Employers Vulnerable to Associational Discrimination Claims

Most employers are aware of the employee protections found in Title VII of the Civil Rights Act of 1964. Employers may not discriminate against employees on the basis of race, color, religion, sex or national origin. Also, they may not retaliate against employees who have protested against an illegal employment practice or who participated in an investigation or other activities against the employer for an illegal practice.

Further, recent court decisions have applied Title VII’s protections to an employee’s association with another person whose characteristics fall under those protections. The U.S. Supreme Court held in 2006 that employers cannot discriminate against someone closely related to or associated with a person who is exercising protections under Title VII. Two federal courts earlier this year ruled that employers violated the law by discriminating based on association. One allegedly fired a white basketball coach because his wife was African-American; the other allegedly fired an employee whose coworker’s fiancé filed a complaint with the Equal Employment Opportunity Commission.

All employers are vulnerable to these types of accusations, even those who strive to obey the law. Employment practices liability insurance (EPLI) policies cover many types of losses resulting from employee claims. How will they respond to association discrimination claims?

EPLI policies vary somewhat from one insurance company to another, but most provide coverage for acts such as discrimination, wrongful termination, harassment, retaliation, and inappropriate employment conduct. A typical policy covers discrimination against an employee for termination of the employment relationship, demotion, failure to promote, denial of an employment benefit or other adverse action based on a number of characteristics such as color, race, sex, ethnicity, age and religion. It also covers retaliation claims if the employee engaged in a protected activity, the employee suffered an adverse action, and the protected activity caused the adverse action. Because they specifically apply to employees who have these characteristics or who perform protected activities, these policy provisions do not appear to cover actions against employees because of their association with others.

However, the policies usually also cover “inappropriate employment conduct.” Among the acts that may fall within this category are coercion, wrongful demotion, wrongful discipline, retaliatory treatment, and others. The definition of “inappropriate employment conduct” will be different from one policy to another. One insurance company may cover association discrimination while another may not. As such, employers should discuss specific terms of coverage with their insurance agent.

The policies might cover the employer, but not the employee alleged to have committed the act, if a court determines the employee deliberately acted illegally or with intent to harm the other employee. For example, if a court ruled that a supervisor was acting maliciously when he fired an employee for marrying someone of a different race, the insurance might pay for the employer’s defense and liability but not for that of the supervisor.

In this era where job cuts and lawsuits are common, employers face a real exposure to actions against them for the decisions they make. Lawsuits can be costly even if they are groundless; the costs of defending them can mount rapidly. EPLI provided by a financially solid company is an important part of every employer’s risk management program.

EPLI, coupled with a well-executed loss prevention program, will help any employer survive employee accusations.

Tips for Evaluating Contractor’s All Risk Policies

Construction is a high risk industry. Personal injuries and property damage occur frequently, and these events ultimately cost the contractor money. Many times such claims could be covered under a Contractor’s All Risk (CAR) policy.

CAR policies, commonly referred to as Course of Construction or Builder’s Risk policies, insure against physical loss or property damage to works, plant, equipment and materials during the course of construction. Such policies can be complicated so contractors should take care to ensure that any coverage adequately covers the risks of the construction project to be undertaken. Many contractors can be caught short by failing to evaluate their potential liability risks in relation to the policy they are considering.

Here are some important rules to evaluate CAR policies:

* Conduct an insurance audit with a risk manager or broker to determine potential liability and any risk not covered by your current policy.
* Consult with your broker because many insurers can customize the coverage to match the needs of the project. The insurer needs time to do this effectively, so don’t wait till the last minute.
* Take note of exclusions because while most are expressly stated, others can be implied and can radically limit your protection. One frequently implied exclusion is consequential loss relating to loss of profits and expenses as an indirect result of the cause of the claim. Naturally occurring events such as deterioration due to mildew, rust, or obsolescence may also be deemed as implied exclusions.
* Confirm there are no unusual limitations on the measure of damages. The method in which your insurance carrier determines damages can significantly affect your bottom line.
* Carefully consider the period of coverage as it normally only extends to when the contractor is on site and ceases when the client takes possession. Ensure there is extended coverage should problems develop later on.
* Technological changes using business information technology opens many contactors to new risks if they incorporate design management in the construction project. Additionally, construction companies which use BIM also have to consider potential losses due to hacking or data corruption that would not likely be covered under a CAR policy.
* Review the excesses and deductibles to be applied by your insurer to determine if they are reasonable.
* Fully document your damages with the aid of an experienced consultant, as CAR carriers will strive to reduce the cost of damages. Costs stemming from prolongation of the claim may be restricted to maximum excess limitations.
* Use a legal consultant especially when preparing a major claim. They can guide you through any potential red tape and aid in negotiating a proper settlement.

Do You Have Coverage If You Damage a Customer’s Property?

A plumbing contractor’s employee is soldering two lengths of pipe together when a fellow employee asks him to assist with another task for a moment. The first employee lays the soldering torch on a ceiling joist, forgetting that it is still hot. While he is away, the joist begins to smolder, then small licks of flame form and ignite combustible material in the ceiling. By the time someone notices, fire is consuming the ceiling. Firefighters’ efforts to extinguish the blaze cause water damage to portions of the building and walls near the fire’s starting point suffer smoke damage.

The building owner will most likely hold the contractor responsible for the cost of repairing the damage. In turn, the contractor will look to his general liability insurance policy to cover that cost. Will the insurance company pay for the repairs?

The Insurance Services Office’s Commercial General Liability Coverage Form states, “This insurance does not apply to…’property damage’ to…(t)hat particular part of real property on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the ‘property damage’ arises out of those operations…” What does this mean, and how does it apply to an incident like this one? What does the form mean by the phrase, “that particular part”? Several courts have weighed in on this question.

A Tennessee court in 1975 ruled against an electrical contractor whose employee, while installing circuit breakers in a switchboard, caused a short circuit that destroyed the entire switchboard. The court said that the employee was performing operations on the switchboard, not just the individual circuit, and therefore liability coverage did not apply. Similarly, a Massachusetts court ruled against a cleaning contractor in 1989. The contractor was cleaning the bottom of an underground oil storage tank when an explosion occurred, destroying the entire tank. The contractor argued that the insurance should cover all of the damage except that to the bottom of the tank, but the court ruled that the entire tank was “that particular part” on which the contractor was performing operations.

Conversely, a Minnesota court granted coverage for a contractor that had been hired to clear trees and brush from a construction site but that also cut down trees on an adjoining property. The court said that, while the liability policy would not cover damage to property the contractor had been hired to work on, it did cover damage to the property of a third party. A New York court ruled in 1974 that a liability policy covered damage that occurred after the contractor had completed operations.

The courts have not established firm rules about what constitutes “that particular part” of property on which a contractor is performing operations. Case law will vary from one state to another. Because of this, contractors should discuss the exposure with their insurance agents. To reduce the chances of an uninsured loss occurring, an agent may recommend the purchase of a builders risk or installation floater policy. These policies cover property that the contractor is installing on a construction site while it’s in storage, in transit, on the job site and during installation. They also usually cover property of others for which the contractor may be liable. Unlike the general liability policy, there are no standard versions of these policies, so contractors must review them carefully and ask their agents questions about anything that is unclear.

The law of averages suggests that most contractors will accidentally damage a customer’s property at some point. Now is the time to make sure that there will be no insurance surprises when it happens.

Primary and Noncontributory: What Does It Mean?

Construction contracts often require a subcontractor’s general liability insurance policy to name the owner or general contractor as an additional insured on a “primary and noncontributory” basis. This seemingly simple requirement can cause a lot of difficulty and may hamper the sub’s ability to start the project. The International Risk Management Institute recommends that risk managers not include this requirement in contracts. Insurance agents can add wording to a certificate of insurance only if the insurance company approves it. Insurance companies tend to resist adding this language to their policies and certificates. Why are the words “primary and noncontributory” such a problem?

In liability insurance claims, when two policies cover the same loss, one usually applies on a primary basis and the other on an excess basis. This means that one will pay first (the primary policy), and the other will pay only if the primary policy either does not cover the loss at all or if the amount of insurance is not enough to pay for the entire loss. For example, if the primary policy has a limit of $1,000,000 each occurrence and the amount of the loss is $1,500,000, the primary will pay its limit of $1,000,000 and the other policy, which applies on an excess basis, pays the remaining $500,000.

If both the general contractor and the subcontractor have bought modern editions of the Insurance Services Office’s Commercial General Liability Coverage Form, the subcontractor’s policy is automatically primary. The form’s wording makes the insured’s coverage excess over any policy that has added the insured as an additional insured by endorsement. Therefore, the “primary” part of the requirement is a minor issue.

The “noncontributory” requirement is more of a problem. Most contracts do not define the term’s meaning, and most insurance policies and endorsements do not include it at all. The GC may believe it means that its policy will not pay even on excess basis; if the sub’s limit of insurance is not large enough to cover the loss, the GC may expect the sub to pay the remainder out of pocket.

The standard additional insured endorsement to a general liability policy covers the additional insured with respect to liability for injury or damage caused at least in part by the sub’s acts or omissions. It also covers liability for acts or omissions of those working for the sub. Coverage lasts as long as the sub has ongoing operations for the additional insured. It does not say anything about the additional insured’s coverage being noncontributory. This is the problem: It is not standard insurance industry practice to cover additional insureds on a noncontributory basis. Insurance companies are reluctant to change that, as they want the additional insured’s coverage to contribute toward paying for the loss. A GC has less incentive to prevent losses when it knows that its own insurance will not be needed.

A contractor who runs into this requirement should notify his insurance agent immediately and ask the insurance company to provide the coverage. If it won’t, he must notify the GC and negotiate alternative terms in order to avoid breaching the contract. The GC may agree to accept the standard endorsement with a promise not to reduce its coverage. He should also consider asking the agent to seek this coverage at the next policy renewal. Most importantly, he must understand what the contract requires and ask questions about provisions that are unclear. No one wants to find out after an insured loss that he must pay part of it with his own money.

Five Ways to Control Workers’ Comp Costs

Most businesses are required by law to provide workers’ compensation insurance. It protects employees, providing income and medical care if they’re injured on the job. It also protects employers; the liability portion provides coverage for lawsuits filed as a result of a work-related injury.

As an employer, the amount you pay for workers’ compensation coverage varies according to your industry and claim history. Workers’ compensation insurance for companies that engage in office-based work is generally much less expensive than insurance for industries like construction or trucking.

Regardless of your industry, there are proactive steps you can take to keep workers’ compensation costs under control. Here are some tips:

Thoroughly train new employees: Surveys show that nearly a third of workers’ compensation claims result from accidents involving newly hired employees. Take a look at your orientation program and see if you can improve overall safety by beefing up new employee training.

Make safety a top priority: The best way to keep costs down is to not incur claims in the first place. Create a safety culture throughout the company, and engage employees directly in the effort. For example, you could establish safety councils and solicit ideas from employees on how to create a safer workplace.

Pre-screen employees: Another preventive action you can take is to make sure you hire the right employees in the first place. Statistics show that workers who are substance abusers are far more likely to have an on-the-job accident. An investment in pre-employment drug screening can save a significant amount in claims down the road.

Manage claims proactively: When an employee is injured, make sure you keep tabs on the worker’s condition and plan for their return to work as quickly as possible. In some cases, injured employees can rejoin your workforce on light duty, which can reduce the amount of the claim.

Make sure employees are classified properly: There are hundreds of classification codes used to determine the appropriate level of workers’ compensation coverage. If employees are misclassified, you may not have the coverage you need, and misclassifications can result in fines.

Workers’ compensation is essential to protect your employees ― and your company. To sharpen your company’s competitive edge, it’s important to control costs. Take a fresh look at your company’s approach to safety, hiring, classification and claims management. You may find new ways to keep costs under control.

Driving Risk: When Employees Run Business Errands

Have you ever sent an employee out to pick up needed supplies? Offered to buy lunch for the crew and asked an employee to pick it up? Unless you only send employees who are insured to drive your company vehicles, you may be putting your business at risk. Your business may also incur liability if you travel on company business and have an accident in a rented car while traveling to meet a client or for other business-related purposes.

Why would your business be at risk? Because if there is an accident that causes damage to a third party and the driver’s insurance doesn’t cover the full costs, your company may be sued to recover the excess amount. Employees who use their personal cars are generally required by law to have insurance. But unless you hire them as drivers, you probably have no idea how much insurance coverage employees actually carry ― or even if they have insurance at all.

If you’re traveling on company business in a rental car, you’re probably covered by your personal insurance or by a policy purchased through the rental agency. But if you’re in an accident and cause damage that exceeds the amount of personal coverage you have, an attorney for the injured party would almost certainly seek damages from your company.

The Solution

The good news is that there’s a simple and relatively inexpensive solution: a non-owned auto insurance policy. This type of policy protects your business if an employee gets in an accident and causes damage while running a company errand. It also protects your company if you cause damage in an accident while driving a rental car on company business.

Keep in mind that non-owned auto insurance generally doesn’t cover drivers ― its purpose is to protect the organization. Non-owned auto insurance generally does not function as primary insurance; it is designed as excess liability protection. In other words, if your employee causes damage in an accident while driving a personal car on company business, the employee’s insurance would generally pay first. But if the liability exceeds the amount of the employee’s coverage, non-owned auto insurance would protect your business from being responsible for damage costs not covered by the employee’s coverage.

The Bottom Line

Liability claims caused by vehicular damage can run into the millions of dollars. Your business could be at risk if an employee has an accident while traveling on company business. Your company could also be at risk if you or an employee has an accident while driving a rental car on business. Non-owner auto insurance can provide peace of mind ― and vital protection.

Traffic Accidents May Be Biggest Risk to Employee Safety

The International Association of Industrial Accident Boards and Commissions (IAIABC) discovered that not only are highway vehicles the biggest risk of serious injury to employees, but they are also associated with some of the most costly workers’ compensation claims.

The researchers analyzed injury data from the National Council on Compensation Insurance (NCCI) and the National Institute on Occupational Safety and Health (NIOSH). Their findings revealed that only work in construction, agriculture, and certain natural resource industries caused more employee injuries than vehicle accidents. The data also showed that traffic accidents were the source of a large portion of the total number of serious disabilities and fatalities.

The study categorized injuries by industry and occupation. As an occupational class, truck drivers were found to have a substantially high risk of fatalities; however, they had significantly fewer non-serious injuries. The reverse was true for passenger cars. They were found to have fewer fatalities, but almost double the number of non-serious injuries. The researchers concluded that the size and weight of trucks protect occupants in slower-moving collisions with other vehicles. However, because trucks are prone to jackknifing and overturning, truck drivers are more likely to experience a fatal injury. Besides the high fatality rates, trucker drivers were discovered to have workers’ compensation claims of longer duration and higher average cost.

Other occupational categories that generated a high number of expensive workers’ compensation claims as a result of vehicle accidents were salespersons, messengers, and collectors. It is important to realize that these were actual claims, and not rates of injury per worker. This means that jobs that have traditionally been considered unlikely to cause worker injury carry more risk than originally believed.

The data also indicated that employees involved in vehicle accidents had a significantly higher rate of permanent total disability and workers’ compensation death claims than all other types of claims combined. The average severity of temporary total disability, permanent total disability, and fatality was greater for vehicle claims than for non-vehicle claims.

