will continue into the future. Unexpected changes in claim cost inflation can occur through changes in general inflationary trends, changes in medical technology and procedures, changes in wage levels and general economic conditions and changes in legal theories of compensability of injured workers and their dependents. Furthermore, future costs can be influenced by changes in workers’ compensation statutory benefit structure, and benefit administration and delivery.

In applying actuarial techniques, judgment is required to determine the relevance of historical claim emergence and payment patterns and other historical data, external industry benchmark data, information about current economic conditions such as inflation, and recent changes in environmental conditions such as legislation as well as company operational changes in selecting parameters for those techniques under current facts and circumstances. Judgment also is required in selecting from among the loss indications produced by the several actuarial techniques that are used. From evaluation to evaluation, it often is appropriate to adjust the various methods and parameters used in the projection of losses to reflect the expected or estimated effect of such factors. Even after such adjustments, ultimate liability may exceed or be less than the revised estimates.

Estimates of ultimate losses and LAE may change from one balance sheet date to the next when actual claim payment or individual case reserve estimates between those dates differ from the expected claim activity underlying the prior loss reserve estimate, and when actual LAE expenditures differ from expected expenditure levels underlying the prior LAE reserve estimate. As actual losses and LAE expenditures occur during a calendar period, they replace the portion of prior estimates of unpaid losses and LAE that relate to that period. In addition, the parameters used in the various methods and the relative weight accorded to the results of the different actuarial methods, all of which require judgment, may change as a result of observing that the actual pattern of expenditures differs from prior expectations, as well as based on new industry wide data and benchmarks derived from that data, when available. The parameters and weights used in estimating ultimate losses may also change when external conditions—such as the statutory benefit structures or the manner in which it is being interpreted and administered, or inflation—differ from expectations underlying the prior estimate of ultimate losses, and when the effects of factors related to internal operations differ from expectations underlying the prior estimate of ultimate losses.

Each of the actuarial methods used in the analysis and estimation of unpaid losses and LAE depend in part on the selection of an expected pattern with which the aggregate claims data will be paid or will emerge over time, and the assumption that this expected pattern will prevail into the future. We select relevant patterns as part of the periodic review and projection of unpaid losses and LAE. In selecting these patterns, we examine, to the extent available, long-term and short-term historical data for our insurance subsidiaries, benchmarks based on industry data and forecasts made by industry rate bureaus regarding the effect of legislative benefit changes on such patterns. Actuarial judgment is required in selecting the patterns to apply to each segment of data being analyzed.

Management judgment is required in selecting the amount of the loss reserve to record on our consolidated financial statements. Management reviews the various actuarial projections, the assumptions underlying those projections, the range of indications produced by the actuarial methods

74


and the actual long-term and recent emergence and payment of claims. Management also considers the environmental conditions in which the insurance subsidiaries are doing business. In addition, management considers the degree of uncertainty associated with the estimates based on the degree of change that has occurred or is occurring in the environment and in operations.

The following table provides a reconciliation of the beginning and ending loss reserves on a GAAP basis:

 

 

 

 

 

 

 

 

 

December 31,

 

2008

 

2007

 

2006

 

 

(in thousands)

Unpaid losses and LAE, gross of reinsurance, at beginning of period

 

 

$

 

2,269,710

   

 

$

 

2,307,755

   

 

$

 

2,349,981

 

Less reinsurance recoverable, excluding bad debt allowance, on unpaid losses and LAE

 

 

 

1,052,641

   

 

 

1,098,103

   

 

 

1,141,500

 

 

 

 

 

 

 

 

Net unpaid losses and LAE at beginning of period

 

 

 

1,217,069

   

 

 

1,209,652

   

 

 

1,208,481

 

Losses and LAE, net of reinsurance, acquired in business combination

 

 

 

247,006

   

 

 

   

 

 

 

Losses and LAE, net of reinsurance, incurred in:

 

 

 

 

 

 

