Insuring Cannabis Businesses – Issues and Problems

Illustrate a cannabis plant

Insuring cannabis businesses can be problematic. During the course of the past two years, I’ve written several new insurance continuing education (CE) online and webinar courses for my client, A.D. Banker & Company. One of the most recent webinars is Insuring Cannabis Risks.

The course is the brainchild of inquiries submitted by individuals who attended a free monthly webinar I co-host with A.D. Banker vice president, Pam Reihs. During each 1-hour Insurance Trends Webinar, Pam and I talk about insurance topics of current relevancy. How to insure cannabis businesses is always at the top of the list. Questions we often receive are:

  • Why isn’t cannabis/marijuana legal in all the states?
  • In what states IS marijuana legal?
  • What about hemp, that’s legal, isn’t it?
  • Why is it so hard for cannabis businesses to establish relationships with banks and credit card companies?
  • What insurance companies write insurance for cannabis businesses?

The insurance CE webinar answers these and other questions for licensed insurance professionals. I recently wrote two blog posts for A.D. Banker that summarizes the most important information contained in the course. So, for you insurance and non-insurance people alike, feel free to visit those blog posts:

Check back as I provide ongoing updates about this evolving insurance marketplace. To register for the insurance CE webinar, click here. You can find my insurance webinar schedule here.

Prepare for Hurricane Season

In this week’s podcast episode, I talk about how insurance agents can help their policyholders prepare for hurricane season. Here are a few excerpts from the podcast, along with resources that appear at the end of the post:

Did you know?

  • Hurricane season begins on June 1 in the Atlantic and on May 15 in the Eastern Pacific. In all locations, it ends on November 30.
  • The biggest threat during a hurricane is storm surge–especially at high tide.
  • The National Weather Service reports that the number of hurricanes keeps growing each year.
  • During high winds, the 4 biggest areas of weakness in any building are its roof, windows, entrance doors, and garage doors.
  • Not all property insurance policies provide coverage for wind–especially in coastal states.
  • NO standard property insurance policies provide coverage for storm surge caused by a hurricane. This is because, in most states, it is considered a form of flood–which is an excluded peril.

For more information about how to prepare for hurricane season, listen to the entire podcast, which can be found at: https://episodes.castos.com/5e6ccb9ab4cf97-55025247/TMoI-Ep-16-Aug-4-Prepare-Hurricane-Seaxon.mp3

Resources: Prepare for Hurricane Season

Ready.Gov Hurricanes: https://www.ready.gov/hurricanes

NOAA Hurricanes: https://www.noaa.gov/education/resource-collections/weather-atmosphere/hurricanes

National Weather Service Hurricane Safety: https://www.weather.gov/safety/hurricane

Webpage with database of disaster declarations by state: https://www.fema.gov/disasters/

DHS’ DisasterAssistance.gov website: https://www.disasterassistance.gov/

SBA disaster loans: https://disasterloan.sba.gov/ela/Home/Questions

NFIP/FEMA Hurricane Season: https://agents.floodsmart.gov/pacifichurricaneseason

COVID, the Insurance Industry, and our Crystal Balls

This week, I ventured down a slightly different path on my podcast. I talked about COVID and insurance, but more about what I believe we need to consider for the future rather than about what is happening today.

Take a listen and then share what YOU think might happen: https://episodes.castos.com/5e6ccb9ab4cf97-55025247/TMoI-Episode-12-MR.mp3

How Homeowners Insurance Works When You’re Working from Home

The homeowners policy was designed to insure personal risks, not business risks. For this reason, virtually all coverage for business property and liability is explicitly excluded in the homeowners policy.

Very limited property coverage is included for business personal property. The limit usually ranges between $1,000 and $2,500 if the business property is at your house. The limit is much less for business property anywhere else–like in your car.

Liability coverage for business activities is also severely limited. It only applies to incidents that occur on your property at home, and only for those that arise when:

  • Your house is rented–either occasionally as a residence or when a part of it is rented to 1 or 2 boarders. This does NOT include Airbnb rentals, or any series of rentals. Neither does it include renting your barn to a neighbor who does lawn mower repairs.
  • A portion of your house or other building is rented for use as a private garage, office, school, or studio. Think designating a room for use to give music or dance lessons, or as an office for a writer.
  • An insured who is under age 21 runs a self-employed part-time or occasional business that does not have any employees.

What all this means is that if a person is working from home, any property used for business–regardless of whether it is owned by the individual or the individual’s employer–has very limited coverage. If the employer has insurance for property it owns, that property should be insured specifically on the employer’s policy with an indication it is located at the employee’s home. In some cases, the employer’s failure to cite the location of the property on its policy, especially if the property is valued at more than $5,000 or $10,000, might result in a lack of adequate coverage in the event of a loss.

Potential problems relating to the lack of business liability coverage under the homeowners policy are more serious. In most cases, clients do not visit employees working from home. But if anyone visits your home for business and gets hurt, your unendorsed homeowners policy does not provide any liability coverage. Similarly, if a FedEx or USPS employee trips and falls while delivering business mail or packages, any claim for injuries would not be covered. Basically, coverage for ANY other type of liability (think cyber liability, products liability, etc.) is NOT covered, either.