The predominant cause of injury in workers’ compensation claims resulting from vehicle accidents was neck sprain and neck pain, which accounted for 15 percent of all vehicle claims. However, these claims made up less than two percent of the overall number of workers’ compensation claims.

When examining the cost of vehicle accidents to employers, workers’ compensation payouts represent only a small part of the expense. The Network of Employers for Traffic Safety studied the combined cost of motor vehicle accidents to employers in 2000. The researchers found that medical expenses amounted to $7.7 billion, sick leave, life and disability insurance benefits totaled another $8.6 billion, while workers’ compensation claims costs approximately $2 billion for employers.

Vicarious Liability: Your Employees Could Cost You!

Respondeat superior” is a Latin phrase that translates “let the master answer.” This is legal jargon relating to the breadth of the employer’s responsibility for the actions of his employees. Literally, and in basic terms, any injurious or wrongful act of an employee within the course and scope of his employment creates liability for the employer (the master). This is commonly known as “vicarious liability.”

An employer’s liability for injury or damage caused by employees is considered “vicarious” because the act was not committed by the employer, but by individuals for whom the employer is responsible. Just like a parent is responsible for the actions of a child, even if the parent had no knowledge of what the child was doing, so too is the employer responsible for the employee’s actions.

When crews are spread over several job sites, the employer loses some direct control over the actions of the dispersed employees; however, he is not relieved of his responsibility for the actions or inactions of these workers. The “master” will be required to financially stand up and answer for any injury or damage caused, even though he may not have been aware of those actions.

Within the framework of construction operations, the employer is obviously responsible for any work done incorrectly or poorly. For example, if an employee of a plumbing contractor does not properly cement or solder a pipe, leading to severe water damage from a break at the connection point, the employer is expected to pay for the damages.

Beyond simply being vicariously liable, the employer has the potential to be accused of “negligent entrustment.” Negligent entrustment can be asserted when an employer allows an unqualified person to use a dangerous instrumentality. Construction sites teem with dangerous instrumentalities; from items as simple as nail guns and power saws, to man lifts, grading equipment, and trenching equipment. Employers owe a duty to the employee, others on the job site, and even the general public to affirm an employee’s ability to safely and correctly operate equipment necessary for their job.

To avoid breaching this duty and allegations of negligent entrustment, the employer must test employees to confirm they are adequately trained to operate the equipment they are expected to use. This can be accomplished by observing the employee’s use of the equipment and correcting misuse. Observation and training should be done by a highly trained supervisor or by the supplier. The training must include detailed safety instructions and “what-if” scenarios. Once the employee has been “cleared” to use the equipment, continued observation is necessary to ensure the employee doesn’t become careless.

A common response to recommended training and testing is, “We don’t have time for that.” This may be true, but if you don’t have time to train, do you have time to go to court? Also, do you have the funds to pay the damages? Successful negligent entrustment suits often involve punitive damages that could drastically increase the cost for that particular incident.

Vicarious liability and charges of negligent entrustment aren’t limited to your employees. You may also face liability for the actions of entities or individuals to whom you sub-contract work. Making sure you hire qualified and properly insured subcontractors is of vital importance.

You, as the saying goes, are your employee’s keeper. Not due to lack of trust, but because you are ultimately responsible for the results and consequences of their actions. Choosing, training, and monitoring your employees and subcontractors will allow you to avoid or at least minimize many of the potential problems.

Limiting Your Liability for Summer Employees

According to the U.S. Department of Labor, 2.3 million workers between the ages of 16-24 years of age were hired for summer employment. On average, one of these summer employees will be injured on the job every five seconds. Most of these work related injuries are both needless and costly to the employer.

The three main causes for the majority of these injuries are due to inexperience, lack of training and inadequate supervision. There are a number of proactive steps that employers can take to limit their exposure and reduce their liability.

Steps to Take Beforehand

Business owners would be wise to develop safe working practices for summer help. Here are some simple but practical steps you can employ to reduce your costs from job related injuries this summer:

  • Ask yourself what hazards the summer worker will be exposed to, including any pertinent risks outside the immediate working area.
  • Consider carefully the personnel who are to be involved in the training process and ensure they are well versed in the training procedures.
  • Always try to assign an experienced worker as a supervisor and ensure they keep a watchful eye on the summer worker over the first several days.
  • Make sure that any equipment to be used is examined and operational beforehand. Ensure that all legally required equipment safety guards are in place.

Take the Time to Give an Adequate Safety Orientation

Even before on the job training begins, give all your new staff a safety orientation. Here are some of the most important points to cover:

  • Appoint someone to act as a safety coordinator to explain the applicable federal and state safety laws.
  • The safety representative should stress and encourage new employees to ask questions about any aspect of the job they don’t understand.
  • Ensure that your summer workers do not hesitate to report unsafe conditions or hazards and to whom.
  • Stress that newly hired workers should not engage in any job activity where they haven’t been properly trained. Emphasize that they must always think safety first.
  • Inform new workers not to leave there work area unless they’ve been told to do so. Describe and show the locations of first aid kits, emergency alarms and exits, fire extinguishers, emergency alarms, eyewash stations, and how and where to obtain medical help.
  • Instruct all workers using hazardous equipment or processes to always use required protective gear such as gloves, hearing protectors, safety visors, and hard hat or safety shoes.

Provide Thorough Training

By taking the time to train your summer workers with good training techniques, you can dramatically reduce the risk of injuries. Here are few points to keep in mind:

  • Assign an experienced worker to give the worker their full attention until fully trained.
  • Provide detailed instructions on how to perform all aspects of the job and encourage them to ask questions.
  • Demonstrate how each task should be performed and repeat it until understood. Observe how the worker performs the task and correct any mistakes.
  • Teach the worker how to properly lift heavy items, use ladders safely and how to avoid injury from activities involving repetitive actions.
  • Monitor the worker’s progress in the first few days as this is the time when most injuries occur.

By being proactive in orienting your summer workers, you can greatly reduce your liability exposure to work related injuries. Training takes a little time but it’s time well spent.

Identifying Environmental Exposures Is Critical to Managing Risk

Environmental claims are often unpredictable and despite the fact that associated liabilities can easily cripple a business, most contractors underestimate their potential magnitude. Without sufficient insurance protection, the consequences of such claims can range from costly business interruption to bodily injury and/or property damage lawsuits. The best way to account for this unpredictability is to manage the risks that can lead to environmental claims.

The only way to develop an effective risk management strategy is by conducting a thorough site pollution assessment to determine the various levels of exposure.

Time is a critical factor in this type of assessment. Exposures can exist from both past and future pollution release events. Of the two, past exposures can be more easily qualified and managed. Commonly referred to as “legacy exposures,” these previous events are the known/unknown issues associated with the history of a site. Some typical legacy exposures include:

  • ·         Accumulations of small discharges
  • ·         Inappropriate storage and handling practices
  • ·         Poor structural integrity
  • ·         Use of pesticides and herbicides

Legacy exposures may be currently dormant, but can re-emerge during site development, or operation expansion. They can even remain inactive on the property being developed while surfacing in neighboring properties. Such exposures could also be former release events that posed minimal risk initially, and required little remediation. However, now they require additional cleanup. Or the added remediation of these events could also be the result of a change in regulatory standards.

The second level of exposure results from the possible future occurrence of a pollution release event. Known as “operational exposures,” these risks can trigger a major cleanup effort, as well as bodily injury and property damage loss. These events can be sudden and easily identified, or they can be the outcome of a gradual process that has gone unnoticed.

The preferred way to manage these exposures is by transferring risk via an environmental insurance policy.  Environmental insurance should be part of the risk management strategy of real estate owners, facility operators, and any other party with a financial interest in a site. An environmental policy can be written to cover only legacy concerns for transactions where there is a risk transfer from seller to buyer. It can also be written to cover only operational risks for a leased location, or if the insured feels that the site history does not warrant coverage for legacy events. Additionally, policies can also be crafted to provide full coverage for a single site or multiple locations.

When Is It Sexual Harassment and What Can Be Done to Prevent It?

Most employers know that sexual harassment is a form of discrimination that violates Title VII of the Civil Rights Act of 1964. The legal definition of sexual harassment is “unwelcome verbal, visual, or physical conduct of a sexual nature that is severe or pervasive and affects working conditions or creates a hostile work environment.”

While this definition may seem clear cut, the issues surrounding what constitutes sexual harassment are not. One of the most difficult aspects of examining a sexual harassment charge is deciding whether or not the conduct in question was truly harassment, and not just an innocent exchange between consenting adults.

There are two scenarios, that when they exist, are a definitive sign of sexual harassment:

1. Hostile environment – This is the most prevalent type. A work environment becomes a hostile environment when an employee is made so uncomfortable by a pattern of repeated, unwanted behavior that they cannot perform their job.

2. Quid pro quo – This Latin phrase literally means “this for that.” Quid pro quo occurs when a supervisor, or other person acting with authority, withholds, demands, or promises a benefit if the employee submits to unwelcome sexual conduct.

Keep in mind when trying to determine if an employee’s/supervisor’s actions constitute harassment; you have to view the conduct in question from the victim’s perspective. The victim determines whether the conduct is severe and pervasive enough to create a hostile environment. The harasser’s intentions do not play a role in the matter.

If there are recurring incidences of employees making sexual harassment charges in your organization, it is probably not a question of supervisors being unaware of inappropriate behavior. Rather it’s a matter of supervisors not taking action when they see inappropriate behavior. Failure to act is far more common than you may think. It is usually the result of a supervisor feeling unsure as to whether the behavior was really unacceptable, or not knowing the proper way to confront the parties involved.

The best way to remove these hindrances is to:

· Establish a sexual harassment policy that sets forth what actions are acceptable, what actions are considered sexually threatening, and what steps will be taken if anyone is found to be in violation of company policy. Once you have clearly defined your policy, document it and provide a copy to each employee. All employees should sign a disclosure that says that not only have they read the policy and understood it, but they also understand the consequences for failing to uphold it.

· Provide training – Supervisors should be given appropriate training in the correct manner of investigating a charge of sexual harassment including the types of questions to ask, how to file a written report, and to whom the report should be given.

It is also a good idea to be proactive in avoiding formal confrontations by periodically walking around and talking with employees. Many times an informal conversation can tip you off to a potential powder keg.

Top Tips to Streamline the Premium Audit Process

Are you due for a workers’ compensation premium audit? Audits are how insurance rates are determined, and it’s possible that an audit will uncover information that can actually save you money. In any case, it pays to be prepared. These five tips can help you get ready.

  1. Let your broker know when there are changes in your staffing, payroll or areas of operation. This is important not just at audit time but all the time. Your rates are based on variable rating information, including the number of employees, job classifications, the states in which you operate, etc. Updated information results in more accurate premium assessments.
  2. Get your records ready. Your auditor will need to see records such as federal and state tax returns, ledgers, checkbooks, contracts and employee or contractor tax documents. If you prepare your records in advance, you’ll speed up the audit process.
  3. Make sure you break out various types of compensation in your records. For example, to set your premium, your broker considers pay but not contributions to employee benefits packages and other perks, so it’s important to make sure your records are clear on the various types of compensation. Also make sure overtime pay is clearly defined since it’s classified as regular pay for workers’ compensation insurance purposes.
  4. Ensure that contractors have their own insurance. This is important not only from an audit standpoint but from a liability prospective as well. If an uninsured contractor has an accident while performing work on your behalf, you can be held liable. If an audit identifies contractors for whom you don’t have certificates of coverage, you can be charged for their premiums.
  5. Remain on hand to answer questions. As your auditor reviews your material, he or she may have questions or need additional data. If you are available to provide answers, your audit will be completed more quickly.

By following these tips, you’ll be more prepared for your workers’ compensation premium audit. A fast, efficient audit process can save time for both you and your auditor, so it pays to be prepared.

Returning Employees to Work Has Legal Implications

When making the decision to return an injured employee to work, there are several significant legal issues that must be considered as a result of both state and federal law.

The first consideration is your state’s workers’ compensation laws. While a common objective of workers’ compensation laws is to facilitate the injured worker in returning to a productive job, not all states approach this goal in the same manner.

Your state’s approach probably falls into one of the following three categories:

  • States that provide for a specific number of weeks of rehabilitation and a limited amount for training for the injured worker. After training is complete, the worker is considered rehabilitated. This training component also limits the employer’s liability to find another job for the claimant.
  • States that are considered defined benefit states. A worker is paid for his temporary total disability. If disability reaches a predetermined percentage of body loss, however, the employer can issue a lump-sum payment and close the case, whether the worker can return to work or not. Rehabilitation is a minor part of this approach.
  • States that use loss of earning power as qualification for benefits. Once a worker is injured, his workers’ compensation benefits will continue for life unless he is proven to have an earning power. In these states, the employer at the time of injury must offer a job to the injured employee if one is available within the employee’s physical restrictions. If this is not possible, the law requires that rehabilitation efforts begin.

The Americans with Disabilities Act (ADA) also presents certain legal considerations concerning the manner in which an injured employee is returned to work. The first consideration is regarding the collection and maintenance of the injured employee’s medical information.

The ADA requires employers to collect this information to determine how to accommodate an employee’s disability and whether the employee is capably of performing a specific job. However, the ADA also mandates that employers:

  • Treat this information as a confidential medical record.
  • Maintain this information on separate forms and keep the forms in separate files.
  • Not use this information for any purpose that is inconsistent with the ADA.

There are also specific rules regarding the disclosure of such information. Supervisors and managers may be informed about necessary restrictions and accommodations arising from the disability. In addition, first aid and safety personnel can be informed if the employee’s condition may require emergency treatment.

Another key consideration under the ADA is whether or not the returning employee is eligible for a particular job. The law says that if an employee can perform the essential parts of a job, they are eligible, even if certain minor aspects of the job cannot be performed. Employers are required to make reasonable accommodations as necessary so that the employee can perform the job. This is what is commonly referred to as a “light-duty” assignment.

Decisions regarding necessary accommodations must be accomplished through a joint process involving the employer, employee, and the employee’s doctor. A company refusing to make reasonable accommodations is at risk for a lawsuit. A worker who refuses reasonable light-duty work risks having their benefits or employment terminated.

Control Workers’ Comp Costs by Lowering Your Experience Modifier

If you are looking for ways to keep your workers’ compensation insurance costs under control, it’s a good idea to take a look at your experience modifier. In fact, tackling your experience modifier is generally a far more effective method of lowering your costs than shopping around for cheaper workers’ compensation coverage. That’s because the experience modifier is used to calculate your individual rate.

However, many employers don’t fully understand how experience modifiers work. They don’t completely understand how lowering it can help them drastically reduce workers’ compensation costs. Let’s take a closer look.

What is an experience modifier?

The experience modifier is a formula insurance companies use to predict losses that an employer is likely to incur. To arrive at the experience modifier, the insurance company considers losses over a three-year period in history, not including the current policy period. It takes into account not only amounts actually paid as claims but also estimates of future payments for medical treatments or compensation that will be paid to make up for lost wages.

Your experience modifier compares your actual losses with the expected losses for employers operating similarly sized companies in your state and industry. If your experience modifier is 1.00, that means your losses match the average rate. A modifier that is higher than 1.00 reflects higher losses, while a modifier less than 1.00 means lower than expected losses.