Current year

 

 

 

226,643

   

 

 

221,347

   

 

 

256,257

 

Prior years

 

 

 

(71,707

)

 

 

 

 

(60,011

)

 

 

 

 

(107,129

)

 

 

 

 

 

 

 

 

Total net losses and LAE incurred during the period

 

 

 

154,936

   

 

 

161,336

   

 

 

149,128

 

Deduct payments for losses and LAE, net of reinsurance, related to:

 

 

 

 

 

 

Current year

 

 

 

53,397

   

 

 

44,790

   

 

 

41,098

 

Prior years

 

 

 

135,486

   

 

 

109,129

   

 

 

106,859

 

 

 

 

 

 

 

 

Total net payments for losses and LAE during the period

 

 

 

188,883

   

 

 

153,919

   

 

 

147,957

 

 

 

 

 

 

 

 

Ending unpaid losses and LAE, net of reinsurance

 

 

 

1,430,128

   

 

 

1,217,069

   

 

 

1,209,652

 

Reinsurance recoverable, excluding bad debt allowance on unpaid losses and LAE

 

 

 

1,076,350

   

 

 

1,052,641

   

 

 

1,098,103

 

 

 

 

 

 

 

 

Unpaid losses and LAE, gross of reinsurance, at end of period

 

 

$

 

2,506,478

   

 

$

 

2,269,710

   

 

$

 

2,307,755

 

 

 

 

 

 

 

 

Estimates of incurred losses and LAE attributable to insured events of prior years decreased due to continued favorable development in such prior accident years (actual losses and LAE paid and current projections of unpaid losses and LAE were less than we originally anticipated). The reduction in the liability for unpaid losses and LAE was $71.7 million, $60.0 million and $107.1 million for the years ended December 31, 2008, 2007 and 2006, respectively.

The major sources of this favorable development include: (a) actual paid losses, which have been less than expected and (b) the impact of new information on selected patterns of claims emergence and claim payment used in the projection of future loss payment.

In California, in particular, where our operations began on July 1, 2002, the actuaries’ and management’s initial expectations of the ultimate level of losses and patterns of loss emergence and loss payment necessarily were based on benchmarks derived from analyses of historical insurance industry data in California. Prior to July 1, 2002, no historical data from our California insurance subsidiary existed and, although some historical data was available for the prior years for some of the market segments we entered in California, that data was limited as to the number of loss reserve evaluation points available. The industry-based benchmarks were adjusted judgmentally for the anticipated impact of significant environmental changes, specifically the enactment of major changes to the statutory workers’ compensation benefit structure and the manner in which claims are administered and adjudicated in California. The actual emergence and payment of claims by our California insurance subsidiary has been more favorable than those initial expectations, due at least in part, we believe, to the impact of enactment of the major changes in the California environment. Other insurance companies writing California workers’ compensation insurance have also experienced emergence and payment of claims more favorable than anticipated. At each evaluation date, the projected claim activity underlying the prior loss reserves has been replaced by the actual claim activity, and the expectation of future emergence and payment of California claims underlying the actuarial projections

75


has been reevaluated periodically based both on our insurance subsidiaries’ emerging experience and on updating the benchmarks that are derived from observing and analyzing the insurance industry data for California workers’ compensation.

In Nevada, we have compiled a lengthy history of workers’ compensation claims payment patterns based on the business of the Fund and EICN, but the emergence and payment of claims in recent years has been more favorable than in the long-term history in Nevada with the Fund. The expected patterns of claim payments and emergence used in the projection of our ultimate claim payments are based on both long-term and short-term historical data. In recent evaluations, claim patterns have continued to emerge in a manner consistent with short-term historical data. Consequently, our selection of claim projection patterns has relied more heavily on patterns observed in recent years. Also, at each evaluation date, the projected claim payments underlying the prior loss reserves were replaced by the actual claim payment activity that occurred during the calendar year.

