Summer 2006 by jizhen1947


          Is PML the Answer to the
         Hurricane Insurance Crunch?
                                                                                                         Daniel B. Rubock

                         With the 2006 hurricane season              be a powerful and useful tool, and may even presently have
                         already two-thirds gone, and weeks          a circumscribed role in triangulating insurance issues
                         past its September 10 climatological        relating to individual properties — but they are not a
                         peak, no hurricanes thus far have           panacea for this year’s windstorm insurance crunch.
                         reached American shores. Yet U.S.           Because of the factors detailed in this report, Moody’s
                         commercial real estate lenders and          believes that at this point the commercial real estate
                         borrowers in the last few months are        finance industry should proceed prudently before time-
         Rubock          confronting a new insurance crunch:         tested underwriting standards are altered or abandoned.
                         this time, for properties in states up
    and down the Eastern seaboard and the Gulf Coast,                THE SITUATION PRE-KATRINA
    windstorm insurance is hard to obtain and its premiums can          Before the extraordinary hurricane season of 2004, when
    be unusually taxing. The reasons for this sudden spike in        for the first time since 1886 five hurricanes hit the shores
    price and dip in supply are complex, but can be traced to        of the United States, windstorm insurance generally was
    fluctuations in the Atlantic climate, the changes that           available and affordable. Though there were exceptions in
    scientists consequently have made to models that reflect         certain areas of the Gulf Coast and the Southeast,1
    that meteorological reality, and then to the resulting           particularly Florida and coastal areas, these were the kind
    business behavior of the insurance and reinsurance               of mild exceptions that proved the rule. Hurricane Andrew
    companies that base their pricing and supply on these            in 1992 caused great damage but also had triggered the
    models. This suggests that the insurance difficulties CRE        toughening of building codes and the creation of state-
    (commercial real estate) lenders are finding today may not       backed windstorm insurance programs in Florida and some
    be merely temporary, and that underwriting assumptions           Gulf Coast states. These two developments, along with a
    for insurance premiums and the confidence of obtaining           mostly competitive (i.e., a “soft”) insurance market,
    windstorm insurance easily may need to be fine-tuned.            permitted purchasers of windstorm insurance to operate on
        Because Moody’s expects properties to be insured to full
    replacement value, movement away from such full coverage            Insurance policies for properties not located in areas
    could have credit and subordination level implications.          prone to windstorm damage usually said nothing in
    Such adjustments to ratings, ranging from little or              particular about windstorms; standard coverage was
    none to significant, will vary depending on many factors,        provided with little or no deviation. Properties located in
    such as the size and diversity of the pool and the               hurricane-sensitive areas had the windstorm risk specifically
    characteristics of the individual loans. While some creative     carved out; but not to worry: windstorm coverage
    –and limited–alternatives to insurance may be introduced,        endorsements were readily available, at a cost, subject to
    they should meet the usual capital market standards. Loan        somewhat larger deductibles than for other risks. Though
    document language relating to windstorm insurance should         properties closer to the coast, built with wood-frames, or of
    remain as firm going forward as it has been traditionally;       older design or vintage, may have had higher premiums
    introduction of “commercial availability” standards or their     and/or deductibles (typically 2% or 3%) than, say, a new
    ilk into new loan agreements may have rating repercussions.      inland property built of brick to post-Hurricane Andrew
    Servicers, however, should be given greater flexibility at the   building codes, and while owners may have griped a bit
    pool level to examine each loan and its needs in context,        about the price of the endorsements, the windstorm market
    and make modifications as necessary and proper, subject to       was in relatively benign balance.
    the servicing standard.
                                                                        Then came the hurricane season of 2004. Instead of the
       Within the last few months, a groundswell of interest         historic average of 1.8 hurricanes hitting the U.S. shores,
    has arisen in the possible application of probable maximum       five storms collided with the coast. The total insured
    loss (PML) approaches to addressing the windstorm                damage was $24 billion. Insurance companies were
    insurance needs for individual properties. Moody’s               stressed, both by the number of claims and by the
    believes that with proper nurturance, PMLs may grow to           temporary lack of personnel to handle these claims, but

    54 CMBS WORLD®
Is PML the Answer to the Hurricane Insurance Crunch?   (cont.)


   CATEGORY       WINDS             EFFECTS
                                    COASTAL ROAD FLOODING AND MINOR PIER DAMAGE

                                    UNPROTECTED ANCHORAGES BREAK MOORINGS.

                                    OR MORE.