Your experience modifier is used to calculate your workers’ compensation insurance premiums, so the lower your modifier, the less you’ll pay. Let’s take a look at ways to lower your experience modifier.

Toward a lower experience modifier

Here are a few tips on lowering your experience modifier:

Create a safer work environment. Since your experience modifier is derived from your workers’ compensation claims history over a three-year period, the most obvious first step is to create a safer work environment. A workplace focus on safety is a great way to improve morale and help keep costs down. Some companies form safety committees to find new ways to reduce workplace injuries and to provide training that helps employees stay safe.

Return employees to work as soon as possible. Another excellent way to keep costs down is to consider a return-to-work program for injured employees. Remember, workers’ compensation claims involve not only medical bills but also claims for lost wages. In many cases, injured employees who are not yet able to return to their former jobs can come back to perform light duty jobs while they complete their recovery. This helps lower claims costs. It’s a good idea to work closely with physicians who specialize in workplace injuries since they can more efficiently treat your employees and may have more experience authorizing returns to work for light duty assignments.

Hire the right people. Another long-term strategy for lowering your experience modifier is to implement good hiring practices. For example, you may want to consider a candidate background check and drug screening program. Employees who use drugs are far more likely to be injured on the job, lowering morale and driving up your costs. It’s always a good idea to be selective about whom you hire, and the likelihood of future on-the-job injuries is one more factor to consider.

The bottom line

When workers’ compensation insurance prices rise, it’s tempting for employers to shop around for new coverage. But the fact is, employers themselves control a major factor in determining rates: the experience modifier. Take control of your workers’ compensation costs by taking steps to create a safer work environment, return employees to work and hire the right people. Not only will you improve operations and employee morale, you’ll save money too.

Psychosocial Factors in Returning to Work

We all know that persistent pain from work-related injuries affects an employee’s attitude about returning to work. Unfortunately, the psychological ramifications of chronic pain can also result in prolonged legal action, increasing legal fees, large settlements, and ultimately, failure of the employee to return to work. So, how can we prevent chronic pain from escalating workers’ compensation costs?

In a study titled Integrating Psychosocial and Behavioral Interventions to Achieve Optimal Rehabilitation Outcomes that appeared in the December 2005 issue of the Journal of Occupational Rehabilitation, researchers studied the psychological factors that impede an injured worker in returning to work:

  • Obsession – The persistence of the pain becomes so overwhelming that it is the only thing the employee thinks about.
  • Fear – The employee fears the possibility of becoming re-injured, which increases their current pain. As a result, the possibility of another injury and resulting disability cripples the employee psychologically and causes them to put off returning to work.
  • Perception – When an injured worker has been on disability leave for an extended period, they may feel that co-workers believe they are faking their pain. This causes uneasiness about returning to work and facing co-workers.
  • Self-fulfillment – If an employee believes they are not physically capable of returning to work because of the severity of their pain, this can lead to a failed transition back to the workplace.

In addition to internal factors, researchers noted that there are external psychosocial issues that can impact the injured employee’s desire to return to work.

  • Co-worker support – When injured employees feel there is a lack of social support to help them transition back, they delay returning to work.
  • Job stress – Employees who believe that the stress level at work will intensify their physical pain tend to remain on disability.
  • Workplace attitudes toward disability – Injured employees who feel that the general attitude about disability is that it is a way to “milk the system” sometimes delay returning.

The researchers concluded that understanding the significance of the internal and external psychosocial factors on the employee’s successful transition back into the workplace is critical to the design of return to work programs. First-line supervisors should be trained to detect if an employee is experiencing any of the psychosocial risk factors, as well as how to eliminate or lessen the impact of those risk factors.

Proper Treatment of Injured Employees Is an Important Element of Successful Return-to-Work Programs

In a study titled It Pays To Be Nice: Employer-Worker Relationships and the Management of Back Pain Claims, published in the February 2007 edition of The Journal of Occupational and Environmental Medicine, Richard J. Butler PhD; William G. Johnson PhD; and Pierre Cote DC PhD discovered that workers’ satisfaction with their employer’s treatment of their disability claim is more important in explaining successful return-to-work outcomes than satisfaction with health care providers or expectations about recovery. The researchers added that dissatisfied workers have worse return-to-work outcomes because they are more likely to have lost time claims and multiple instances of joblessness.

The study found that the 64 percent of workers polled who were satisfied with their employer’s response had a medical claim only, while the 56 percent polled who expressed dissatisfaction had lost time claims in addition to the medical claims. For those workers who do have at least one lost time claim there is a lower likelihood of frequent injury-related absences. Only 32 percent of those satisfied with their employer’s response had multiple episodes of injury related absences, as opposed to 58 percent of those dissatisfied with their employer’s response who had multiple absences.

Maintaining a proper attitude toward injured workers is often a Catch-22 in most organizations. On the one hand, efforts to retain a skilled workforce are important because they give workers a greater sense of security, which is typically met with greater commitment to the success of the organization. However, there are concerns about how productivity is affected by reintegrating workers who are not yet fully recovered. That concern can result in instances where injured workers are treated with suspicion, and the validity of their claims questioned.

The pressure created by an injured worker on productivity and workflow is immediate. Although maintaining a good relationship with the injured employee will ultimately benefit the company, it can be difficult to keep this long-term goal in mind with the imminent demands of production looming. What usually happens is that the company ends up conveying to the injured worker that maximizing profits takes priority over their well-being.

This type of response on the part of their employers can alienate injured workers, and typically results in the worker extending the duration of the absence, or having more frequent reoccurrences. The overall outcome is increased workers’ compensation costs, not to mention the costs to train a new employee.

To combat the problem of alienation, organizations need to train first line supervisors in the empathetic treatment of injured workers. Supervisors need to learn how to express to the injured worker how much they are missed without making it seem as though their absence is only regarded for its economic impact. If the worker truly feels that they are needed in the workplace because they are a vital part of the team, and not because someone else has to cover for them, they will be motivated to return as soon as possible. The best way to give the injured worker this sense of belonging is through frequent expressions of sincere regard and regular communication that keeps them in the loop. If the return-to-work program incorporates these two elements, it will accomplish the goal of reducing the probability of lengthy lost time.

Risky Business: Why You Need Employment Practices Liability Insurance

Running a company can be a risky business. According to the Department of Labor, the amount workers received from employers due to discrimination claims rose nearly 78% between 2001 and 2006. A total of more than $51 million dollars was awarded to employees who pursued claims in federal court.

You may have seen news stories about huge jury awards in workplace discrimination claims. It happens every day, and every business is vulnerable. Here are just a few examples:

·   Thirteen current or former computer company employees claimed employment discrimination on the basis of race and national origin. Employees claimed they were treated unequally and subjected to a hostile work environment. Amount of settlement: $635,000 (salary increases, enhanced promotional activities).

·   Eight employees filed a class action suit alleging sex discrimination by their employer in the handling of wages, promotions, pregnancy leaves and other conditions of employment. Amount of settlement: $600,000 (plus $5 million in legal fees).

·   A senior regional attorney sued a securities dealer claiming age discrimination and retaliation. He claimed he was unfairly terminated for advice he gave to a co-worker regarding his employment rights. Amount of verdict: $443,000.

All businesses are at risk from issues related to employment practices. It can come up during hiring situations if you don’t hire someone who then assumes you were discriminating. It can happen if you terminate an employee who then decides he or she was treated unfairly. Employment-related lawsuits are filed every single day, and up to half of all businesses will face a lawsuit at some point. Is your business prepared?

How can you protect your business?

As an employer, you do everything you can to treat your employees fairly. However, you can be held liable for the actions of your other employees or even vendors and customers. And with new employment-related regulations being added to the books frequently, it can be difficult to understand exactly what you are expected to do.

It’s important to make sure you remain in compliance with laws governing treatment of employees. But there’s an added layer of protection you can obtain: employment practices liability insurance, or EPLI.

What EPLI covers

Employment practices liability insurance can protect your business against claims made by potential hires, employees currently on your payroll and terminated employees. With a good EPLI policy, your company is protected against claims of:

·   Wrongful termination

·   Employment-related emotional distress and invasion of privacy

·   Defamation

·   Retaliatory/constructive discharge

·   Sexual harassment and discrimination

·   Workplace torts such as slander

EPLI coverage generally includes the cost to defend against the charges plus any damages you are ordered to pay. Depending on your business needs, it might make sense to purchase EPLI coverage as part of your company officers’ liability insurance since company officials can be named in lawsuits against the business.

Learn more about EPLI

Your business insurance agent can answer your questions about EPLI and recommend the coverage that is right for you. Your agent can also discuss how employment-related lawsuits can affect your business by assessing the risk typically associated with your industry.

Remember, employment-related claims can affect businesses of all types. Even if you are just starting out, you could be the subject of a discrimination suit if someone you interview but fail to hire feels that he or she was treated unfairly. And even if you do everything right and comply with all federal, state and local regulations, you can still be held liable for the actions of your employees, vendors or customers. EPLI can provide much-needed protection – and welcome peace of mind.

Be Proactive to Minimize Risk of Employment-Related Lawsuits

If you own a business, the last thing you want to face is a lawsuit filed by a current or former employee. In addition to the obvious financial risk involved in defending a case, a lawsuit can result in lower employee morale and a damaged reputation in the community. Even if you win your case, you’ll lose time and money in the process.

For these and many other reasons, it’s a good idea to be proactive about avoiding employment-related lawsuits. How do you do it? A good approach is to familiarize yourself with situations that can prompt employees to file suit. When you understand the common legal pitfalls, you’ll be in a better position to avoid them and protect your business.

Understanding why employees sue

If you’re like most employers, you try to treat your employees fairly. But complicated situations can arise. And remember, your perceptions may not match your employees’. Here are some issues that can result in employment-related litigation:

  • Employees feel they have no voice: If you provide employees with a way to express opinions or address problems, you’ll generally have more motivated employees and may also reduce exposure to lawsuits.
  • Employees aren’t in the loop: If your business is going through changes, it’s a good idea to keep employees in the loop. Otherwise, their expectations may not match future business plans, which can result in hard feelings.
  • Managers don’t understand regulations: There are hundreds of employment-related regulations governing the relationship between employers and employees. Make sure you understand them and abide by them.
  • Employees are dissatisfied: When employees are unhappy, they aren’t as productive, and they may also be more likely to resort to litigation to express their unhappiness. Good morale can reduce exposure to litigation and improve business performance.

Avoiding situations that may create a lawsuit

Even employers with the best intentions can make mistakes that result in legal action. There are many regulations that can lead to legal pitfalls, especially in the areas of hiring, managing and firing employees. Employment-related regulations are not only numerous, they change from time to time, so keeping up with them can be challenging, but it’s vitally important. Here are some of the situations you should be aware of as an employer:

  • Promotion opportunities: Be sensitive to employee perceptions when you reward good performance or hold employees accountable for short-comings. If a court finds you created barriers to advancement for a protected class of employees, you could be held liable.
  • Compensation issues: Employee wage and hour regulations can be complex. Make sure you understand them and follow them to the letter. If you’re unsure, it’s a good idea to seek expert advice.
  • Harassment and discrimination: Employers have a responsibility to ensure a harassment and discrimination-free work environment. A sound harassment and discrimination prevention policy is essential.
  • Accommodation issues: Employees or potential hires who are disabled or who have accommodation needs due to religion are a protected class. It’s important to understand the regulations around accommodation.
  • Leaves of absence: Employers in certain locations and those who employee more than a specific number of employees should make sure they comply with state, local and federal regulations on leaves of absence.

How you can reduce legal exposure for your business

We’ve reviewed why employees might sue and some of the reasons employers get into trouble. The next step is to formulate a strategy to reduce risk for your business. A good first step is to formalize a method to address conflicts. If you have an employee handbook, outlining a way to address problems at work as a policy is a good idea. Another effective step is to implement harassment and discrimination prevention policies and outline how incidents will be addressed.

Taking steps to reduce your exposure to employment-related lawsuits takes some time and effort, but in the long run, it’s worth the effort. Not only will these steps help you stay out of court, you’ll improve morale at your company.

Protecting Your Business from Employee Identity Theft

Your business could face big problems if one of your employees becomes a victim of identity theft. That’s an alarming fact considering the rapid growth of this costly white-collar crime.

How does identity theft among your employees affect your business? One of the provisions of the Fair and Accurate Credit Transactions Act is that an employer whose action (or lack of action) results in the theft of an employee’s information can be sued. As an employer, you should keep in mind that the workplace is the biggest source of identity theft.

Businesses should be concerned with more than just the lawsuits associated with employee identity theft. Reoccurring identity thefts lead to negative publicity – which can impact sales and significantly damage employee recruiting and retention efforts.

How can you protect your employees and your business? There are two things you should seriously consider: Offer identity theft coverage as an employee benefit, and tell your employees what they can do to reduce their chances of becoming a victim.

What does identity theft coverage give employees?

  • Insurance coverage: To help them get back on their feet after they’ve been a victim.
  • Credit monitoring: That alerts them when unusual credit changes take place.
  • Computer protection: Such as anti-spyware and wireless security.
  • Protection of personal information: Such as assistance with opting out of marketing databases, as well as tracking data in Social Security databases and financial databases.

What can you tell your employees about protecting themselves from identity theft? Start with the following checklist of do’s and don’ts.

Identity theft prevention do’s

  • Always shred sensitive information rather than just throwing it in the trash. (This is wise advice whether you’re at home or at work.) Things to shred include any confidential information – like credit card pre-approvals, credit card receipts, bank statements, etc.
  • Review your credit report regularly. Take the time to make sure it’s accurate. It’s also important to carefully check your bank statements every month.
  • It may seem like a hassle, but it’s a smart idea to have your financial mail deposited in a post office box rather than in your home mailbox.
  • Remove the mail from your mailbox as soon as possible to afford less opportunity for someone to steal it. Also, be sure to pinpoint when all your bills are supposed to arrive.
  • As elementary as it may sound, it’s important to do whatever it takes to keep your personal identification numbers (PINs) secret.

Identity theft prevention don’ts

  • ·  Obviously, you should never give personal information to anyone without a good reason for having it.
  • ·  Never carry your Social Security card or passport in your purse or wallet, and never keep them in their vehicle. Remember that thieves are very interested in your private information – just as they’re interested in your tangible valuables.
  • ·  Never put your address or driver’s license number on a credit card receipt.
  • ·  Never put your Social Security number or phone number on your personal checks.
  • ·  Never carry credit cards you don’t plan to use.

By helping employees keep their vital personal information from falling into the wrong hands, you’re doing your part to look after their financial health – and protect your business from a growing risk. Identity theft coverage as an employee benefit not only helps employees stay safer, it makes your business a more attractive place to work.

U R @ RISK for Employee’s Online Activities

Did you know your business is liable for how your employees use the internet while they’re on the job? Many business owners protect themselves by monitoring their employees’ email and internet usage, including instant messaging.

Some employers are reluctant to implement an email and internet oversight policy. But monitoring email communication and web surfing has become an important part of protecting your business.  

Suppose an employee at your business has been emailing inappropriate images or messages around the office, and these images make their way to a co-worker who finds them offensive. If that co-worker chooses to sue for harassment, your company could easily be held liable. Why? Because businesses can be held responsible for their employees’ activities while using company computers.

If your business had a monitoring policy in place that enabled you to review the emails going around the office (as well as your employees’ web surfing), you would have been able to take measures to stop the offensive email before it was sent.