The estimate of the future cost of handling claims, or LAE, depends primarily on examining the relationship between the aggregate amount that has been spent on LAE historically, as compared with the dollar volume of claims activity for the corresponding historical periods. For our insurance subsidiaries’ business in Nevada, as a result of operational improvements, including reductions in staff count to align with the current and anticipated volume of business in the state, our expenditures on LAE in recent years have been lower than historical levels. As these operational improvements impacted the actual emerging LAE expenditures, the estimates of future LAE have reduced. For our insurance subsidiaries’ operations in California, initial expectations of LAE when operations commenced in California were based on the assumptions used by the Company in pricing the California business, and on some limited historical data for the market segments the Company was entering. As the Company’s operations in California have matured, and as data relating to the Company’s and industry claim handling expenses reflective of the new workers’ compensation benefit environment in California have become available, the expectations of LAE underlying the projection of future LAE have been adjusted to reflect that actual costs of administering claims relative to the cost of losses themselves have been greater than initial expectations. Although our revised LAE expectations resulted in an increase in the projected future cost of administering California claims relative to losses at December 31, 2008, 2007 and 2006, given the significant decrease in the estimated projected costs of losses in California, the overall impact has been a decrease in LAE reserves.

We review our loss reserves each quarter and, as mentioned earlier, our consulting actuaries assist our review by performing a comprehensive actuarial analysis and projection of unpaid losses and LAE twice each year. We may adjust our reserves based on the results of our reviews and these adjustments could be significant. If we change our estimates, these changes are reflected in our results of operations during the period in which they are made. Our overall actual claims and LAE experience and emergence in recent years has been more favorable than anticipated in prior evaluations. Our insurance subsidiaries have been operating in a period of dramatically changing environmental conditions in our major markets, entry into new markets, and operational changes. During periods characterized by such changes, at each evaluation, the actuaries and management must make judgments as to the relative weight to accord to long- term historical and recent company data, external data, evaluations of environmental changes, and other factors in selecting the methods to use in projecting ultimate losses and LAE, the parameters to incorporate in those methods, and the relative weights to accord to the different projection indications. Since the loss reserves are providing for claim payments that will emerge over many years, if management’s projections and loss reserves were established in a manner that reacted quickly to each new emerging trend in the data or in the environment, there would be a high likelihood that future adjustments, perhaps significant in magnitude, would be required to correct for trends that turned out not to be persistent. At each balance sheet evaluation, some losses and LAE projection methods have produced indications above the loss reserve selected by management, and some losses and LAE projection methods have produced indications lower than the loss reserve selected by management. At each evaluation, management has given weight to new data, recent indications, and evaluations of environmental conditions and changes that implicitly reflect management’s expectation as to the degree to which the future will resemble the most recent information and most recent changes, as compared with long-term claim payment, claim emergence, and claim cost inflation patterns. As patterns and trends recur consistently over a period of quarters or years,

76


management gives greater implicit weight to these recent patterns and trends in developing our future expectations. In our view, in establishing loss reserves at each historical balance sheet date, we have used prudent judgment in balancing long-term data and recent information.

It is likely that ultimate losses and LAE will differ from the loss reserves recorded in our December 31, 2008 balance sheet. Actual losses and LAE payments could be greater or less than our projections, perhaps significantly. The following paragraphs discuss several potential sources of such deviations, and illustrate their potential magnitudes.

In recent years, emerging claims costs and claim emergence and payment patterns have improved dramatically. The largest driver of this improvement has been California reform. As we observe continuing improvement in development, we have given significant weight to this emerging trend in projecting and selecting estimated ultimate losses and LAE. The amount of weight to allocate between the emerging trend and historical benchmark patterns is judgmental. Recent data points from our business in California, as well as from insurance industry experience for California workers’ compensation, indicate emergence patterns even more favorable than those implicitly underlying our loss reserves. If future emergence matches those more favorable patterns, our current loss reserves could develop favorably over time. If future claims emergence more closely resembles long-term historical industry patterns, then our current loss reserves could develop unfavorably over time. In Nevada, we have seen a significant improvement in claims emergence and claims payment patterns in recent years, and have given these improved patterns significant weight in establishing loss reserves for our Nevada business. If future emergence in Nevada more closely resembles long-term historical patterns of the predecessor Fund, then our current loss reserves could develop unfavorably over time.