                                    SHORELINE MAY BE REQUIRED.

prudent underwriting, decent market performance, and                              totaled over $58 billion. Still, the insurance industry as a
the adoption of hurricane modeling following Hurricane                            whole was financially strong and able to withstand the
Andrew had prepared them financially for even this rare                           punch to its surplus and reserves. The insurance industry
confluence of events.                                                             reported after-tax statutory net income of $43 billion in
                                                                                  2005, an increase of 8.5% over the 2004 figure of $39.6
    Competition remained robust among insurers in                                 billion.
Florida and elsewhere. Premiums rose materially for
properties that were actually damaged, but only modestly                             The National Oceanic and Atmospheric Administration’s
for those left unscathed, and even less or not at all for                         (NOAA) most recent prediction 3–which was reduced from
properties in areas not directly affected. Some upward                            the beginning of the 2006 hurricane season–was that 12 to
pressure was put on deductibles, but they generally                               15 named storms were to form, with seven to nine
remained in the 2% to 3% range. State regulators were on                          becoming hurricanes and three to four of those becoming
guard to stem precipitous increases in rates for personal                         major storms (i.e., Category 3 to Category 5 on the Saffir-
lines. Because of the breadth of the damage, the                                  Simpson Index above). So far, with two-thirds of the
adjustment process was slow-going, but eventually things                          hurricane season over, nine named storms have formed to
got sorted out. In a prelude to Katrina-related issues,                           date, with five becoming hurricanes; none have hit the U.S.
disputes broke out between insureds and insurers over                             shores. According to the NOAA, “September has as many
wind-driven versus storm surge (flooding) damage. All-in-                         major hurricane landfalls as October and November
all, however, most industry observers did not believe that                        combined.”
U.S. commercial real estate generally would be ill-
prepared or underinsured for the next year’s hurricane                            THE CURRENT CRUNCH
season.                                                                              Thirty days after the new 2006 hurricane season rolled
                                                                                  over on June 1, so did many reinsurance treaties of
   The 2005 hurricane season followed with a record 26                            commercial real estate property insurers. The windstorm
named storms2 (the long-term average is 8.5 named                                 insurance market began contracting slightly after January
storms, 5.2 of which become hurricanes; of those, 1.8                             1 (30 days after the official end of the 2005 hurricane
hurricanes per year on average hit U.S. shores).                                  season), accelerated its narrowing after April 1, and
Hurricanes Dennis, Katrina, Rita, and Wilma reached                               reached sclerotic constriction after July 1, dates that are
American shores and caused unprecedented, tragic losses                           the traditional quarterly renewal anniversary for primary
in New Orleans and the Gulf Coast; insured damage                                 carriers’ reinsurance treaties. Why did that happen?

                                                                                                                                        WINTER 2007           55
    Is PML the Answer to the Hurricane Insurance Crunch?    (cont.)