Creating a monitoring program

Here are some useful tips to consider as you formulate your internet monitoring and usage policy:

·   Implement policies about what employees are allowed to send: Tell your employees never to write – or even forward – any material that could
be considered obscene, hateful, defamatory, offensive, harassing or otherwise inappropriate. This includes racist or sexist language and/or jokes.

·   Gain control over what can be accessed at your business: You have a right to ban questionable websites at your business. Forbid employees from viewing any sites containing sexually explicit messages or imagery, sites that are violent, or sites containing other content that may be considered inappropriate. Consider installing blocking software to stop access to these sites in the first place.

·    Disallow non-work-related web use while employees are on the job: It’s becoming increasingly common for employees to use the internet at work for non work-related purposes. This trend is only getting worse with the rise of social-networking sites like Facebook. Therefore, unless employees are on a break, it’s a good idea to insist that emails are being sent and web pages are being viewed for business purposes only.

·    Provide separate computers for off-the-clock purposes: Consider setting a few computers aside specifically for employee non-business use. Put them in a common area and allow employees to surf while on their lunch hour. Coupled with an internet monitoring program, this is an effective practice for many companies. (Just remind employees that your monitoring policy also applies to this non-business use.)

·    Communicate your monitoring policy to employees: A common pitfall of implementing an internet and email usage program is that many companies don’t tell employees about their policy. By not telling your employees, you’re actually increasing your exposure to employee lawsuits. Telling them you’ll monitor their email and internet use will help deter improper use.

·    Keep reminding your people about your internet policies: Once your policy has been communicated to employees, remind them about it regularly. It should be included in your company’s employee handbook. You might also want to consider having a reminder on your employees’ log in screen.

When you put effective internet and email policies in place, you’re taking a positive step toward protecting your company. It takes some time and effort, and communication must be ongoing, but it’s worth it to reduce liability exposure for your business.

Make Sure You’re Covered for On-The-Job Injury Claims By Temporary Workers

If you use workers from staffing or leasing agencies to supplement your workforce, how adequately do your current insurance policies protect your company in the event that one of these individuals is injured on the job?

If you’re covered under an Insurance Services Office, Inc. (ISO) commercial general liability (CGL) policy and your workers’ compensation and employers liability policies are written on National Council on Compensation Insurance (NCCI) forms with no additional coverage endorsements, you may not be as protected as you think. You should consider adding the Coverage for Injury to Leased Workers (CG 04 24) endorsement to your CGL policy.

A potential gap in coverage arises from the way the CGL policy defines “temporary” and “leased” workers. A leased worker is a person leased to your company through an agreement with an employee-leasing firm to perform duties related to the operation of your business. A temporary worker is a person furnished to you to fill in for a permanent employee on leave or to meet seasonal or short-term workload conditions. Under the terms of the CGL policy, “employee” includes a leased worker, but does not include a temporary worker. The distinction is important, because the CGL policy’s Exclusion e: employers liability, excludes from coverage bodily injury claims made by an employee of the insured.

Thus, if your CGL policy definitions consider the worker to be an “employee”-even though that worker is provided by a staffing agency-the policy will not cover any bodily injury claims by that worker. If the worker is not specifically substituting for a permanent employee who is on leave, or meeting a seasonal need or short-term workload conditions, the worker is not a “temporary worker” in the eyes of the insurer, and instead is considered your employee for purposes of Exclusion e. To be a “temporary worker,” that individual must have a specific end date to his or her employment with you. A temporary employee who is hired for an indefinite period of time simply does not meet the criteria stated above, and is therefore considered an employee, and subject to Exclusion e if they are injured on the job.

Adding the Coverage for Injury to Leased Workers (CG 04 24) endorsement to your CGL policy will help you fill this coverage gap. This endorsement states that the term “employee” does not include a “leased worker” or “temporary worker,” making the employers liability exclusion of the CGL policy inapplicable to the claims for injuries to a leased or temporary worker.

Another way to protect your company in lawsuits by injured temporary workers is to require the staffing agency that provides such workers to include the Alternate Employer Endorsement (WC 00 03 01 A) on its workers’ compensation and employers liability policy, and specifically schedule your company as the alternate employer. This endorsement will provide you with coverage as an alternate employer in the event the temporary worker files a tort suit.

Without the right coverage in place, on-the-job injuries to temporary workers can present a significant potential liability to your company. Examine your current CGL policy and arrangements with any staffing or leasing firms you use to make sure your company is protected.

Protecting Your Business from Workers’ Comp Fraud

Tempted to hire a private investigator to spy on employees claiming workers’ compensation? You’re not alone. Luckily, covert operations can be avoided by taking a proactive approach to preventing workers’ compensation fraud.

Here are some effective tips for shielding your business.

Watch for red flags

Knowing common signals of workers’ compensation fraud is an important step in protecting your business. Some red flags to watch out for are:

·   There are no witnesses of the accident (or the only witnesses are friends/family members of the injured employee).

·   It is difficult or impossible to reach the employee.

·   The employee changes his or her story about the accident.

·   The accident happened on a Friday afternoon but wasn’t reported until the following week.

·   The accident happened outside of the employee’s normal working hours.

Not all claims that occur under these circumstances are fraudulent, but it may be worth it to take a second look.

Make safety a priority at your business
Creating a safer work environment not only lowers the chance of accidents, it also reduces the opportunity for employees to fake an injury. Your business should frequently conduct safety inspections of all work areas and any equipment. Remove hazards immediately, and be sure to document the repairs you make.

Thoroughly investigate workplace injuries
Take the time to review any surveillance videos of the area where the incident allegedly took place. Also, be sure to interview all witnesses shortly after the accident happens – and take any rumors of dishonesty or fraud seriously.

Hire wisely
People who lie on rГ(c)sumГ(c)s are more likely to lie about workplace injuries. Make it a routine part of your hiring process to conduct background checks on all applicants. And don’t neglect to verify their references and any other information included on their applications and rГ(c)sumГ(c)s.

Clearly communicate your workers’ compensation policies
It’s important to discuss your workers’ compensation policies with all employees. Tell them what to do when an injury occurs, and explain that insurance costs affect the amount of money available for raises and bonuses. Also, make sure you tell your employees that workers’ compensation fraud is a serious crime that will lead to termination and prosecution. Post fraud awareness posters in conspicuous locations explaining what fraud is and what its consequences are.

Implement a return-to-work program
Workers’ compensation fraud is less inviting when employers have transitional duty for injured employees. Make sure your employees know that if they get injured on the job, your business will work with the doctor to help them return to work as soon as possible.

Stay in touch
Don’t lose contact with employees who are off work because of an on-the-job injury. Injured workers who are hard to get a hold of might be committing workers’ compensation fraud. Contact them periodically, and document each contact (whether you were able to reach them or not).

Get signed statements when employees leave
In your exit interviews, obtain signed statements from exiting employees stating that they have or have not had any unreported injuries at work. This will go a long way in discouraging post-termination claims.

Workers’ compensation is a major expense for most businesses, and workers’ compensation fraud makes it more costly for everyone. It pays to take a proactive stance to reduce workers’ compensation fraud at your company.

Reducing the Risk of Workers’ Compensation Claims Begins with the Hiring Process

Workers’ compensation claims can occur in any workplace. While employers understand that solid safety protocol can reduce the incidence of these claims, many don’t realize that steps taken during the hiring process can also have some impact on managing this liability. Not taking the time to thoroughly interview applicants to determine if they are a good fit for the job and the company can result in hiring workers who might create problems later on, like filing too many workers’ compensation claims.

Although federal and state laws prohibit certain questions being asked during the interview process, there are techniques you can use that will help you decide if the applicant might be the type to file problem claims. Begin by reviewing the applicant’s resume prior to the interview. Pay careful attention to gaps in employment history. During the interview, ask the applicant to explain the reasons for these gaps. Also ask the applicant about his or her attendance record during previous jobs.

Follow up with open-ended questions to see what the applicant would do in certain situations, such as resolving conflicts with managers, subordinates or co-workers. Quiz the applicant as to what he or she perceives to be the procedures necessary to effectively perform the essential functions of the applied-for job in your company.

Inform the applicant that all new hires go through a fitness-for-duty physical, which includes questions about medical history. Watch for any signs of discomfort like a change in facial expression or body movement.

Administer a skill and/or personality test to assess competency and work ethic. Whatever screening tools you use, establish reasonable criteria and apply them uniformly for all applicants.

Obtain written consent from the applicant to conduct a complete background check. As part of this:

·   Verify past employment history and follow up with references.

·   Conduct a criminal background check. Use a public records service to uncover any criminal convictions.

·   Check on past job-related injuries, workers’ compensation claims, substance abuse and safety records.

·   Contact the schools and universities listed on the candidate’s job application or resume to verify education and certifications. If the applicant listed having a professional license, call the issuing organization to verify.

·   For candidates whose job duties would include driving a motor vehicle, compare the results of the applicant’s official motor vehicle report with the answers provided on the job application.

If you do extend a job offer, make it conditional, contingent upon the candidate’s ability to perform the functions of the job. You can withdraw a job offer, if in the opinion of a licensed medical doctor, the prospective employee poses a direct threat to their own, or others’, health and safety. However, in determining the suitability of an offered job, make sure you make all reasonable accommodations necessary for those candidates subject to the Americans with Disabilities Act.

Thorough job interviews not only help you to hire the right person for the job…they help you hire the right people for your company.

Avoid Unnecessary Legal Involvement in Workers’ Compensation Claims

The workers’ compensation system was designed to provide a method for efficiently returning injured workers to their jobs as soon as possible. Getting lawyers involved in this process when it isn’t necessary slows it down, makes it far more inefficient, and adds costs.

The best way to avoid the need for legal involvement is for the employer to take an active role in the workers’ compensation process. Here are a few ways to do that:

·   Tie managers’ performance evaluations to their concern for safety. The total quality management approach is to tie safety to a manager’s raise, bonus or promotion. In that way, it become financially advantageous for managers to be safety-conscious and reduce the possibility of workers’ compensation claims.

·   Designate an employee to call injured workers once a week. This helps you troubleshoot problems before they escalate. For example, this call might detect that an injured worker has been receiving collection notices for unpaid medical bills, indicating that the compensation claim may not have been processed properly, and alert you to the need to call your workers’ compensation insurance carrier.

·   Report all injuries. Even if an employee insists that he or she isn’t seriously injured, report the incident to your insurer anyway. There may not be any ramifications from the injury now, but there could be in the coming months. If you don’t report an injury when it happens, the claim could be rejected as fraudulent later on when you do report it. This could cause the employee to hire legal counsel.

·   Monitor the progress of claims. There are many points at which a claim can become bogged down-the employee delays the first doctor’s visit, there’s a lag time in getting a report from doctor, the employee has to wait to see a specialist, etc. These all have negative effects on the progress of the claim. An employer can improve the efficiency of the process by examining injury records, writing down dates and identifying excessive delays. Reducing delays and maintaining continuity in care will keep the process flowing and eliminate the need for the employee to find an attorney to intervene.

·   Don’t alienate employees. Many disgruntled employees file workers’ compensation claims because they feel the company owes them something, or to get even for poor treatment in the workplace. Most of these revenge claims result from conflicts that could have been avoided if a supervisor had spent more time empathizing with employees.

Some workers’ compensation claims will require the involvement of legal professionals, but if you can keep these occurrences to a minimum, you’ll help keep your workers’ compensation costs in check.

D&O Coverage Belongs in Your Company’s Insurance Portfolio

Does your current insurance portfolio adequately protect your company and its most key people against significant financial losses? All companies understand the importance of a general liability policy, for example, to cover customer injuries that occur on the business premises. And every business knows it’s important to protect the business premises and its contents against the risks of fire, flooding, vandalism, etc., through a comprehensive property and casualty policy. But many overlook an entire area of potential liability and loss that can result when claims are made that are based on the actions of its directors and officers.

Directors and officers (D&O) liability insurance protects against financial losses resulting from claims based on allegations of wrongdoing by these individuals when acting in their corporate capacities. Both publicly traded and privately held companies should consider the coverage.

What kinds of claims fall under the scope of such policies? Consider these-

• Claims by shareholders/investors alleging misrepresentations, inadequate disclosures, conflicts of interest, misdealing and mismanagement.

• Claims by competitors alleging bad faith in business dealings, appropriation of trade secrets, and unfair or deceptive trade practices.

• Claims by customers based on dishonesty, sales disputes, and the like.

• Employment practices liability claims, including failure to hire, termination, discrimination and sexual harassment.

• Suits by government agencies, including those involving tax laws, securities laws, labor laws, violation of applicable business regulations, etc.

When claims such as these include allegations of a company’s directors’ or officers’ wrongdoing, that can bring them within the coverage of a D&O policy. For publicly traded companies, in 2006, 49% of claims covered under D&O policies were brought by shareholders, according to a survey by professional services firm Towers Perrin. Think of the well-publicized cases involving corporate giants like Enron and Worldcom, which alleged financial misdealing and cover-ups by corporate officers.

Private companies can also be hit by shareholder lawsuits. These companies do have investors, who can become disgruntled with management decision-making when their investment in the company does not turn out to be as good as expected. Also, the definition of a “security” can be a very broad term. But a key reason these firms need D&O coverage is the increasing number of employment practices lawsuits, brought by employees, alleging claims such as sexual harassment, discrimination, or wrongful discharge. A policy that couples D&O and employment practices liability insurance (EPLI) works well for these firms.

A claim against a company’s CEO, chief financial officer, vice president, etc.-whether based on allegations of misrepresentation, negligence, employment discrimination, or the like-has the potential to cripple an organization financially. Even if a claim does not result in a legal judgment or settlement, it will need to be defended, resulting in substantial legal costs to the organization.

A properly written policy will provide protection both to the company, and to the individual insured directors and officers. The personal assets of individual directors and officers-and thus those of their spouses and estates-can be at risk if the company is not in a position to indemnify them for any losses. Such a situation could occur if corporate bylaws or public policy would not permit indemnification based on the particular allegations, or if the company is in a bad financial condition, or even bankrupt.

Today’s insurance market offers D&O coverage at surprisingly affordable rates. Given the financial loss potential, it’s a coverage that any company should consider adding to its insurance portfolio.

Here’s Why Your Private Company Needs D&O Liability Insurance

If you run a small, privately held company, you may not think that you need the kind of insurance protection that larger, publicly traded companies have for their directors and officers. You would be mistaken. Directors and officers (D&O) liability insurance has a place in the insurance portfolio of just about any company.

D&O insurance is designed to cover claims based on the actions of a company’s directors and officers in their corporate capacity. Claims can be filed by shareholders/investors, competitors, customers, employees or government agencies. The cost of defending such claims can run high, and if a claim proceeds to judgment or settlement, the outcome can be financially crippling to a company.

Consider these “Top Ten” reasons for adding D&O liability coverage to the insurance protections you already have in place for your business:

1.   While private businesses may not trade company shares on a public exchange, they do have investors, who expect to turn a profit on the money they have invested. Today’s credit market makes it more difficult for deals to succeed, meaning that new business enterprises have a harder time getting off the ground. If investors lose their seed money, they may seek recourse against the fledgling firm’s top executives.