For loss adjustment expense, particularly in Nevada, our projections assume a long-term cost of managing claims that is greater than the recent levels of LAE produced by our insurance subsidiaries’ current operating model, but is less than the levels of LAE expended in past years by our insurance subsidiaries and by the Fund. Future changes in claims operations, while not currently planned or contemplated, could result in future actual LAE and future projections of LAE that may differ from current estimates.

Some of the actuarial projection methods also rely on a selection of claim cost inflation rates. If actual claim cost inflation differs from expectations underlying prior selections, or as environmental conditions in the states in which we do business or in the economy generally change, we will reevaluate and may change the selected claim cost inflation rate in future analyses. Such a change in assumptions would cause the results of some of the actuarial methods to change from one evaluation to the next. The ultimate cost of our claims will depend in part on actual inflation rates in future years, which may differ from the inflation expectations implicit in our loss reserves.

More than 51% of our claims payments during the three years ended December 31, 2008 related to medical care for injured workers. The utilization and cost of medical services in the future is a significant source of uncertainty in the establishment of loss reserves for workers’ compensation. We are not able to state the rate of medical cost inflation that is assumed in our loss reserves because our loss reserves are established based on reviewing the results of actuarial methods that do not contain explicit medical claim cost inflation rates, as well as methods that do. However, because medical care will be provided over many years, and in some cases decades, to the injured workers who have open claims, the pace of medical claim cost inflation has a significant impact on our ultimate claim payments. For example, if the rate of medical claim cost inflation increases by 1% above the inflation rate that is implicitly included in the loss reserves at December 31, 2008, we estimate that future medical costs over the lifetime of the current claims would increase by approximately $78.5 million on a net-of-reinsurance basis.

Our reserve estimates reflect expected increases in the costs of contested claims and assume we will not be subject to losses from significant new legal liability theories. While it is not possible to predict the impact of changes in this environment, if expanded legal theories of liability emerge, our IBNR claims may differ substantially from our IBNR reserves. Our reserve estimates assume that there will not be significant future changes in the regulatory and legislative environment. The impact of potential changes in the regulatory or legislative environment is difficult to quantify in the absence of specific,

77


significant new regulation or legislation. In the event of significant new regulation or legislation, we will attempt to quantify its impact on our business.

The range of potential variation of actual ultimate losses and LAE from our current reserve for unpaid losses and LAE is difficult to estimate because of the significant environmental changes in our markets, particularly California and Florida, and because our insurance subsidiaries do not have a lengthy operating history in our markets outside Nevada and Florida.

The range of estimates of unpaid losses and LAE produced by the actuarial reviews of the impact of medical cost inflation provide some indication of the potential variability of future losses and LAE payments. If the actual unpaid losses and LAE were at the high or the low end of the actuarial range, the impact on our financial results would be as follows:

 

 

 

 

 

 

 

 

 

December 31,

 

2008

 

2007

 

2006

 

 

(in thousands)

Increase (decrease) in reserves

 

 

 

 

 

 

At low end of range

 

 

$

 

(123,622

)

 

 

 

$

 

(182,436

)

 

 

 

$

 

(180,128

)

 

At high end of range

 

 

 

156,649

   

 

 

73,206

   

 

 

81,704

 

Increase (decrease) in equity and net income, net of income tax effect

 

 

 

 

 

 

At low end of range

 

 

$

 

43,268

   

 

$

 

118,583

   

 

$

 

117,083

 

At high end of range

 

 

 

(54,827

)

 

 

 