                                                                           down by nearly 50% to about $1 trillion5. Carriers writing
                                                                           large risks pulled out, severely reduced writings, or
           TOP 10 HURRICANES AND ESTIMATED                                 imposed low sublimits on windstorm coverage.6
                    INSURED LOSS
                              (ADJUSTED TO 2005 $$)                           In Tier 1 areas, almost across the board, it is not possible
                                                                           to replicate in scope and price the same coverage from
            YEAR                           EVENT           INSURED LOSS    2005. Costs have increased along a spectrum starting at
            2005                           KATRINA         $40.6 BILLION   40% to 50% on the low end, ranging up to 400% or more
                                                                           on the high end. Deductibles for windstorm are at least 5%
            1992                           ANDREW          $21.6 BILLION
                                                                           of TIV (total insured value), if not frequently 7% to even
            2005                           WILMA           $10.3 BILLION   10%. Whereas it was possible, though expensive, to “buy
            2004                           CHARLEY         $7.7 BILLION    down” the deductible, now it is well-nigh impossible.
            2004                           IVAN            $7.4 BILLION    Particularly hard hit, according to a leading CRE mortgage
                                                                           servicer, are five counties in Florida (Miami-Dade,
            1989                           HUGO            $6.6 BILLION    Broward, Hillsborough, Pinnelas, and Palm Beach) and
            2005                           RITA            $5.0 BILLION    Houston, TX.7
            2004                           FRANCES         $4.8 BILLION
                                                                              This dichotomized market is actually highly
            2004                           JEANNE          $3.8 BILLION
                                                                           fractionalized. Whereas owners of only one or two
            1998                           GEORGES         $3.5 BILLION    properties have an uphill battle obtaining windstorm
            Source: Insurance Services Office                              coverage, blanket policies that cover anywhere from a
                                                                           handful of properties to hundreds of locations make it easier
                                                                           to obtain windstorm coverage, because the risk can be
                                                                           spread out among a pool: the benefits of diversity. Those
       Leading catastrophic modeling firms supplying the                   who seek renewals are better situated than those entering
    hurricane-loss models that help guide reinsurance                      the market anew. Owners of properties that are older or are
    companies’ pricing and capacity decisions increased their              not constructed to post-Andrew building standards are
    aggregate U.S. expected loss figures for insured windstorm             being pressured much more than those who own newer or
    losses significantly by assuming a greater frequency of                better constructed buildings. Particularly handicapped are
    hurricanes hitting the U.S. shores, and by increasing                  those properties that had damage in the 2004 or 2005
    and refining the input factors used to calculate the severity          hurricane seasons. As one gets closer to the coast, premiums
    of storms that hit. These key assumptions rippled through              go up and availability of coverage goes down, especially for
    the insurance industry. Reinsurance companies–the                      properties within a few thousand feet of the ocean.
    “wholesaler” backstops of the “retail” level primary
    insurance carriers from whom CRE borrowers obtain their                   The sharp increase in premiums has put mild to severe
    property insurance–were forced to raise their reinsurance              stress on the cashflow of many properties. The level of
    rates, and/or cut back on the amount of reinsurance they               stress runs the gamut, depending on where that property
    could offer. This in turn, when combined with the losses               places on the multivariate grid that affects premium pricing
    carriers experienced with Hurricane Katrina last year,                 (vintage, distance from the coast, renewal, whether part of
    compelled primary carriers to cut back on what coverage                a portfolio, etc.) and how highly leveraged the property’s
    they could or would offer insureds. These factors also                 owner is. Servicers have reported some borrowers coming
    induced primary carriers to charge high prices for                     in for relief in the form of insurance waivers, or for
    properties in Tier 1 windstorm areas (those markets                    financing of premiums (which typically have to be paid in
    considered at greatest risk of hurricane damage).                      a lump sum), but they have not reported a massive
                                                                           overflow of pleas for lender mercy—at least not yet,
       2006 so far has been a somewhat “soft” insurance                    because policy renewals roll through the year, and the
    market in non-catastrophe-prone areas. Reportedly                      crunch only started in earnest in April. Indeed, there have
    premiums for all commercial property lines are up just 2%              been some tentative reports that in the last month or so, the
    from the same period last year, after having declined 7%               market has begun to improve somewhat, with increased
    from the same period the year before.4 Brokers for property            reinsurance capacity. A big test will come in January, when
    owners in Indiana, for instance, have a relatively easy time           a significant number of reinsurance treaties expire and are
    selecting insurance programs and carriers (notwithstanding             up for renegotiation.
    tornado threat). But the Southeast and the Gulf Coast are
    on the other side of this market dichotomy: for catastrophic              Some have speculated that the so far unexpectedly mild
    coverage, it is a “hard” market indeed. Prior to Katrina,              2006 hurricane season, if it continues, may help and open
    total industry windstorm insurance capacity was $2 trillion;           up capacity and modulate prices next year. Insurance
    as of July 2006, existing windstorm insurance capacity was             availability and pricing run in high and wide amplitude