2.   Many private companies are established with the hope that someday, down the road, the business can go public. If and when that deal does happen, D&O can protect the founding entrepreneurs against claims by shareholders/investors that the sales price wasn’t good enough.

3.   Г‚ In private companies, directors and officers often are active, hands-on business executives. Because they are very involved in their company’s business operations, their actions are more likely to be called into question.

4.   Employment practices liability litigation claims of sexual harassment, discrimination, wrongful termination are growing in number. These types of lawsuits can result in staggering judgments and settlements. Hands-on management by a private firm’s key executives makes them easy targets for these types of claims. Combination D&O/EPLI (employment practices liability insurance) policies make sense for these firms.

5.   Private companies, especially in their early years, may not have the resources to hire specialized support staff or outside advisors for complex legal filings and other requirements. This makes them more susceptible to legal compliance claims brought by governmental agencies, on matters such as tax law, labor law, etc.

6.   Even when claims of wrongdoing, negligence or mismanagement are unfounded, they still need to be defended. Legal defense costs can quickly add up, straining the resources of a private firm.

7.   Directors and officers of private companies often have a great deal of their own wealth tied up in the firm. Therefore, the cost of defending, settling, or being held liable on a claim can have financial repercussions for that executive’s spouse, family and estate.

8.   D&O policies are best designed when they insure both the company, and individual directors and officers. That’s because there may be situations where the company cannot, or will not, indemnify the individually named directors/officers in a lawsuit. A company may not have the financial resources to back up the executive’s loss, or the corporate bylaws or public policy may prohibit it.

9.   The current insurance market has made D&O coverage more affordable than it has been in the past.

10.   Individuals may be reluctant to take on director/officer roles without the protection D&O insurance can provide. This may make it more difficult for a company to find the right people to serve in key corporate positions.

The right D&O coverage like any insurance protection you purchase for your company gives managing executives peace of mind, and the time to attend to running the core operations of their company which is, after all, why they went into business in the first place.

EEOC Issues Guidance on Discrimination Against Workers with Caregiving Responsibilities

The chances that an employee’s responsibilities to work and to family will collide have increased in the past few decades. Mothers are more likely to be employed than not, for example, and more individuals with aging parents have taken on caregiving roles.

Employees with caregiving responsibilities are not a protected group under federal workplace discrimination laws. Yet, the Equal Employment Opportunity Commission (EEOC) has released Enforcement Guidance under the title “Unlawful Disparate Treatment of Workers with Caregiving Responsibilities.” According to the EEOC, the guidance is not intended to create a new protected category, but to illustrate circumstances in which stereotyping of caregivers, or other types of disparate treatment against caregivers, might violate Title VII discrimination laws or run afoul of the Americans with Disabilities Act’s prohibition of discrimination based on a worker’s association with a disabled individual.

The guidance discusses seven broad categories of possible unlawful discrimination against caregivers. The bulk of the guidance is about gender-based disparate treatment of female caregivers. The guidance explains that employment decisions that discriminate against workers with caregiving responsibilities are prohibited if they are based on gender or another protected characteristic, regardless of how other workers in the same protected class, but without the caregiving responsibilities, are treated. For example, if women with children are routinely passed over for an executive training program while men with children are selected for the program, the fact that women without children also are selected for the program would be no defense against a sex discrimination charge.

Similarly, gender-based assumptions about a future caregiving role-such as asking young female applicants, but not young men, their plans for marriage and children-would be unlawful. Other examples in this category include assigning lower-level projects to a new mother, not making an offer which requires a relocation to a qualified woman with a family based on the assumption that she wouldn’t want to move, or assigning more weight to absences or tardiness due to caregiving responsibilities than to those due to other reasons.

The guidance recognizes discrimination against male caregivers, stating that stereotyping about men as caregivers can result in them being denied certain opportunities that female co-workers have, or in harassment. So, for example, refusing to grant a male employee’s request for leave for childcare purposes while granting female employees’ requests would be discriminatory.

The EEOC notes that because the law does not prohibit discrimination based solely on parental or other caregiving status, there generally would not be a violation if working mothers and working fathers were both treated in a similar unfavorable (or favorable) manner, as compared to workers without children.

Assumptions about the job commitment of pregnant women, or about their ability to perform certain physical tasks, can amount to pregnancy discrimination. The guidance warns against pregnancy-related inquiries and treating a pregnant employee who is temporarily unable to perform some of the duties of her job differently than workers who are temporarily restricted for other reasons.

The guidance also addresses discrimination against women of color, unlawful caregiver stereotyping under the Americans with Disabilities Act and subjecting employees with caregiving responsibilities to hostile work environments.

The EEOC guidance should put employers on notice to review their workplace policies to ensure that hiring, promotion and other practices do not, inadvertently, treat employees with caregiving responsibilities in ways that violate federal discrimination laws for protected classes of workers. Also, state, city and county laws should be reviewed, as these may impose additional requirements.

Workers’ Comp System Faces Many of the Same Problems As Health Care

Many of the same problems that plague the U.S. health care system are spilling over into workers’ compensation, including rising costs, an increased incidence of potential injuries brought on by an aging workforce and the obesity epidemic, and regulatory uncertainties. In a speech at the 62nd Workers’ Compensation Educational Conference, Robert Hartwig, president of the Insurance Information Institute (I.I.I.), outlined these and other challenges facing the workers’ compensation system over the next 10 to 20 years.

Hartwig first applauded businesses’ efforts that have radically reduced the frequency of workplace injuries in America. Successes on this front have-

·   Helped companies remain productive, by lowering the number of future lost workdays that result from permanently disabling injuries or fatalities.

·   Increased and preserved worker incomes-Seriously injured workers have lower lifetime earnings, a higher incidence of bankruptcy, and increased dependency on public assistance.

·   Maintained and improved the quality of workers’ home life-Seriously injured workers experience a higher incidence of divorce, substance abuse and depression.

Hartwig then turned his remarks to problems facing the workers’ compensation system-

·   The never-ending cycle of reform, fraud and abuse, which will be an endless driver of costs in the future.

·   The shift in balance between medical benefits and wage replacement-In 20 years, he predicted, 80-85 percent of workers’ compensation benefits will be medical, and only about 15 percent will be for wage replacement. As a result, the workers’ compensation system will face the same problems as the health care system, but even more so, because the workers’ compensation system doesn’t have the same tools to control costs, such as deductibles and copayments.

·   The aging workforce-Fatality rates for workers ages 65 and older are triple that of workers ages 35-44. The workplace of the future will require a complete redesign to accommodate the surge in the number of older workers.

·   The obesity epidemic-In 2006, the most obese workers filed twice as many workers’ compensation claims and had 13 times more lost workdays than healthy-weight workers.

·   Regulatory issues-Health care reform will be a major theme in the 2008 elections, as it was in 1992, when proposals surfaced that workers compensation be rolled into the general health care system. This could happen again.

Though this information is sobering, Hartwig urged businesses to use it to their competitive advantage and work to head off problems before they occur, and not wait until injury patterns emerge to take action. 

Driver Survey Identifies Practices That Can Significantly Lower On-The-Job Injury Frequency Rates

The best way to prevent fleet crashes and in the process lower injury frequency rates is to hire drivers based on their ability and past performance. This discovery comes from Liberty Mutual Group, which recently released the results of its annual trucker survey.

As part of the study, the company identified practices in seven key areas that contributed to lower injury frequency rates:

1.   Management Programs

·              Most companies that measure injury frequency rates have lower frequency rates.

·              Those companies that conduct driver surveys had frequency rates 18 percent lower than those that didn’t conduct surveys.

·              While most companies conduct injury investigations, those that use written injury investigation forms, ask for prevention recommendations, calculate injury rates, set injury rate goals and track injury rates by customer had a 13 percent lower injury frequency rate.

2.   Expectations

·              Four out of five companies have a written seat belt policy and close to 50 percent have both a written seat belt policy and enforcement activities. Those with both the policy and enforcement had a crash injury frequency rate that was 33 percent lower than those that didn’t use both.

3.   Selection

·              Four out of five companies use a hiring checklist to document each step of the hiring process. Those using a hiring checklist had 30 percent lower injury frequency rates.

·              Four out of five companies have job descriptions that include essential job functions. Companies including essential job functions in the job descriptions had an 11 percent lower injury frequency rate.

·              Four out of five companies designate a medical provider. Those using designated medical providers had slightly lower injury frequency rates.

4.   Monitoring Performance

·              Companies that provide technology for driver managers so they can verify available hours of service for drivers had a 37 percent lower crash injury frequency rate.

·              One out of four companies have GPS and use it to monitor speed. These companies had a 15 percent lower crash injury frequency rate.

·              Two out of three companies conduct road observations. This practice results in a slightly lower injury frequency rate.

5.   Transitional Work Programs

·              One out of four companies had someone responsible for tracking employees out of work and had written transitional work job descriptions. The group using both had a 7 percent lower injury frequency rate.

6.   Injury Prevention

·              Most companies offer some form of injury prevention activities. Those that use an injury prevention manual, provide regular training and have observations for enforcement had an injury frequency rate that was one-third of those that do not.

7.   Training

·              Three out of four companies use written agendas for training. While written agendas are important, the survey found that injury frequency rates went down as the training group size became smaller. Those with written agendas and one-on-one training had a 30 percent lower injury frequency rate.

CERCLA Rights to Sue for Clean Up Costs Reinstated

In the case of United States v. Atlantic Research Corporation, the Supreme Court ruled that potentially responsible parties (PRPs) that voluntarily clean up contaminated sites may sue other PRPs to recover their cleanup costs under section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The reinstatement of this right comes after many years of federal court battles over the issues of authority and methodology for recovering cleanup costs from other PRPs.

When CERCLA was originally enacted, the courts interpreted section 107(a) as providing a method for PRPs to recover their costs from other PRPs. However, in 1986, Congress enacted the Superfund Amendments and Reauthorization Act (SARA). Section 113(f) of this law outlined explicit means for PRPs to pursue contribution from other PRPs. After the enactment of SARA, some federal courts held that section 113 was the only remedy for cleanup cost recovery. Other courts prevented PRPs from suing under section 107 of CERCLA and expanded section 113 to allow PRPs’ contributions without the need for a suit.

Section 107 makes PRPs liable for “all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe” and “any other necessary costs of response incurred by any other person.” In Atlantic Research, the United States argued that the section 107 use of “any other person” was limited to suits brought by “non-PRPs.”  That meant that Atlantic Research, a PRP, was barred from filing suit. The Supreme Court held that all the words of the statute must be “read as a whole.” They added that using the United States’ reading of the language would decrease the number of plaintiffs permitted to sue to almost zero, which would make Section 107 worthless.

Section 113 prohibits claims against PRPs who have satisfied their liability to the United States or a state in an administrative or court approved settlement. In Atlantic Research, the United States argued that permitting PRPs to seek recovery under section 107 negates the protection offered to PRPs who have settled under section 113. The Supreme Court conceded this. However, the Court stated that this “supposed loophole” would not discourage settlements because district courts would take into account any earlier settlements when assigning the level of liability to the various PRPs involved.

The Supreme Court also ruled that section 107 and 113 provide two “clearly distinct” remedies. Section 107 permits PRPs to recover cleanup costs they have incurred from other PRPs. A PRP that has satisfied a settlement agreement or court judgment under CERCLA may pursue contribution from other PRPs through section 113. The Court made clear that simultaneous recovery under section 107 and section 113 is not allowed. PRPs can’t choose their method of recovery. The appropriate remedy will depend on the circumstances in each case.

Duke Study Says Obese Workers File More Worker Compensation Claims

A Duke University Medical Center study revealed that obese workers filed twice the number of workers’ compensation claims as non-obese workers. In addition the over-weight workers had 7 times higher medical costs from those claims and lost 13 times more days of work from work injury or work illness than did non-obese workers.

The results of the study were published April 23, 2007, in the Archives of Internal Medicine.

The researchers looked at the records of 11,728 employees of Duke University who received health risk appraisals between 1997 and 2004. Duke ordinarily gathers this information anonymously as a way of identifying potential areas of occupational risk in order to develop plans to reduce that risk. The analysis covered a variety of occupational titles, such as administrative assistants, groundskeepers, nurses and professors.

The study compared the relationship between body mass index (BMI) and the rate of workers’ compensation claims. BMI assesses a person’s weight in relationship to their height, which is why it is considered the most accurate measure of obesity. For Americans, a BMI of 18.5 to 24.9 is considered normal; 25 to 29.9 is considered overweight, and 30 and above is considered obese.

The researchers discovered that workers with a BMI greater than 40 had 11.65 claims per 100 workers, compared with 5.8 claims per 100 workers for employees with a normal weight. They also found that obese workers averaged 183.63 lost days of work per 100 workers, compared with 14.19 per 100 workers for employees of normal weight. The average medical claims costs per 100 workers was $51,019 for the obese and $7,503 for the non-obese.

The study showed that the body parts most susceptible to injury among obese workers were the lower extremities, wrist or hand, and back. The most common causes of these injuries were falls or slips, and lifting.

The researchers concluded that their findings were applicable to the community as a whole, since the demographics of Duke closely reflect the local area. They plan to use the Duke population to help the community, so the solutions they devise can benefit the community as a whole.

However, the primary message they hoped to deliver is that the solution to reducing the burden on workers’ compensation involves eliminating both individual risk factors such as obesity and the risk factors within the workplace that cause injury. By targeting obesity and workplace risks simultaneously, businesses can reduce absenteeism, increase the overall health of workers, and decrease the cost of health care.

Six Reasons Your Home-Based Business Needs a Small Business Policy

Like most new home-based business owners, you believe your homeowner or renter’s insurance coverage offers sufficient protection.  That is unfortunate, because in most instances these policies offer little to no coverage for business-related losses.

Homeowner’s policies are not designed to cover business losses.  Most offer a small amount of business property coverage, meant to cover incidental items, such as a computer used for office work. 

Depending on your business, you may be able to purchase a homeowner’s endorsement to cover your business property.  Your insurer is naturally going to want to know more about your business.  Questions such as what type of business, how long you have been in business and how many employees are common.

If your business is small with a low risk profile, and with limited client visits to your home, your homeowner’s insurer may offer limited liability protection. This protection would cover slips and falls when a client visits your office, which otherwise would not be covered.

If this option is not available, you may want to consider a small business policy.  Your homeowner’s insurer might offer a home-based business package for a reasonable premium, or another insurer can offer a package policy to cover the liability and property of your business.

Take a look at the following list.  If one or more of the items below apply, you may want to consider a business policy for your business:

o                   Business Property, Stock or Equipment over $10,000 in value

A business policy will allow you to insure your office contents, equipment, and stock. A homeowner’s policy will likely have little, if any, coverage for business-related items.

o                   Clients visit your office/use your product/depend on your service

Liability insurance can help cover your exposure to lawsuits resulting from slip and falls, product liability claims, personal injury claims, etc.  Perhaps even more importantly, it will provide defense costs for such actions.  Homeowner’s policies do not have coverage for business liability.  In a few instances, you may be able to purchase an endorsement to allow coverage for slip and falls due to customer visits, depending on your type of business.

o                   Damage to your office/workspace would require you to relocate/find a temporary substitute

Extra Expense coverage in a business policy will provide funds for a temporary office/workspace or cost of a mobile trailer near your damaged office site.

o                   An Error or Omission could result in a lawsuit that would need to be defended/could seriously damage your business

Errors and Omissions coverage will protect you from judgments and defense costs resulting from past mistakes. 

o                   Damage to your workplace could cause you to lose business, perhaps even lose some customers permanently

Business Interruption Coverage will help pay for expenses until your property is repaired or sales return to normal (depending on the policy form)

o                   Your employees use their vehicles to make deliveries or run errands for your business

Non-owned automobile liability will protect your business in the event that your employee has a serious accident during the course of running an errand for your business.  