Endorsements are available to add limited business property and liability coverage to the homeowners policy but, in most cases, it’s probably not adequate. Some insurers also offer a home business endorsement that does include business, or commercial, coverage. That’s probably a better idea.

Remember, even if you’re working from home and your employer does have coverage for property it owns, and its own liability, your employer gets the broadest coverage under that policy. If you’re covered under it, you can still be held personally liable for property damage and bodily injury resulting from business activities conducted at your home.

Unless you buy and add business endorsements to your homeowners policy, you might find yourself uninsured in the event of a loss when you’re working from home.

For more details, listen to this week’s podcast at Taking the Mystery out of Insurance.

Legal Liability and the Pandemic

People are talking about lawsuits these days, even more fervently than usual. Why? Because the big question is: What will happen if a person claims he or she contracted COVID-19 at a restaurant, or store, or at work … and then sues the business owner? Will the business’ insurance policy pay the claim?

At the moment, it’s impossible to answer that question with any certainty because we have no precedent to follow. In other words, we’re in uncharted waters.

One of the first things to remember about insurance claims (with or without associated lawsuits being filed) is that liability insurance only pays if the insured was legally liable for causing bodily injury or property damage. And legal liability can only be determined by the courts.

It’s true that many insurance companies settle claims without lawsuits being filed or trials having to be undertaken. And that’s because the facts associated with the claim are so clear cut the insurance company is confident that if the matter went to trial, their policyholder would be deemed negligent and, therefore, legally liable.

Nothing about COVID-19 is especially clear right now. Therefore, how can we determine whether an individual or business exercised due diligence in preventing its spread?

My best guess is that if every business follows federal, state, and local guidelines about social distancing and preventing the spread of coronavirus, proving it was negligent is going to be very difficult. However, many believe some guidelines are not feasible, or reasonable. What then?

Only time will be able to answer these questions. However, I do talk more about this topic on Episode 8 of my podcast, so take a listen here.

Podcast Guest: Barb Gavitt Talks Insurance Licensing in a Pandemic

Barb Gavitt is Vice President of Product Development and Education at A.D. Banker & Company, one of the leading insurance pre-licensing and continuing education providers in the country. She is also the 2020 president of the Securities & Insurance Licensing Authority.

Barb sat down with me recently to discuss the challenges many have been facing, and continue to face, in light of the COVID-19 pandemic shutdown. Although the insurance and financial services industries have been deemed “essential” during shelter-in-place orders, the licensing test centers were not.

This means that individuals who were already hired to work in the industry could not obtain their licenses, despite having paid significant fees and devoted tremendous amounts of time studying. Similarly, those wanting to be hired or wanting to obtain an additional license or line of authority on an existing license find themselves equally frustrated and stymied.

On Episode 6 of my podcast, Taking the Mystery out of Insurance, Barb explains what’s been happening to date, how the states are opening up now, and what she anticipates in the future.

A video of our chat will appear on the podcast’s YouTube Channel later in the week.

Update: Cannabis Regulation

In prepping for the SILA Foundation webinar I presented yesterday, I have two items to share with you since the last time I blogged on the topic of cannabis.

Topic #1: Decriminalization

A number of states have decriminalized marijuana. Contrary to what many people infer from the term “decriminalized,” it does NOT mean a person is not guilty of a crime of possessing, growing, or selling marijuana. Unless the state has passed a law that stipulates the medical, or adult recreational, use/possession/sale of marijuana IS legal, it is still a crime.

What the term means is that if a person has a “small amount” of marijuana in his or her possession, law enforcement will not arrest and charge that person with a crime. However, law enforcement may still confiscate the marijuana and the person can be fined for possession. Each state defines “small amount” differently. The most common amount is less than 1/4 of an ounce.

So, what does this mean? Let’s say I’m driving along the road in a state that has not legalized the medical or recreational use of marijuana, but has decriminalized it. A cop pulls me over for speeding and spots the ounce of pot I have sitting in the cup holder in my console. The cop can arrest me for illegal possession, I can be charged and found guilty of a crime, and I can be fined or jailed–however the state punishes that particular crime.

But, if the pot in the cup holder is less than the “small amount” defined by that state’s law, the cop can confiscate my pot (or not) and he can issue a citation that results in a fine (not a crime) for illegal possession ( or not).

Here’s a URL that lists how each of the 50 states and the District of Columbia handle the legalization of marijuana: https://disa.com/map-of-marijuana-legality-by-state

Topic #2: Court-Enforcement of Contracts re: Cannabis Businesses

A recent ruling by the Nevada District Court shows that federal courts are handing down different findings with respect the the enforceability of contracts to which cannabis-related businesses are a party.