    56 CMBS WORLD®
Is PML the Answer to the Hurricane Insurance Crunch?   (cont.)

cycles: capacity shrinks and prices rise, eventually                For portions of particularly large deductibles, or small
prompting additional capital to enter the insurance market,      slices of upper layers of insurance; stable, deep-
allowing additional capacity to form and prices to then          pocketed sponsors of borrowers may choose to self-
gradually descend. But because many experts believe that         insure the gap between what insurance is obtainable
a secular change in the frequency and severity of                and what is unobtainable, or what is obtainable at
hurricanes has arrived–an effect of a multi-decade cycle of      reasonable rates and what is obtainable at rates
fluctuations in tropical sea surface temperature8– and           perceived to be unreasonable. But self-insurance does
because the underlying assumptions of catastrophe models         not mean no insurance. Self-insurance is a term of art. To
that now govern how reinsurance and primary carrier              Moody’s, it means (1) a structured program in place
companies price their product–and yes, also contribute to        (perhaps, in the most sophisticated form, with a
how rating agencies rate these companies– have been              “captive” domiciled in; for instance, Vermont); (2)
substantially modified, we believe the recent shift in           segregated funds, not commingled with other sponsor
pricing and capacity for windstorm coverage will not be a        funds, with an identified administrator; (3) actuarially
one-year wonder. Underwriting assumptions for insurance          determined reserves/surplus; 9 and (4) a pre-defined
premiums of Tier 1 area properties therefore may need to         claims/payment procedure.
be permanently upwardly adjusted. More importantly, the
expectations of yesteryear, of insurance covering the risks         Others may seek to fill the gap by offering letters of
we expect to be covered fully, may not return for a while.       credit (LOCs), or by increasing reserve funds. These are
                                                                 acceptable methods, provided the usual capital markets
MOODY’S TREATMENT OF LOANS                WITH INADEQUATE        standards for LOCs and reserve funds are honored.10
   Commercial real estate is a tangible asset that generates         Venturing away from these solid, lender-friendly
cashflow and has residual value. If this tangible asset is       solutions into more borrower-friendly (and more risk-
damaged, both its ability to generate funds and its residual     friendly) approaches, is loan document language that bears
value are impaired. Property insurance substitutes for           striking resemblance to that developed in post-9/11–
that asset’s ability to generate cashflow and supplies the       pre-TRIA loans, or mirrors that of the earthquake
money either to rebuild that asset or to pay down debt           insurance arena: injecting “commercial reasonableness” or
encumbering the property. Moody’s expects assets to be           “commercial availability” standards into the loan
insured to the full replacement cost, and for large loans        document brew. (The most risk-friendly approach is
and single asset deals to have rent insurance for an             putting a predetermined cap on a windstorm insurance
“extended indemnity period.” Movement away from such             endorsement premium, or worse, putting a cap on
full coverage could have credit and subordination level          the entire property insurance package premium.11 These
implications.                                                    slippery-slope arrangements carry a significant menace to
                                                                 credit-neutrality.) Commercial-reasonableness and
   Loan Level Issues                                             commercial availability standards grafted on from difficult
   Loan originators are coming under intense pressure            earthquake markets carry other, but no less dangerous risks
from borrowers owning properties in the Southeast and            for the lender and the CMBS investor. If the market is
Gulf States to be “flexible” and to re-choreograph the           difficult, i.e., things get “commercially unreasonable,” the
borrower-lender tango seamlessly performed in loan               borrower will be let off the hook for insurance, and the
negotiations for decades. Insurance topics rarely came up        lender is left carrying a risk that normally is the insurer’s—
as major negotiation issues before 2001; they were               who declined to take that risk because it was too great or
relegated to the esoterica that experts handled in the           was priced too dearly.
background. Now front and center for a wide swath of
properties, borrowers and lenders must weigh the risks to           Any such approach necessarily lessens the protection
each and to the other in advocating a position. In contrast      that lenders assume they have when they give money in
to the terrorism insurance difficulties post-9/11 and pre-       exchange for a mortgage on tangible collateral: the
TRIA, borrowers are reacting a bit differently to the            certitude that an insurance policy will always substitute for
windstorm insurance crunch: while after 9/11, they may not       real estate if destroyed. Lenders should not be forced anew
typically have seen their property as a possible terrorist       to calculate the probability that in a hard insurance market,
target and therefore sometimes vehemently resisted the           its property insurance will take a quantum leap and
lender’s entreaties for proper terrorism insurance coverage,     dissolve into a shadow of its former self. It may be best to
borrowers cannot deny the possibility of windstorm               insist on what lenders have always insisted on: get proper
damage if they are in hurricane alley. Both the lender and       insurance, or pay off the loan. If the loan documents do not
the borrower agree windstorm insurance is needed and             give the borrower that stark choice for windstorm insurance
they both want to protect their investments. The question        on a property located in hurricane alley, then the risk of
to be solved jointly then is, “How much insurance is             that lender going insurance-bare will have to be factored
needed, and how much is reasonable to spend?”                    in to the rating of that loan at origination.

                                                                                                             WINTER 2007    57
    Is PML the Answer to the Hurricane Insurance Crunch?   (cont.)