Six Reasons Your Home-Based Business Needs a Small Business Policy

Like most new home-based business owners, you believe your homeowner or renter’s insurance coverage offers sufficient protection.  That is unfortunate, because in most instances these policies offer little to no coverage for business-related losses.

Homeowner’s policies are not designed to cover business losses.  Most offer a small amount of business property coverage, meant to cover incidental items, such as a computer used for office work. 

Depending on your business, you may be able to purchase a homeowner’s endorsement to cover your business property.  Your insurer is naturally going to want to know more about your business.  Questions such as what type of business, how long you have been in business and how many employees are common.

If your business is small with a low risk profile, and with limited client visits to your home, your homeowner’s insurer may offer limited liability protection. This protection would cover slips and falls when a client visits your office, which otherwise would not be covered.

If this option is not available, you may want to consider a small business policy.  Your homeowner’s insurer might offer a home-based business package for a reasonable premium, or another insurer can offer a package policy to cover the liability and property of your business.

Take a look at the following list.  If one or more of the items below apply, you may want to consider a business policy for your business:

o                   Business Property, Stock or Equipment over $10,000 in value

A business policy will allow you to insure your office contents, equipment, and stock. A homeowner’s policy will likely have little, if any, coverage for business-related items.

o                   Clients visit your office/use your product/depend on your service

Liability insurance can help cover your exposure to lawsuits resulting from slip and falls, product liability claims, personal injury claims, etc.  Perhaps even more importantly, it will provide defense costs for such actions.  Homeowner’s policies do not have coverage for business liability.  In a few instances, you may be able to purchase an endorsement to allow coverage for slip and falls due to customer visits, depending on your type of business.

o                   Damage to your office/workspace would require you to relocate/find a temporary substitute

Extra Expense coverage in a business policy will provide funds for a temporary office/workspace or cost of a mobile trailer near your damaged office site.

o                   An Error or Omission could result in a lawsuit that would need to be defended/could seriously damage your business

Errors and Omissions coverage will protect you from judgments and defense costs resulting from past mistakes. 

o                   Damage to your workplace could cause you to lose business, perhaps even lose some customers permanently

Business Interruption Coverage will help pay for expenses until your property is repaired or sales return to normal (depending on the policy form)

o                   Your employees use their vehicles to make deliveries or run errands for your business

Non-owned automobile liability will protect your business in the event that your employee has a serious accident during the course of running an errand for your business.  

Do Your Employees Drive Personal Vehicles for Business-Related Purposes?

If an accident occurs while an employee or volunteer is operating their personal vehicle for company business, your company could be held liable.  Even when an employee is just running an errand, such as making a bank deposit, dropping off a proposal or picking up a part, if an accident occurs your company could suffer as a result.   

While you cannot insure a non-owned vehicle, there are other steps you can take to protect your company before a loss occurs. If your employees or volunteers use personal vehicles for company business, even if just occasionally, the following guidelines can help reduce your risk:

1.   Determine a minimum level of auto liability insurance your employees and/or volunteers must carry.  Also consider what documentation should be provided to your company to demonstrate that proper insurance coverage is in effect.  For example, you might require that employees or volunteers submit a certificate of insurance each year that verifies coverage limits.

2.   Driving records should be checked prior to an employee’s hiring.  Validate driving credentials and check for accidents and moving violations over the past 5 years.  All recruiters, managers and human resource people should be aware of this policy.

3.   Avoid having youthful drivers, those with little driving experience, or drivers with more than one moving violation or accident use their vehicle for business-related purposes.

4.   Periodically check driving records for new offenses and moving violations.  Introduce a procedure for how discovery of new offenses will be handled.

5.   Develop a written policy on business use of personal vehicles and communicate to all employees. Managers, human resource personnel and recruiters should share this information with any potential new hires.

6.   Be sure you remain in compliance with local, state and federal statutes while obtaining private information about your employees. 

Insurance can play a role in helping to protect your business from this exposure. Non-owned auto liability insurance may be obtained on a stand-alone basis or in conjunction with your general liability coverage.  Coverage for hired vehicles may also be available, if needed.

Insurance premiums for non-owned automobile liability depend on the frequency of personal vehicle use and how employees use their vehicles for your business. Premiums for this line of coverage are generally fairly reasonable.

Another way to reduce risk is to eliminate the exposure.  If employees or volunteers are prohibited from using their personal vehicles for business-related purposes, it eliminates the possibility of an accident that will affect your company.

In the meantime, while you are mapping out your risk reduction strategy, maybe you should consider making that bank deposit yourself…

Longevity Is Key When It Comes to Lawyer’s Professional Liability Claims

Retirement usually means not only leaving your job, but everything associated with that job. However, when a lawyer retires, this isn’t necessarily the case. Whether they are no longer practicing law, or starting an entirely new career, lawyers may find themselves haunted by liability claims arising from their past work.

For this reason, it’s important for departing lawyers to confirm that liability coverage will remain intact for past work. To accomplish this goal, you should review the partnership agreement, the firm’s professional liability insurance, and any recent claims. Keep in mind that partnership agreements and insurance coverage vary from firm to firm. When you review the agreement, you may find an absence of provisions for the firm’s ongoing indemnity or insurance obligations towards former members.

When reviewing the firm’s professional liability policy you’ll probably find that is written on a “claims made” basis. This means that coverage is provided for any claims made during the policy term, even if the events that precipitated the claim happened before the policy’s effective date. Even if your firm has a claims made policy, it can still have coverage gaps that significantly affect you once you decide to leave. For example, the insurer may have included provisions that limit or exclude coverage of the firm’s activities in certain practice areas. Or with claims made policies, if an exclusion is added in the future, it is applicable to all past and future work in that practice area.

Your policy review should also include an examination of its coverage limits. Since these limits cover all claims made and reported within the policy term, there may not be funds available to cover a retiring lawyer if the firm has already submitted a substantial number of claims or even just one large one.

The next step in your evaluation is a determination of how the policy defines “insured.” In some attorney-client relationships, a lawyer may be considered an employee or independent contractor. Under some policies, coverage for employees and independent contractors is either limited or non-existent.

You should also review the conditions regarding the firm’s responsibilities for policy renewal and reporting claims. Don’t assume that the firm will continue to operate as a going concern after you are gone, or that it will continue to renew its liability policy. In fact, in the case of smaller firms, dissolution is often the outcome after a key partner retires.

If the practice is dissolved, it is important that the firm and its former partners maintain insurance coverage. And since time is a crucial factor in a dissolution scenario when it comes to coverage, it is important that you meet as soon as possible with your insurance representative to discuss your coverage status and appropriate options.

Know Your Commercial General Liability Insurance Limits

A commercial general liability policy (CGL) lists six different limits on the policy’s declarations page. While the limits may be listed separately, it’s important to understand that they are all interrelated. That means that payment of damages for one limit will affect another limit.

To illustrate how these limits interact, it is necessary to examine each one in detail:

The General Aggregate Limit  – The maximum amount the insurer will pay during the policy period for all damages including bodily injury, property damage, personal and advertising injury except for any amount paid as damages because of bodily injury or property damage included within the products-completed operations hazard. The definition of the products-completed operations hazard is outlined in the policy and a separate aggregate limit applies to this type of claim. Also included within the general aggregate are damages paid for medical payments.

Products-Completed Operations Aggregate Limit – The maximum amount the insurer will pay for damages because of bodily injury or property damage included within the products-completed operations hazard. The specified hazards are those described within the definition of the products-completed operations hazard and are limited to bodily injury or property damage that:

1.             Occurs away from the insured’s premises.

2.             Caused by the insured’s products that are no longer in the insured’s possession or an insured’s work that has been completed.

Personal and Advertising Injury Limit – The maximum amount the insurer will pay if legally obligated to pay damages due to personal and advertising injury offenses. The personal and advertising injury limit applies separately to each person or organization that sustains damages because of a covered offense. However, regardless of the number of persons or organizations claiming damages, or the number of offenses claimed during the policy period, the insurer is only obligated to pay up to the general aggregate limit.

Each Occurrence Limit – The maximum the insurer will pay for the sum of all damages due to bodily injury, property damage and medical payments. Keep in mind that there is an aggregate limit for bodily injury and property damage claims that arise from the products-completed operations hazard and a separate limit for all other bodily injury and property damages. However, the each occurrence limit does apply to all sums paid for medical payments.

Damage to Premises Rented to You Limit – This coverage is actually an exception to certain exclusions found in the bodily injury and property damage coverage. The first exception provides coverage for property damage to a premises and its contents, rented to the insured for 7 or fewer consecutive days if an insured is legally obligated to pay for such damage due to any cause except fire.

The second exception provides coverage for damage to the premises only if an insured is legally obligated to pay for property damage due to fire. However, if an insured is held liable solely due to an agreement to be responsible for the property or for damage to the property, there is no coverage. Liability has to be imposed on the insured as the result of a lawsuit in order for coverage to apply.

The Damage to Premises Rented to You limit applies to any one premises. Any property damage paid under this limit will reduce the each occurrence limit for that same occurrence and will also reduce the general aggregate limit.

Medical Expense Limit – The medical expenses coverage is a separate insuring agreement that obligates the insurer to pay reasonable medical expenses for bodily injury, caused by an accident, without regard to fault. Medical payments are subject to the medical expense limit. The medical expense limit applies separately to each person. However, medical payments will reduce the each occurrence limit for that same occurrence and will also reduce the general aggregate limit.

A Well-Designed Affirmative Action Plan Can Help You Avoid Discrimination Lawsuits

In an article titled Litigation Explosion, which appeared in the December 10, 2006 edition of the Arizona Daily Star, author Becky Pallack discusses a University of Arizona study that says employee lawsuits are on the rise:

“The researchers analyzed data from the U.S. Equal Employment Opportunity Commission and found 95,115 claims of employment discrimination nationwide in 2005.Federal employment discrimination lawsuits are up 268 percent since 1991, rising at a rate nine times as fast as other types of federal civil litigation.”

The financial effect on business from this increase in litigation has been devastating:

“For employers, the fallout from the lawsuit boom is expensive. Employers facing discrimination lawsuits were ordered by courts to pay $101.3 million in 2005, up nearly 600 percent from $14.7 million in 1992; and employers paid another $271.6 million in settlements, up 130 percent since 1992.”

As if this wasn’t enough, the EEOC has begun a new initiative, E-RACE (Eradicating Racism and Colorism from Employment), which is designed to improve the agency’s efforts to ensure workplaces are free of race and color discrimination. As part of this new strategy, the EEOC has said that it plans to “identify issues, criteria and barriers that contribute to race and color discrimination, explore strategies to improve the administrative processing and the litigation of race and color discrimination claims, and enhance public awareness of race and color discrimination in employment.”

With this increased emphasis on workplace discrimination, it is more important than ever to develop an effective affirmative action plan. Here are some tips to help you design a road map for ending discriminatory practices in your company:

·   Show commitment – Determine your diversity goals, make a plan to reach those goals, and then work the plan to its conclusion.

·   Identify the specific inequities you want to address – Before you create your diversity plan, perform the analysis required by law to identify what imbalances exist between the makeup of your workforce and the diversity of the workforce in the surrounding area. These are the areas your plan needs to address.

·   Perform an analysis of barriers to success – You will need to list what barriers to diversity exist in your business before you can create an effective affirmative action program. Start by asking yourself if individuals from a particular class are underrepresented in a job category. If the answer is “yes,” you need to figure out why. Is it because you recruit through word of mouth, which may be perpetuating your company’s homogeneous workforce? Where do you conduct interviews for new employees? Is it accessible to all types of applicants? If you advertise in newspapers, are they readily available to different ethnic populations?

·   Target the specific practice(s) that need altering – The corrective measures you select must be designed to remedy the imbalances identified in your assessment. If your company’s interview process puts minority candidates at a disadvantage, then focus on recruiting practices. If you have a lack of inclusion in a job category because you cannot find employees with the necessary skill set, then consider a more proactive job-training program.

·   Specify a timetable to accomplish goals – Have a clear picture of what the program needs to accomplish, and when that progress needs to take place. The ultimate success of your program is dependent upon having a quantifiable time line that clearly establishes the date by which each of your goals will be accomplished.

Ten Tips for Avoiding Legal Malpractice

Statistics show that in any given year, a minimum of five to six insured lawyers out of every 100 in private practice experience a malpractice claim, according to the Colorado Bar Association. In other words, a firm with 20 lawyers could be the recipient of a claim every year. As exposure to legal malpractice claims continues to rise, it is an important function of law office management to establish effective loss prevention practices:

·   Develop a standard calendaring system – This should contain all items to be calendared, deadlines for the various cases being handled, as well as deadlines for critical events. It should also include frequent reminder dates. The most effective calendaring system will have tracking procedures that identify the author of a particular entry.

·   Know the signs of substance abuse and depression – Heavy workloads can often result in an attorney becoming depressed or compensating through substance abuse. Knowing the warning signs associated with each scenario can prevent the firm from being hit with a malpractice suit because of a dysfunctional attorney. Symptoms of substance abuse include Monday morning tiredness, missing deadlines and appointments and neglecting mail and phone calls. Behavioral changes associated with depression include misplaced anger, frequent bouts of crying, self-criticism, becoming easily distracted, and lack of interest in every day activities.

·   Maintain good client relations – When accepting a new client, an attorney should discuss the purpose for which the firm was hired, reporting schedules, fees and billing arrangements, and client obligations. All of this information needs to be documented in writing and given to the client. Also, be sure the lines of communication remain open throughout the attorney-client relationship.

·   Screen clients carefully – Establish a policy of screening clients using a pre-determined set of criteria. Hold each attorney accountable for using those criteria.

·   Conduct thorough research and investigation – Some of the most common errors include failure to correctly apply the law, failure to determine a deadline, inadequate discovery and investigation, poor planning, and errors in the choice of procedure. The attorney of record should review staff work to ensure the accuracy of their work.

·    Avoid conflicts of interest and matter – Avoiding conflicts of interest involves establishing and updating a database of all clients and matters handled. To avoid conflicts of matter, create the practice of circulating a “new matter memo” to all attorneys and support staff whenever the firm accepts a new case. 

·   Never become inappropriately involved in a client’s interests – Accepting a director role in a client’s company, investing in a client’s securities, transacting business deals with a client, agreeing to contingent cash fees, and soliciting investors for a client’s business can result in a host of problems.  For example, the firm could be held liable for the attorney’s activities as the director in a client’s company or face conflict of interest charges because of an attorney’s personal involvement or investment in a client’s business.

·   Document all work – Establish a system for verifying the accuracy and content of all documents such as letters, briefs, contracts and motions. Also create separate files to store all documents prepared or received for each client matter.

·   Avoid fee disputes – Document fees and the scope of work in all matters. Bill on a monthly basis unless the client has asked for a different arrangement. Provide the client with detailed billing statements that include who performed the work and how much time was required.