If you want the full story, click the link above. Here’s the short story:

When a cannabis business sues or is sued over breach of contract, the federal courts seem to be taking one of two positions:

  1. If the matter at issue relates to insurance, federal labor laws, federal intellectual property rights, and other contracts and laws not directly related to the growth, sale, etc. of cannabis, they seem to be ruling in a way that enforces the contract. Why? Because enforcement of the contract does not violate federal law under the Controlled Substances Act, which deems marijuana a Schedule I substance–and illegal under federal law. In other words, if I own a cannabis dispensary and lied on my insurance application about whether I use a safe, and my insurance company later denied my insurance claim for theft, the court will likely enforce the contract and side with the insurer (if it has proof I lied and violated the warranty about the safe).
  2. If the matter relates to a contract that are directly related the growth, sale, etc. of cannabis (such as a loan to expand the business), they seem to be ruling in a way that does not enforce the contract. In other words, if I failed to repay the loan I secured to expand my cannabis dispensary and the lender sued me to get the money back, the court will likely NOT find in favor of the lender suing me because I breached the loan agreement. Why? Because finding for the lender puts it in a position where it benefits from assisting an illegal cannabis business conduct operations–which violates federal law under the Controlled Substances Act.

Summary

How we insure cannabis risks in this country is ever-evolving and so long as federal and state laws differ with respect to legalization of marijuana, we’re in for a wild and exciting rollercoaster ride. Check back for more updates as they become available.

Business Interruption Insurance and the Pandemic

In a number of states, legislation has been proposed to compel insurance companies to pay business interruption losses. Before I discuss the 2 biggest issues related to this pending legislation, let me recap exactly what business interruption insurance is.

Business interruption (BI) coverage is a form of indirect PROPERTY insurance. This mean’s a covered peril in a property policy must cause a loss, and that insured loss must, in turn, trigger the business to shut down operations.

For example, if a business’ building were destroyed by an arsonist, the covered peril of fire caused the property loss. The business’ BI coverage will be triggered. However, if a flood destroyed the business’ building and shut down operations, the peril of flood is an excluded peril and neither the flood damage nor the ensuing business interruption would be covered by the policy.

Although many people, including state governments and politicians, are calling for insurance companies to honor the business interruption losses of ALL businesses that were shut down as a result of COVID-19 orders, I don’t see that actually happening.

Here’s why.

First, coronavirus–or any virus, for that matter, is NOT a covered peril in any insurance policy I ever read. Even more importantly, most insurance policies contain specific exclusions for the perils of “virus” and “pollutant,” both of which would apply.

Furthermore, the shutdown of operations to any business due to COVID-19 is not a result of property damage. It is the result of a civil authority making an order. And yes, although business interruption insurance does provide limited coverage for Civil Authority, that policy provision requires the civil authority to evacuate an area, or prevent access to it, because of a peril that is covered by the business’ policy.

Back to the 2 big concerns I promised to discuss.

First, when insurance companies file their premium rates with the states–as required by state law–those rates are approved by the states. The entire concept of risk pooling, which is the foundation of the insurance industry, is violated if an insurer MUST pay for every single loss experienced by every single policyholder in a particular year. Essentially, it would bankrupt an entire segment of the insurance industry.

Next, the insurance policy is a legal contract. Contracts are regulated and enforced by the federal and state governments. However, the only parties to an insurance contract are the insurer and the insured–not the government. Under federal law no one can force the parties to a contract to amend its terms and conditions. I’m not a lawyer, and I’m not giving legal advice, but based on the talk I’m hearing from lawyers, it’s unlikely any state government will prevail in court if it attempts to constrain insurers to pay all business interruption claims they receive.

This is the short version of the story about how the pandemic is affecting the current insurance marketplace and, specifically, business interruption insurance. For the long version, listen to Episode 5 of my podcast, Business Interruption Insurance in a Pandemic.

Cannabis in the Insurance Industry

Because the federal government classifies marijuana under Schedule I of the Controlled Substances Act, its cultivation, possession, use, and distribution is illegal under federal law. Not all the states agree with the federal government.

11 states have legalized the recreational use of marijuana, 35 states have legalized medical marijuana programs, and many of the remaining states are considering doing one or both.

One of the biggest problems faced by those working in the cannabis industry–and insurance companies and agents working with those businesses–relates to money. Because cannabis businesses are considered illegal operations by the federal government, federally regulated banks won’t do business with them. A number of federal laws–including RICO and money laundering statutes–impose reporting restrictions and penalties on banks who don’t comply. Because these banks are concerned about repercussions by the federal government, they won’t open accounts for anyone in the cannabis industry.

Some local and county banks have been working with cannabis business in states that have legalized marijuana but the majority of these business deal strictly in cash, and face many challenges because they have a great deal of cash on hand. When a cannabis business can obtain insurance, the carrier will require specific and strict conditions to be met in connection with security … because of the crime exposure. Criminals targeting cannabis businesses are far more interested in finding cash than they are pot plants.

For more information about this topic, listen to today’s podcast, or check out any of the following resources:

May Webinar Dates

My May schedule of webinars for A.D. Banker is now available:

  • May 05 | 11:30 a.m. | Driving into the Future: Uber, Drones, and Driverless Cars
  • May 11 | 11:30 a.m. | Emerging Technologies & Market
  • May 14 | 8:30 a.m. | Anti-Money Laundering 1-hour Refresher
  • May 19 | 11:30 a.m. | Ethics in Action
  • May 28 | 8:30 a.m. | Anti-Money Laundering

For more information, or to register, click here.