       Originators also need to closely examine blanket policies     flexibility is a good thing, when structured the right way. No
    to determine asset concentration in hurricane-prone areas.       longer do all loans without completely conforming insurance
    Sometimes the maximum coverage under blankets is not             have to be transferred into special servicing (with the
    equal to the TIV of all the properties covered but is a          consequent incurrence of a special servicing fee). Language
    reasonable portion of it. However, if there is a high            that once focused exclusively on giving flexibility to the
    concentration of collateral within a hurricane zone, because     servicer vis-à-vis terrorism is morphing (with Moody’s
    damage from one named storm to many properties would be          blessing) into language that allows a bit more give for
    deemed a single “occurrence,” there could be a chance of         windstorm insurance problems—and sometimes for other
    blowing through the coverage ceiling. Therefore, as part of      difficult-to-insure risks. Master servicer consultation with
    due diligence (and proper disclosure to rating agencies and      the special servicer and the controlling class representative
    investors), lenders should get a schedule with agreed values     (CCR) is required, and measured dispensation can be
    of all properties covered under blankets, detailing how many     granted when the special servicer and/or the CCR agree,
    are within a certain radius of the others and how many are       subject to a “servicing standard” override.
    in Tier 1 hurricane zones.
                                                                         The standard for what many PSAs call an “acceptable
       Pool Level Issues                                             insurance default” that triggers the servicer’s right to reason
       Diminished windstorm insurance coverage in a fairly           is phrased this way:
    homogenous conduit pool, without an undue concentration
    of assets in Tier 1 hurricane areas (i.e not more than a small            “The borrower’s failure to obtain insurance,
    percentage of loans with modestly inadequate coverage, and             if the Servicer has determined that such
    no large individual loans with more than modest coverage               insurance is not available at commercially
    problems) should have little or no credit impact. Chunkier             reasonable rates and the subject hazards are not
    pools, with one or more large loans with windstorm                     commonly insured against at the time by
    insurance issues or a concentration of smaller loans in Tier 1         prudent lenders for real properties similar to the
    areas with windstorm issues, would be subject to greater               Mortgaged Property and located in and around
    stress and therefore demand greater adjustment to                      the region in which the subject Mortgaged
    subordination levels. The adjustment would be of larger                Property is located.”
    magnitude at the Aaa level, tapering slowly down the capital
    stack. The velocity of narrowing would depend on a                  This gives the servicer a principle to apply that not only
    multiplicity of factors, importantly among them, the size of     considers the cost of the insurance, but whether prudent
    the pool versus the number and size of the affected loans,       lenders have abandoned all hope of requiring borrowers to
    the leverage of the subject loans, the mitigants supplied (for   obtain such insurance, notwithstanding the cost. So if the
    instance, LOCs, reserves, insurance gap guarantees from          necessary insurance is very expensive, but still prudent
    rated sponsors),12 the modesty or severity of the windstorm      lenders are demanding it, the borrower gets no hall pass. We
    insurance issues for each affected loan, and the geographic      do not believe, however, that this flexible standard should
    concentration of the pool assets (too many loans focused on      be memorialized in the loan documents themselves, as this
    coastal Florida, for example).                                   would give an entrée to the borrower to sue the lender for
                                                                     not compromising. It is better to leave all the flexibility
       Servicers again will be confronting the thankless but         among parties on the debt side of the equation.
    essential task of enforcing loan document language and
    pooling and servicing agreement (PSA) requirements.                  This more elastic approach could help lessen the
    Lessons learned from the last insurance capacity-and-            frequency and severity of nasty litigation that plagued many
    pricing crisis involving terrorism insurance will prove          pools with terrorism insurance issues. At least from Moody’s
    helpful, even though the risks and concerns posed are            perspective, servicers need not have knee-jerk responses in
    qualitatively and quantitatively different. Servicers were       demanding windstorm insurance in all cases; the rating
    faced then with often defiant borrowers, and with inflexible     adjustment will vary from very low to nothing in some cases,
    loan and PSA documents. Expensive, drawn-out legal               to higher in others. Of course, the servicer will need to
    battles ensued in which servicers repeatedly succeeded in        consider the scope of its possible liability to bondholders if
    getting terrorism coverage but that sometimes resulted in        it does not demand windstorm insurance, a hurricane hits
    interest shortfalls to investment-grade tranches. With           and causes a loss, and the inevitable second guessing starts.
    windstorm insurance, borrowers will likely be somewhat less
    defiant and more compliant, because the risk is actuarially      PROBABLE MAXIMUM LOSS APPROACH: FOR INDIVIDUAL
    undeniable. But there will be disputes and tough decisions       PROPERTIES, NOT YET READY FOR PRIME TIME
    to make.                                                            Real estate owners and lenders agree that no property
                                                                     need be over-insured: too much insurance is too much of a
      However, PSAs now give the master and special servicer         good thing. The thorny debate, of course, is exactly how
    more leeway than previously. Moody’s believes that servicer      much is too much of a good–and nowadays, a very