·   Never delude yourself into believing you are immune from a malpractice suit – Your best defense is to remain acutely aware of how prevalent malpractice suits have become. It is this awareness that will motivate you to establish and maintain effective loss control procedures.

The EEOC Strengthens Commitment to Filing Class Action Suits

In 2006, the Equal Employment Opportunity Commission changed its strategy when it announced plans to file more class action suits. This shift was predicated on the decrease in the number of private-sector discrimination-related class action suits and increase in wage-hour class actions. As a result of this decline in discrimination class actions, the Commission’s position may indicate a trend toward more government-led class actions in this area.

The EEOC is in a unique position to litigate this type of suit because it is not required to meet the strict requirements to maintain a class action set forth in Rule 23 of the Federal Rules of Civil Procedure. In addition, the agency isn’t hampered by considerations of whether the monetary compensation won will be worth the expense of a trial.

The Commission is also spurred on in its decision by the belief that a national approach to litigating workplace civil rights is necessary due to a lack of consistent effort on the part of the private sector. The Commission itself is guilty of not identifying widespread discrimination in the past, and this shift is seen as attempt to make the agency more proactive.

What means will the agency use to evaluate which cases require class action treatment? Its primary sources will be:

·               Data gathered through EEO-1 surveys of private employers of 100 or more employees

·               Analyses designed by private statisticians who act as consultants to the Commission

·               Charges filed by claimants

·               Its own databases

·               Pending litigation

·               Long-term analysis of EEO-1 reports

In light of this emphasis on rooting out systemic discrimination, employers need to be increasingly vigilant. Here are some guidelines that can help you prevent becoming party to an EEOC-initiated class action suit:

1.                  Keep your affirmative action plans updated so that when analyzing, the data will identify problem areas in recruitment, hiring, transfer, promotion, compensation, termination, or other terms and conditions of employment.

2.                  Review the criteria used for hiring, firing and other personnel decisions to identify standards or actions that can be perceived as discriminatory.

3.                  Review instances in which a personnel decision impacted negatively on an employee or employees to be sure that all criteria used to make the decision was job related and the result of the need to maintain business operations.

4.                  Provide updated training for management involved in interviewing, hiring, job assignment, compensation, job advancement, and termination to ensure that they understand their obligations under the equal employment opportunity laws.

5.                  Inform management of the negative impact that e-mails have on the defense of claims, especially if careless phrases are used, insulting comments are made or e-mails are used for inappropriate purposes.

6.                  Publish company policies that spell out a zero tolerance for all forms of discrimination, harassment, and retaliation. Train non-management employees in those policies and their obligation to report immediately any actual or perceived harassment, discrimination, or retaliation.

7.                  Post and regularly distribute policies regarding reporting harassment, discrimination, or retaliation.

8.                  Develop a program through which employees receive severance pay or other consideration in exchange for executing binding releases that comply with the Older Worker Benefit Protection Act.

9.                  Keep and regularly review electronic data to identify potential problems and to avoid the possibility of it becoming damaged.

Take Steps to Prevent Workplace Bias Claims Before They Happen

The Equal Employment Opportunity Commission recently reported that work-related bias complaints increased to 75,768 during 2006 compared with 75,428 the previous year. Discrimination complaints had previously risen to a seven-year high of 84,442 in 2002, but then steadily decreased from 2003 to 2005. The most frequent complaints have remained consistent throughout the years, including allegations of discrimination based on race, sex or retaliation.

This upward trend in the number of suits filed should raise alarms for employers everywhere. The legal cost to defend an allegation of discrimination that reaches trial has been estimated between $75,000 and $200,000. This doesn’t include hidden costs like work time lost because of gathering evidence or giving depositions. It also doesn’t include costs associated with an appeal or with payment of a final judgment.

The National Center for Preventive Law (NCPL) at the California Western School of Law in San Diego recommends that employers practice what it refers to as “preventive law.” That means assessing legal risks and instituting solutions to prevent them from occurring.

To assist employers in creating an effective prevention program, NCPL has established the following guidelines:

·            Manage Compliance – Develop a corporate policy regarding discrimination and document in the employee handbook. Document the specific ways in which corporate policy enforces compliance. Maintain a record keeping system that indicates what actions were taken if policies were violated.

·            Contain Risk – Identify overt employee conduct that could lead to a lawsuit. Also look for less obvious misconduct that encourages or promotes discrimination.

·            Respond to Change – Maintain the longevity and continuity of your policies by including mechanisms that allow for necessary updates caused by new business activities or other organizational developments.

·            State Compliance Policy – Take every opportunity to restate corporate compliance policies, including such practices as having department managers discuss them during departmental meetings or by distributing fliers that remind employees about these policies.

·            Top Level Endorsement – Provide continuing opportunities for senior management to oversee and promote corporate compliance policies.

·            Create Compliance Accountability – Hold all staff members accountable for compliance in every activity they initiate or oversee.

·            Ensure Program Fairness – Be sure practices treat all employees fairly and guard against retaliation for raising compliance issues.

·            Maintain High-Level Oversight – Establish a Compliance Officer who has the authority to initiate, coordinate and review corporate compliance efforts.

·            Reward Success – Promote continued compliance through rewards such as monetary compensation.

National Council on Compensation Insurance Says Younger Workers Are More Accident Prone

According to a study conducted by the National Council on Compensation Insurance, younger workers have more injuries and illnesses than older workers; but older workers have higher costs per claim. The researchers discovered that age is an important factor in overall claim costs, but the significance of age on claims frequency has lessened. This has been interpreted to mean that age may not play an important role in future frequency trends. However, the relationship between age and claim severities is basically unchanged.

Factors associated with age, such as average wages, claim durations, lump-sum payments, injury diagnoses, and number of medical treatments, comprised a large part of the reason for the differences in the severity of claims between younger and older workers. The differences in wages and duration of claims were the principal reasons for the differences in the amount of payouts between younger and older workers. Differences in wages accounted for approximately one third of the differences in the amount of payout, while the differences in the duration of claims accounted for almost one half the difference.

Older workers experience more high cost injuries, such as injuries to joints like rotator cuffs and knees. These were more commonly experienced by workers aged 45-64.  Workers aged 20-34 more commonly experienced ankle sprains. Carpal tunnel syndrome and injuries to the lower back are among the top 10 diagnoses for workers of all ages. The researchers pointed out that the differences in the types of injuries only comprised about a quarter of the difference in medical severities between younger and older workers. The real factor influencing the difference in medical severities between older and younger workers was the significantly higher number and different mix of treatments within a diagnosis. This alone accounted for 70 percent of the difference.

Less than 10 percent of the difference in medical severities is due to a slightly more costly mix of treatments for older workers. This was reflected in small differences in the average prices of different types of medical services. The greater number and different mix of treatments also contribute to the longer duration of payments for older workers.

As for trends in loss costs, the researchers noted that the baby boomers’ impact was apparent when the data was viewed historically, but the major impact of this aging workforce has probably already occurred and employers should not anticipate that the aging workforce would present a major problem in terms of future claims costs.

Naturally Occurring Substances Can Expose Construction Firms to Environmental Liability

What do silica, mercury, arsenic, pyrite, and asbestos have in common? They all are recognized as toxic substances, or contain toxic substances as defined by the U.S. Environmental Protection Agency. Their very presence on a construction site presents a serious exposure for a construction contractor.

There are potentially hazardous consequences when these toxic substances are uncovered during construction:

·   Mercury – is a human neurotoxin; meaning it acts specifically on neurons or nerve cells. It is most hazardous to developing fetuses and small children. Eating mercury-contaminated fish is the way most humans become exposed. When mercury enters water, certain conditions can cause it to convert to methyl mercury. Methyl mercury is ingested by aquatic creatures and becomes more concentrated as it moves along the food chain. Humans receive the highest forms of concentration because they are at the end of this food chain.

·   Pyrite – has a high sulfur content, which if exposed to oxygen or water will form sulfuric acid. When a construction project releases significant amounts of pyrite into the surrounding area, it can result in high amounts of acid drainage, which enters surrounding bodies of water. The acid drainage contaminates streams and water wells of area residents.

·   Asbestos – has little or no impact on the environment and human health if left undisturbed. However, when construction releases natural asbestos fibers into the atmosphere, it exposes workers and residents of the surrounding area to respiratory hazards. Asbestos is known to cause cancer of the lungs and of the lining of internal organs.

·   Silica – is most dangerous in the crystalline form known as silicon dioxide. People who have been exposed to silica and contract silica-related respiratory conditions usually have inhaled tridymite or crystobalite contained in the dust released during construction. Although all forms of crystalline silica are different in chemical structure, all can eventually be deadly.

·   Arsenic – has been linked to cancer of the bladder, lungs, skin, kidney, nasal passages, liver, and prostate. Non-cancer effects can include thickening and discoloration of the skin, stomach pain, nausea, vomiting, diarrhea, numbness in hands and feet, partial paralysis, and blindness.

What specific implications does the presence of these toxic substances have on environmental liability insurance?  Many of these policies contain wording that excludes these naturally occurring substances from the coverage. In Contractor’s Pollution Liability Insurance (CPL), there are several ways exposure to naturally occurring hazards may be excluded. For example, the insurer could include a specific exclusion for naturally occurring substances in the exclusions section of the policy. No coverage would apply to claims based upon any naturally occurring substances in their unaltered form, or in an altered form due to naturally occurring processes.

A second way to exclude these substances from coverage is to exclude them by definition. In the policy’s definition of covered pollution conditions, the definition does not include naturally occurring substances. Pollution conditions are defined as the emission, discharge, dispersal, release or escape of pollutants, which are not naturally occurring. This negates coverage for these substances.

Does this mean you shouldn’t purchase a CPL policy? The answer to that question would be “no.” There are a number of different policy forms. Talk to your insurance agent to get the one that is best suited to your needs. 

Is Your Cyber-Policy Really Covering Your Technology-Related Exposures?

As businesses become increasingly reliant on technology to store sensitive information, the incidences of security breaches are becoming more prevalent. Each security breach increases the risk that a lawsuit or regulatory action could financially ruin a company and permanently damage its reputation. The situation is so bad, that some retailers and financial institutions targeted by litigation and regulatory actions are trying to hold their technology vendors accountable so they can transfer some of the fallout.

Many companies find themselves financial victims because they don’t buy insurance that addresses the many exposures related to security breaches. In some instances, a breach can trigger the need for a number of coverages, including crime, errors and omissions, employment practices liability, general liability, property and directors and officers liability. The so-called “cyber” policies address only one aspect of the exposure, the theft of information, money and identities through the Internet. That’s because these are major problems that are on the rise. According to Privacy Rights Clearinghouse, since February 2005, there have been more than 260 major security breaches involving nearly 100 million personal records. But if a company has only this basic coverage, they may not be prepared if disaster strikes. They should consider a more company-wide approach that includes insurance coverage for all possible exposures associated with a breach.

At the very least, your cyber policy should provide coverage in the following general risk areas:

·   Defense Coverage – Some policies limit the insurer’s duty to defend to actual lawsuits. That means that the insurer isn’t required to defend the insured against a claim, which may or may not result in a lawsuit. Others extend the duty to defend to all claims. You should look for the provision to defend against all claims in a cyber policy. You also need to review the policy in terms of who has the right to choose the attorney who will defend the claim. Many insurers can provide a choice of counsel provision that allows the company to make that choice. Talk to your insurer about having this provision incorporated into your policy.

·   Business-to-Business Coverage vs. Business-to-Consumer Coverage – If you want coverage for either or both of these risks, you have to make this known to your insurer. You need to be sure that the various exclusions and/or conditions necessary to minimize gaps in either coverage are present in your policy. These include electric/mechanical breakdown exclusion; breach of security exclusion; bodily injury/property damage exclusion; and employee malicious conduct exclusion.

·   Intellectual Property Infringement Coverage – All cyber insurance policies provide some level of intellectual property infringement coverage. However, some policies offer less coverage than others. Some even exclude coverage for software copyright infringement. Review the policy before you purchase to understand how much protection you have in this area. Most insurers are willing to insure software copyright infringement risk for an additional premium.

Remember, cyber insurance is like health insurance, you should customize your coverage to suit your company’s needs. Your best defense is to talk with your insurance agent to develop a plan that is right for you.

More Workers’ Compensation Claims Made As the Result of Work-Related Traffic Accidents

According to the Network of Employers for Traffic Safety, both on- and off-the-job motor vehicle crashes cost employers $60 billion annually from 1998 through 2000. The problem is so widespread, that in a recent study, the National Council on Compensation Insurance Inc (NCCI) noted that traffic accidents are the leading cause of accidental deaths in the United States. The study also said that workers’ compensation claims resulting from motor vehicle accidents are more severe than the average claim. Although they make up approximately 2 percent of all claims, they account for more than 5.5 percent of all losses because they cover a disproportionate share of the most severe claim types.

While workers’ compensation claims from motor vehicle accidents are growing, their frequency is declining but at a slower pace than for workers’ compensation claims in general. There are some other important characteristics about these claims that the NCCI noted in its study:

·   They almost always involve time lost from work.

·   Neck injuries are the most frequent diagnoses in these claims.

·   The average duration for a motor vehicle claim is 70 percent longer than for other types of claims.

·   They are three times as likely to involve a claimant attorney as compared to other types of claims.

The leading cause of these claims is a traffic accident that happened because the driver became distracted. The study revealed that almost 80 percent of the crashes and 65 percent of the near crashes resulted from the driver becoming distracted within three seconds of the event. The chief causes of the distraction were drowsiness and cell phone use.

The researchers had some specific suggestions regarding the steps employers can take to reduce the frequency and severity of these claims:

·  Encourage your employees to use seat belts – Failure to use seat belts cost employers roughly $2.1 billion yearly from work-related crashes between 1998-2000.

·  Be sure your employees never drive under the influence of alcohol – During 1998-2000, work-related crashes that resulted from drivers being intoxicated cost employers $3.1 billion annually.

·  Encourage employees to take defensive driving courses – These courses teach drivers how to react during an emergency so as to lessen the severity of the accident or avoid it all together.

·  Provide internal driver’s education courses – Teach employees good driving practices like pre-planning the trip route, realistically estimating how long the trip will take, being sure the vehicle is in good condition before hitting the road, and informing colleagues about travel plans.

Federal Rules Governing Civil Litigation Require Businesses to Keep Better Tabs on e-Documents

New rules, which took effect on December 1, 2006, require U.S. companies to keep better track of their employees’ e-mails, instant messages and other electronic documents in the event the companies are sued. These new rules are part of amendments to federal guidelines governing civil litigation and were approved by the Supreme Court in April 2006 after a five-year review.

Under the new rules, a company that is party to federal litigation must produce electronically stored information as part of discovery. This is the process by which both sides share evidence before a trial. Federal and state courts have already been requiring such evidence in individual cases. The new rules now make the production of such evidence mandatory for companies involved in federal lawsuits. Furthermore, any information technology employee who copies over a backup computer tape once a lawsuit has been filed could be accused of committing “virtual shredding.” Companies are still permitted to purge databases if the information they contain isn’t relevant to pending cases or cases the company anticipates being a party to in the future. However, sectors, such as financial services, remain subject to the data-retention rules they have always followed. In-house attorneys and IT staff will have to work together to ensure routine erasing of backup data doesn’t present legal issues. Lawyers must also know where company data is stored.