 

(47,584

)

 

 

 

 

(53,108

)

 

However, the actuarial range represents an estimated range in which it is most likely that the ultimate losses and LAE will fall, based on the actuarial review of the results of the various methodologies and parameters used by the actuaries in the projection of losses and LAE. Each different actuarial method may produce a different indication of unpaid losses and LAE because each method relies in different ways on assumptions about the future. For example, the loss development methods are based on an assumption that the selected pattern of emergence or payout of claims will recur in the future. The frequency- severity method is based on an assumption that the most recent year’s ultimate average cost per claim can be estimated by inflation-adjusting other accident years’ average cost per claim and by extrapolating based on historical patterns the per-claim cost observed to date for the accident year. The initial expected loss method assumes that the ultimate losses can be estimated based on the payroll of workers insured by us and a benchmark loss cost per payroll or as a percentage of premium. The Bornhuetter-Ferguson methods rely on a combination of these assumptions. Actual losses are affected by a more complex combination of forces and dynamics than any one model or methodology can represent, and each actuarial methodology is an approximation of these complex forces and dynamics. Each different actuarial methodology may produce different indications of unpaid losses and LAE. None of the methods are designed or intended to produce an indication that is systematically higher or lower than the other methods. Nonetheless, at any given evaluation date, some of the actuarial projection methods produce indications outside this range, and the selection of reasonable alternative methods or reasonable alternative parameters in the actuarial projection process would produce an even wider range of potential outcomes, both above and below the range shown. Accordingly, we believe that the range of potential outcomes is considerably wider than the actuarially estimated range of the most likely outcomes. The magnitude of adjustments to prior years’ reserves for unpaid losses and LAE reserves that we have made at December 31, 2008, 2007 and 2006, decreases of $71.7 million, $60.0 million, and $107.1 million respectively, also illustrate that changes in estimates of unpaid losses and LAE can be significant from year to year. We do not have a basis for anticipating that actual future payments of losses and LAE are more likely to be either greater than or less than the reserve for unpaid losses and LAE on our current balance sheet.

Reinsurance Recoverables

Reinsurance recoverables represent: (a) amounts currently due from reinsurers on paid losses and LAE; (b) amounts recoverable from reinsurers on case basis estimates of reported losses; and (c) amounts recoverable from reinsurers on actuarial estimates of IBNR for losses and LAE. These recoverables, by necessity, are based upon our current estimates of the underlying losses and LAE, and are reported on our consolidated balance sheet separately as assets, as reinsurance does not relieve us

78


of our legal liability to policyholders. We bear credit risk with respect to the reinsurers, which can be significant considering that some of the unpaid losses and LAE remain outstanding for an extended period of time. Reinsurers might refuse or fail to pay losses that we cede to them, or they might delay payment. We are required to pay losses even if a reinsurer refuses or fails to meet its obligations under the applicable reinsurance agreement. We continually monitor the financial condition and rating agency ratings of our reinsurers. We require reinsurers that are not admitted reinsurers in California, Florida or Nevada to collateralize their share of the unearned premiums and unpaid loss reserves in order that our insurance subsidiaries receive credit for reinsurance on their statutory financial statements. Since our inception in 2000, no material amounts due from reinsurers have been written off as uncollectible and, based on this experience, we believe that amounts currently reflected in our consolidated financial statements will similarly require no material prospective adjustment.

Under the LPT Agreement, the Fund initially ceded $1.525 billion in liabilities for the incurred but unpaid losses and LAE related to claims incurred prior to July 1, 1995, for consideration of $775 million in cash. As of December 31, 2008, the estimated remaining liabilities subject to the LPT Agreement were approximately $929.6 million. Losses and LAE paid with respect to the LPT Agreement totaled approximately $447.9 million at December 31, 2008.