    58 CMBS WORLD®
Is PML the Answer to the Hurricane Insurance Crunch?   (cont.)

expensive–thing. With windstorm insurance recently               properties located in hurricane prone areas. They varied
becoming harder to find and harder to afford, pressure           dramatically in detail, comprehensiveness and quality.
has been mounting in some quarters to introduce the              Some were done with great care, but with arguable
probable maximum loss (PML) approach to help size the            assumptions and methodologies. None were fully
proper amount of windstorm insurance.                            acceptable and were able to convince us to alter our
                                                                 expectation that the subject property could do without
   PMLs have been around for many years. They                    full or nearly full replacement cost windstorm insurance.
originated with insurance companies’ needs to roughly
calculate the reasonable upper bound of possible fire              Some problems we have identified with the
damage to a building assuming all proper fire safety and         immediate acceptance of current generation of
suppression systems were working.13 The phrase and the           windstorm PML for individual properties are these:
approach then migrated into earthquake damage
analysis, where it grew more sophisticated and                     • Most of the assumptions are based on limited data.
blossomed into an important cottage industry supporting              Many years of effort, and many federal dollars, have
building design, engineering and financing. PMLs,                    gone into studying the science of earthquakes and
applied on a broad portfolio basis, also are used by                 its effects on buildings. There generally has not
insurance regulators, reinsurance and primary insurance              been an equal and corresponding amount of effort
companies, and rating agencies to gauge the adequacy of              on effects of windstorm on buildings. Experts
insurance companies’ surplus and reserves against the                believe that data on historical events is relatively
shock of catastrophic losses for which they write                    incomplete; few of the significant windstorms in the
insurance coverage. Armed with knowledge of their                    20th century have reliable gust information.
known limitations, and with a rough and ready                        Generally, models do not incorporate a figure that
adjustment to their output because of their inherently               tries to estimate the effect of lack of true
unknown limitations, PMLs many times, and in the right               understanding of how hurricanes work and the
contexts, can be useful tools.                                       existing lack of a complete suite of data.

   Within the last few months a nascent, grass-roots               • As a leading catastrophe modeler has written, “It is
movement has been raising questions about whether                    universally accepted that the proliferation of PML
adoption of a “PML approach” for mitigation of                       definitions is confusing, and can lead to problems for
hurricane insurance requirements is a prudent possibility.           insurance decision-makers.”15 “PML” is a phrase
The argument is that acceptance of PMLs for hurricane                that includes so many variant approaches,
insurance needs (i.e., having a building insured up to the           assumptions       and omissions that the output
calculated PML instead of the more expansive and                     presented to decision makers cannot just be plugged
expensive traditional alternative, full replacement value)           in to permit a certain value of insurance coverage.
will open up windstorm insurance capacity by reducing
demand, will lessen the cashflow burden on already thin            • Only recently, for instance, Hurricane Katrina
debt service cover ratios (DSCRs), and will cut down on              showed the severe limitations of the assumptions
loan defaults for failure to comply with loan document               underlying storm surge damage calculations. What
insurance criteria.                                                  other areas of windstorm effects are being
   Moody’s believes that at this point, with the large
number of uncertainties, ambiguities and unresolved                • The common use of a 475-year return period,
issues relating to windstorm PMLs, the real estate                   inherited from earthquake PMLs, may not square
finance industry should proceed gingerly, step by step, as           with our Moody’s rating grid, especially for single
methodologies are fine-tuned, empirical data are                     asset deals. For instance, the default rate expected
gathered, definitions become consistent and                          of a Aaa-rated bond over 10 years is 0.01%. The 475-
standardized, and the whole package is then accepted by              year return period therefore may not be a nearly
consensus of industry stakeholders, before time-tested,              demanding enough standard. As the above quoted
prudent underwriting practices for windstorm insurance               catastrophe modeler also wrote, “The use of 475
are abandoned.14 Windstorm PMLs for individual                       years as a return period … is arbitrary; other long
properties may very well have an important role in the               return periods might be chosen.”16
near future, and may even have a circumscribed role
presently, but they are not the panacea for this year’s            • The convenient use of favorable assumptions or
windstorm insurance crunch.                                          omissions of inconvenient data. Some have assumed
                                                                     that demand surge,17 a figure that can range up to
   Moody’s has been presented with a number of PML                   40% in extreme cases, would be nothing or close to
studies in the last few months, for large to very large              nothing. Some have assumed that storm surge will

                                                                                                         WINTER 2007    59
    Is PML the Answer to the Hurricane Insurance Crunch?   (cont.)
            not occur. Some have used the “long-term” view,                     There was another storm, Zeta, that formed after hurricane
            rather than perhaps the more relevant “short term”                  season ended on November 30.
            view.18                                                         3
                                                                                As of August 8, 2006.
      We believe that PML studies for individual                                According to; August 2004, August 2005 and
    properties, if they are to move into the realm of                           August 2006 figures.
    commercial real estate finance industry acceptance, will                    “Natural Disaster Catastrophic Insurance White Paper,”
    have to include certain facts, assumptions and other                        Mortgage Bankers Association, September 2006
    enhancements, such as:                                                  6
                                                                                The last resort insurer in Florida, Citizens Property Insurance
                                                                                Company, has limits to what it can offer. It offers coverage that
         • Using the short term view, in addition to the long-
                                                                                tops-out at $1 million, does not offer replacement cost coverage,
           term view of hurricane frequency and severity.                       does not provide business interruption insurance, may come with
                                                                                some built-in co-insurance issues, and does not offer so-called
         • Providing a range of scenarios, including using a                    (but very important) “ordinance and law” coverage. In early
           menu of loss exceedance periods19 greater than 475                   September, Florida began setting up a new commercial property
           years that more closely match Moody’s expected                       insurance pool, where the limits will be $1 million for property
           default stress levels for the upper reaches of                       damage, and $1 million for contents and business interruption
           investment-grade.20                                                  insurance. Details are being worked out as we go to press.
                                                                                According to the National Weather Service, 40% of all U.S.
         • A statement of a realistic measurement of error for a
                                                                                hurricanes hit Florida, and 80% of all Category 4 or higher
           single property study. This reflects the fact that
                                                                                hurricanes that strike the U.S. shores haves struck either Florida
           PMLs, with all the primary and secondary
                                                                                or Texas.
           uncertainties of the data and methodologies, are
           more accurate when used on large portfolios of                       The so-called “Atlantic Multidecadal Oscillation.” The latest
           properties than on individual properties.                            upswing began in 1995. Many experts believe the cycle will
                                                                                continue supplying hurricanes at above-average levels for the
         • Inclusion of realistic “demand surge” calculations in                next decade or two.
           the result.                                                      9
                                                                                This actuarial determination may be the Achilles heel of self-
                                                                                insurance: debate over proper methodologies, and therefore the
         • Use of at least two models’ outputs to determine                     correct amount of reserves/surplus, could be a difficult process.
           results for very large loans.                                        Note that Moody’s expects that insurance providers for large
                                                                                loans carry a Moody’s insurance financial strength rating of at
         • Transparency and disclosure of key assumptions: a                    least A3. This is why, from a practical viewpoint, self-insurance
           model is only as good as its assumptions.                            should be limited to things like deductibles and small slices of
         • Focused, detailed analysis of the subject properties’            10
                                                                                 Financing of premiums, that is, the payment over time of
           design and construction, rather than generic, off-the-                premiums that are normally paid in one lump sum, is also a
           shelf analysis that only roughly considers the                        possible relief valve, if handled properly (e.g., always absolutely
           particulars of a building.                                            requiring the finance company to give prior written notice and
                                                                                 sufficient time to the servicer to cure before canceling a policy).
         • Use of a highly reputable, highly expert consultant.                  Insurance premium financing should only be used as a post-
                                                                                 closing fix for distressed borrowers; loan originators confronted
       PML modeling for windstorm is still in its infancy. With                  with large premiums should structure reserve/escrow accounts,
    proper nurturance, it may grow to be a powerful and useful                   with appropriate loan funding holdbacks, to solve insurance
    tool. But until then, Moody’s believes that unquestioning                    premium problems identified at origination.
    employment of property-level PML studies as a quick fix                 11
                                                                                 See “U.S. CMBS: Insurance Premium Caps May Have
    to the windstorm insurance crunch would trigger an
                                                                                 Negative Credit Implications for Large Loan,” Moody’s
    imprudent transfer of risk to CRE finance investors. u                       Special Report, June 2005.
                                                                                 Care should be taken that any such guarantees not adversely
    Daniel B. Rubock is Senior Credit Officer at Moody’s Investors               affect nonconsolidation opinions.
    Service.                                                                13
                                                                                 This is distinguished from maximum foreseeable loss, which
                                                                                 estimates a worst case scenario of all systems failing.
    1                                                                       14
        7.9% of real property value in the U.S. is located in the coastal        The earthquake insurance approach is a handy though
        counties of the Gulf Coast and the Eastern seaboard up to and            somewhat imperfect legacy that the real estate industry adopted
        including Virginia, according to AIR Worldwide.                          that the capital markets acquiesced in but that is currently
                                                                                                                                 (continued on p. 71)