We account for the LPT Agreement in accordance with FAS 113, Accounting and Reporting for Reinsurance of Short-Term and Long-Duration Contracts, and as retroactive reinsurance. Upon entry into the LPT Agreement, a deferred reinsurance gain was recorded as a liability in our consolidated balance sheet. This gain is being amortized using the recovery method, whereby the amortization is determined by the proportion of actual reinsurance recoveries to total estimated recoveries, and the amortization is reflected in losses and LAE. In addition, we are entitled to receive a contingent commission under the LPT Agreement. The contingent commission is estimated based on both actual results to date and projections of expected ultimate losses under the LPT Agreement. Increases and decreases in the estimated contingent commission are reflected in our commission expense in the year that the estimate is revised.

Recognition of Premium Revenue

All premium revenue is recognized over the period of the contract in proportion to the amount of insurance protection provided. The insurance premiums we charge are billed to our policyholders either annually or under various installment plans based on the estimated annual premium under the policy terms. At the end of the policy term, payroll-based premium audits are performed on substantially all policyholder accounts to determine net premiums earned for the policy year. Earned but unbilled premiums include estimated future audit premiums. Estimates of future audit premiums are based on our historical experience. These estimates are subject to changes in policyholders’ payrolls, economic conditions and seasonality. The estimates are continually reviewed and adjusted as necessary as experience develops or new information becomes known. Any such adjustments are included in current operations. Since our inception in 2000, there have been no material adjustments of our accrual for earned but unbilled premium and, based on this experience, and, although considerable variability is inherent in such estimates, we believe that amounts currently reflected in our consolidated financial statements will similarly require no material prospective adjustment.

Accounting for Income Taxes

We account for income taxes in accordance with SFAS No. 109, Accounting for Income Taxes, recognizing the current and deferred tax consequences of all transactions that have been recognized in the financial statements using the provisions of the enacted tax laws. Deferred tax assets and liabilities are determined based on differences between the financial reporting and tax bases of assets and liabilities and are measured using the enacted tax rates and laws that will be in effect when the differences are expected to reverse. The effect on deferred tax assets and liabilities resulting from a tax rate change impacts our net income or loss in the reporting period that includes the enactment date of the tax rate change. Our income tax returns are subject to audit by the Internal Revenue Service and various state tax authorities. Significant disputes may arise with these tax authorities involving issues of the timing and amount of deductions and allocations of income among various tax jurisdictions because of differing interpretations of tax laws and regulations. We periodically evaluate our exposures

79


associated with tax filing positions. Although we believe our positions comply with applicable laws, we record liabilities based upon estimates of the ultimate outcomes of these matters.

In assessing whether our deferred tax assets will be realized, management considers whether it is more likely than not that we will generate future taxable income during the periods in which those temporary differences become deductible. Management considers the scheduled reversal of deferred tax liabilities, tax planning strategies and projected future taxable income in making this assessment. If necessary, we establish a valuation allowance to reduce the deferred tax assets to the amounts that are more likely than not to be realized.

We adopted the provisions of FASB Interpretation No. 48, Accounting for Uncertainty in Income Taxes, an Interpretation of FASB Statement No. 109, (“FIN 48”), effective January 1, 2007. As of December 31, 2006, the Company had recorded, as a liability for tax contingencies, $14.9 million (including interest of $1.6 million). As a result, the adoption of FIN 48 did not result in any change in the amount of the unrecognized tax benefit. Further, we elected to continue to record both interest and penalties related to any unrecognized tax benefits as a component of income tax expense.

During 2007, we reversed $5.8 million of the liability including $0.7 million in interest as certain statutory periods expired. In 2008 the remaining balance was reversed ($10.6 million including $2.3 million in interest) and the liability was eliminated. In 2006, when the liability was initially recorded, the result was an increase in tax expense and our effective tax rate. In 2007 and 2008, as the liability was reversed, the impact was a decrease in tax expense and our effective tax rate.

Valuation of Investments

Our investments in fixed maturity and equity securities are classified as available-for-sale and are reported at fair value with unre