    60 CMBS WORLD®
Enforceability of Carve-Out Clauses in Non-Recourse Loans   (continued from p. 70)

18                                                                              40
     Heller, WL 1888591 at 2.                                                        Id. at 1045.
19                                                                              41
     Andrew H. Levy, “Bad Boy” Guarantees: Courts are Enforcing                      Id.
     Non-Recourse Carve-outs, New York Law Journal, July 2003, at                                                                                              ®
                                                                                     Levy, “Bad Boy” Guarantees, supra, at 2.
20                                                                                   Federal Deposit Insurance Corp., 58 F.3d at 1045.
     Heller, WL 1888591 at 4.
21                                                                                   Id. at 1046.
     Id. at 5.
22                                                                                   Levy, “Bad Boy” Guarantees, supra, at 3.
23                                                                                   Levy, “Bad Boy” Guarantees, supra, at 3.
     Id. at 4.
24                                                                                   Nippon Credit Bank, Ltd. v. 1333 N. Cal. Boulevard, 86
     Id. at 5.
                                                                                     Cal.App.4th 486 (2001).
     Id.                                                                        48
                                                                                     Aozora Bank, Ltd. v. 1333 N. Cal. Boulevard, 119 Cal.App.4th
     Levy, “Bad Boy” Guarantees, supra, at 2.                                        1291 (2004).
27                                                                              49
     First Nationwide Bank v. Brookhaven Realty Assocs., 637                         Nippon, 86 Cal.App.4th at 496-97.
     A.D.2d 418 (S.D.N.Y. 1996).                                                50
                                                                                     Aozora, 119 Cal.App.4th at 1297.
     First Nationwide Bank, 637 A.D.2d. at 420.                                 51
                                                                                     Id. at 1293.
     Id.                                                                        52
     Id.                                                                        53
                                                                                     Id. at 1294.
     Id. at 421. “Ipso facto” clauses negatively affect a debtor’s rights       54
     in some way simply for filing bankruptcy and are generally
     unenforceable against the debtor in bankruptcy.                                 Id.
32                                                                              56
     Id.                                                                             Code Civ. Proc., § 1021.
33                                                                              57
     Id.                                                                             Aozora, 119 Cal.App.4th at 1295.
34                                                                              58
     Federal Deposit Insurance Corp. v. Prince George Corp., 58 F.3d                 Id.
     1041 (4th Cir. 1995).                                                      59
                                                                                     Id. at 1296.
     Federal Deposit Insurance Corp., 58 F.3d at 1044.                          60
                                                                                     Id. at 1297.
     Id.                                                                        61
                                                                                     Although none of the foregoing cases involve securitized loans, the
     Id.                                                                             result for securitized loans should be no different, and all of these
38                                                                                   cases would be strong precedent in the securitized context.

Is PML the Answer to the Hurricane Insurance Crunch? (continued from p. 60)

     undergoing an intensive industry-wide re-examination, led by               18
                                                                                     The long-term view is the suite of historical hurricane data
     the Mortgage Bankers Association. Moody’s does not believe that                 compiled over the decades; the short term view is the set of
     the earthquake insurance approach is a fully analogous template                 extrapolated figures gleaned from the behavior of windstorms in the
     that can be freely transplanted to solve the windstorm insurance                last few years—as discussed previously, higher figures.
     crunch.                                                                    19
                                                                                     A range of confidence levels, not just the mean (e.g., the 90% level),
     Gordon Woo,“Natural Catastrophe Probable Maximum                                should also be provided.
     Loss” British Actuarial Journal, Volume 8, Part V (2002).                  20
                                                                                     As you get to the far reaches of an extended return period, the results
     Ibid.                                                                           become “fuzzier” and come with less confidence. Nonetheless, such
     Demand surge is the sudden increase in prices for construction                  figures will be useful as one more ingredient helping to size the risk.
     materials and labor that can follow the effects of a catastrophe, as
     numerous consumers in the affected area cause a greatly spiked
     demand for these things to reconstruct their properties.

                                                                                                                                      WINTER 2007        71

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