Many large companies are unaware of the data they have on hand, which makes them unprepared if sued. Because they lack a real knowledge of what data they house and where it is located, these companies are more likely to settle lawsuits to avoid the costs associated with electronic discovery. Better organization of the data will lower these costs and enable companies to avoid settling.

On the other hand, large companies are likely to face higher costs from organizing their data. The new rules make it necessary for companies to know about items more difficult to track, like work-related digital photos on employee cell phones and information on removable memory cards. As a result, firms that help businesses track and search their electronic data are experiencing a huge surge in new business.

Most legal experts agree that it isn’t a question of companies changing how they keep electronic files, but rather a question of having a more complete knowledge of where documents are stored. The new rules also provide more direction as to how electronic evidence is to be handled in federal litigation. This includes guidelines on how companies can be exempted from providing data that isn’t reasonably accessible, which could lessen the burden of electronic discovery.

Third Party Coverage Is a Key Coverage of Employment Practices Liability Insurance

The purpose of third-party coverage in an Employment Practices Liability (EPLI) policy is to protect an organization and its employees from accusations of wrongful acts committed against customers, clients, vendors, and suppliers. Some EPLI policies also cover wrongful acts committed by third parties against the insured’s employees.

Harassment and all forms of discrimination are covered under wrongful acts. Discrimination claims include discriminatory practices against a person based on their race, religion, age, sex, national origin, disability, pregnancy or sexual orientation. Harassment involves unwanted sexual advances or requests for sexual favors. Both verbal and physical conduct, as well as other forms of harassment that create a hostile or offensive work environment, are covered. Some policies also cover accusations of mental anguish, emotional distress, humiliation and assault.

If your organization has a lot of interaction with the public, it is especially vulnerable to third-party claims like those described above. In some cases, EPLI carriers may not provide third-party coverage to firms with a high potential for claims. What they might offer instead is limited coverage, such as covering accusations of discrimination, but not harassment claims.

To protect your organization from third-party claims, you need to go beyond just purchasing coverage. You must implement policies and procedures that address discrimination and harassment issues, both from the standpoint of an employee’s actions and the actions of third parties. EPLI insurers are increasingly requiring employers to implement these practices before they will issue a policy.

Having policies in place will offer little help to stop third-party claims if employees aren’t adequately trained. New employee orientation programs should include a presentation outlining the organization’s harassment/discrimination policies. The training must also include how to report and handle a third-party claim. However, hearing the information once is not enough to insure compliance. Employees must be periodically retrained through departmental meetings. To maintain the effectiveness of departmental training sessions, be sure that supervisors are provided with copies of all policy updates and procedural changes.

One important caveat to keep in mind is that most EPLI policies don’t provide third-party coverage for accusations involving the violation of the Americans with Disabilities Act. Nevertheless, you should review your EPLI policy’s definition of a claim to determine the policy’s interpretation. Many policies define a claim as a “demand for monetary damages.” This definition can present a problem in an ADA claim, because many of these claims are asking for reasonable accommodations, not monetary awards. That’s why it is important to ensure that your policy’s definition of a claim includes claims for non-monetary damages. A policy with this expanded definition will cover defense costs and indemnity connected with an ADA claim, but will not provide the funds to bring your organization into compliance with the provisions of the law.

Proper Maintenance Can Help Businesses Prevent Weather-Related Slips and Falls

It’s that time of the year when snow, sleet and ice are a fairly common occurrence in many parts of the country. Such weather conditions pose serious problems for business owners because walkways become slippery and increase the chances for employees and customers to fall.

While you can’t control the elements, you can reduce your liability by staying alert and eliminating hazards that cause falls. One such hazard is the accumulation of ice and snow that results because deicing measures were inadequate or not properly applied.

The first step in effectively deicing a walkway is to choose the correct treatment. When selecting chemicals to melt ice, keep the following points in mind:

·   Rock salt is the most common method and the least expensive of the ice-melting chemicals. It is easy to find and can melt snow and ice until the temperature drops below 20є F. Rock salt, however, also releases a large amount of chloride when it dissolves. This chloride can pollute streams, rivers and lakes and kill vegetation. It also causes metal to corrode.

·   Calcium chloride is a deicing agent that is manufactured in small, round, white pellets. It melts snow and ice even when the temperature falls below 0є F. It is much less toxic to plants than rock salt, but it can still damage them if applied too heavily.Calcium chloride can corrode concrete.

·   Potassium chloride is a deicing chemical that doesn’t irritate skin or harm vegetation. However, it only melts ice when temperatures remain above 15є F. It must be combined with other chemicals to melt ice at lower temperatures.

·   Magnesium chloride melts snow and ice until the temperature drops below -13є F. It releases nearly 40 percent less chloride into the environment than either rock salt or calcium chloride. It is also less damaging to concrete surfaces and is less toxic to plants, trees and shrubs.

Once you have selected your deicing agent, follow these tips from the Iowa Transportation Center at Iowa State University to be sure you maintain an ice and snow-free walkway:

·   Apply deicing chemicals before a storm and remove snow/ice during and after the storm. Use plenty of deicing materials. Using too little will leave patches of ice.

·   Aim for evaporation. If the water can drain and there is full sun or even reasonable wind, the ice will evaporate. Dry pavement is a clear indication there is no ice.

·   Use a friction additive. Sand is the most popular because it’s inexpensive. Use enough to ensure that anyone walking on the surface has enough traction.

·   Check and treat surfaces every morning, especially around snow piles where melting may have created new problem areas. Reevaluate during the day and re-treat as needed.

·   Remember that a clean-looking surface is only “safe” if it is dry. A wet surface can quickly become icy in the shade or overnight.

·   Train those responsible for safety procedures how to safely maintain walkway surfaces during icy/snowy weather.

What Should You Consider When Shopping for Lawyer’s Professional Liability Insurance?

Controlling expenses is an important consideration in the management of any law firm, so it isn’t unusual that a firm shopping for liability coverage would take premium rates into consideration. However, even though rates are important, they shouldn’t be the overriding factor in your decision to purchase a particular policy. There are a number of other aspects you should consider to ensure you receive the best coverage for your premium dollar.

The first of these considerations is whether your policy has eroding coverage.  In some liability policies, the coverage limits include defense costs. When you file a claim, the amount of coverage for settling the claim or paying a judgment against you decreases as you incur defense costs. This type of policy is referred to as having defense costs “inside” the policy. There are policies in which the defense costs are “outside” the policy, which means they are not subtracted from the amount of coverage. In some cases, policies with outside defense costs have a cap after which the defense costs are subtracted from coverage limits.

The second consideration is whether the policy deductible includes defense costs. If the deductible is only applied to liability, the insured firm doesn’t have to pay it until there is a settlement/judgment. However, if the deductible includes defense costs, the insured pays as soon as defense expenses begin to mount until the deductible is paid in full.

Another condition that you will want to note is whether your carrier can settle a claim without your consent. Some policies have what is known as a “hammer” clause that prevents the insurance company from settling without the consent of the insured. There is an extenuating circumstance to this clause in that, if the insured refuses to consent, the carrier is only liable for the amount for which it would have settled.

You also need to determine if your policy gives you the right to select your own defense counsel. More than likely, if you are a small firm your carrier will retain the right to choose your defense counsel. This doesn’t mean that you won’t have any input at all. Most insurance companies have a panel of defense attorneys and generally allow the insured to select from this panel. Larger firms can typically select their own counsel but the carrier must approve.

All current Lawyer’s Professional Liability policies are issued as “claims-made” policies, which means that a claim must be made and reported to the carrier within the life of the policy. To prevent coverage gaps if your firm is changing policies, you should select a new policy that has a “prior acts coverage” clause. This will extend your coverage so that any claims that existed before the new policy started will be covered. If you don’t have prior acts coverage, your former claims-made policy will not cover claims that developed after it expired and your firm will be without coverage for those claims.

A number of changes in both federal and state court procedures have made sanctioning more commonplace. The cost to defend your firm against a sanction or to pay the monetary penalty associated with it can be extremely expensive. That’s why you will want to ensure your liability policy provides coverage for these occurrences.

The final consideration is whether the policy requires a new deductible if there are multiple claims made in the same policy year. Some policies only require the deductible to be applied to the first claim made in a given policy year. Other policies treat the deductible on an aggregate basis. The policy will stipulate a specific deductible dollar amount per claim, with a cap on the total deductible dollar amount in the aggregate that the insured will have to pay before coverage begins. If neither of these scenarios is spelled out in your policy, your coverage most likely requires applies deductible for each claim.

Workers’ Comp Employer Costs Rose Faster Than Benefit Payments in 2004

According to a study released in July 2006 by the National Academy of Social Insurance, employer costs for workers’ compensation grew faster than combined cash and medical payments to injured workers in 2004, the most recent year for which data is available. Combined benefit payments for injured workers increased 2.3 percent in 2004 compared to prior year levels, while employer workers’ compensation costs rose by 7.0 percent for the same period.

Combined benefit payments fell by 3 cents for every $100 of covered wages, from $1.16 to $1.13. The chief contributor to this decline was the state of California, where benefits dropped by 10 cents per $100 of covered wages. Nationally, premiums paid for workers’ compensation insurance rose by 3 cents per $100 of covered wages, to $1.76 in 2004. The increase was the smallest annual increase since 2001.

Despite the recent rise in costs, both costs and benefits in 2004 remain far below their peak levels. Total benefits were at their highest in 1992 at $1.68 per $100 of covered wages, 55 cents higher than the 2004 figure. Employer costs were highest in 1990 at $2.18 per $100 of covered wages, 42 cents higher than in 2004.

Since 2000, the rise in benefit payments has resulted from increased spending for medical care. Spending for medical treatment rose from 47 cents in 2000 to 53 cents per $100 of covered wages in 2004. Spending for cash payments to workers remained the same during this period at 60 cents per $100 of wages.

There are specific actions employers can take to curb workers’ compensation costs. The first step is to examine accident records for the past three years. Take each year’s reports and examine as a whole. While reviewing look for specific accident causes and note hazards that should be remedied. You should also be looking for injury repetition and in which department injuries frequently occurred.

The next step is to conduct a physical analysis of the workplace. Utilize your health and safety committee as the catalyst, but be sure workers are also involved. Look for equipment hazards that need replacement or repair. Then search for environmental hazards such as chemical exposures, noise, temperature and ventilation issues.

The third step is to look for task or ergonomic hazards. Request employee input to encourage workers to take ownership of safety in their departments. When workers provide input, make sure actions resulting from their suggestions are documented in health and safety committee minutes and posted on bulletin boards in common areas. If employees do not feel their suggestions matter, they won’t bother to suggest improvements in the future.

Worker Found Eligible for Compensation from Seizure Related Injury

In an August 2006 ruling, Connecticut’s Supreme Court ruled that the claimant in the case of Michael G. Blakeslee Jr. vs. Platt Brothers & Co, who was injured when co-workers tried to help during a seizure, is entitled to workers’ compensation benefits. Typically, workplace injuries caused by a seizure wouldn’t be eligible for compensation because the injuries arise from the medical condition itself and not from conditions in the work area. In the Blakeslee case, the claimant received two dislocated shoulders on February 13, 2002, when three co-workers tried to restrain him during his seizure. He had fallen near a large steel scale, and then started flailing his arms and legs as he regained consciousness.

The claimant filed a workers’ compensation claim contending that because the actual injury resulted from the restraint, and not the seizure itself, the shoulder injuries should be covered. The claimant argued that an injury received during the course of employment is eligible for compensation even if infirmity due to disease originally set in motion the final cause of the injury. The claimant also asserted that an injury inflicted by a co-employee is eligible for compensation, unless the injured employee engages in unauthorized behavior or the injury is the result of an intentional assault.

Initially, a workers’ compensation commissioner decided that Blakeslee was not entitled to workers’ compensation benefits. The commissioner determined that the claimant’s injuries resulted from a chain of events set off by a grand mal seizure unrelated to his employment. A workers’ compensation review board agreed with the finding. The review board stated that there is a prerequisite requirement for eligibility for compensation, which the claimant overlooked. The cause of the injury must arise out of the employment and work conditions must be the legal cause of the injury. The review board contended that the claimant’s seizure caused the need for first aid, which caused the injury. There was no element of the claimant’s employment involved.

Five out of seven Supreme Court justices reversed the board’s ruling. They were not persuaded by the argument posed by Platt Brothers, and the employer’s insurer, Wausau Insurance Co., that finding for the defendant would be in direct opposition to public policy because it would prevent employees from assisting co-workers in future medical emergencies. The majority noted that the co-workers restrained Blakeslee to keep him from harming other employees as well as himself. Their actions benefited the employer. The action was directly related to the employment and would therefore be eligible for compensation.

The two dissenting justices argued that the Supreme Court should not have accepted review of the case. 

What Factors Influence Malpractice Premiums?

According to a November 2005 article published in the Insurance Journal entitled, “How to Write the Diverse Business of Lawyers Professional Liability,” between $1.5 and $2 billion is spent annually on Professional Liability coverage. With numbers such as these, it is important that any firm in the market for this insurance understand the factors affecting coverage rates.

Determining premium rates is a complex matter based on a combination of factors. However, there are two main factors insurers review when underwriting an insurance application. The first is your geographic location, because each state has a different risk assumption.  The level of risk is measured by the number of suits brought against other lawyers in your area. The second important factor is your practice area(s). You can expect to pay more for coverage if you specialize in high-risk areas such as securities, banking and/or real estate.

Other factors that insurers consider include:

·                                Liability limits and deductibles selected

·                                Breadth of coverage desired (prior acts, extended reporting, etc.)

·                                Number of attorneys covered

·                                Personal claims history of your firm’s attorneys

·                                Length of time covered attorneys have been associated with your firm

·                                Number of malpractice prevention controls utilized by your firm

The length of time covered attorneys have been associated with your firm is important, because insurers typically use step rates to calculate premiums for a new attorney.  Risk exposure increases during the initial years that an attorney practices as the number of potential plaintiffs increases with every new case. After a certain point, this risk flattens out.  So premium rates on a new attorney will automatically increase in set steps until the risk exposure matures.

It is also important to realize the significance reinsurance holds in determining premiums. Insurance is a way of transferring risk. You transfer risks to an insurance carrier, and the carrier will often transfer some of that risk to another company. By reinsuring, a carrier increases its capacity to underwrite more policies.  When reinsurance rates rise, the increased cost can be transferred to you in the form of higher rates.

Self-Insuring Workers’ Compensation Plans May Produce Premium Savings

Joining a workers’ compensation group self-insurance program may be a significant means for small and mid-sized employers to reduce operating costs. Such plans deliver savings by providing employers with considerable control over losses, medical care and rehabilitation, plus improving cash flow.

While some companies self-insure workers’ compensation programs individually, these are usually best suited for larger corporations with immense assets. For smaller and medium-sized businesses, a Group Self-Insurance (GSI) workers’ compensation plan is more suitable. A GSI is a non-profit association of employers formed for the specific purpose of providing workers’ compensation coverage. A GSI enables employers to assume a major portion of their risk and provides group purchasing power for excess insurance to cover individual losses or in the aggregate in excess of a specified amount.

Workers’ compensation is well suited for self-insurance plans because claims are typically of low severity but high frequency, which allows losses to be predicted with some accuracy. Further, payment for large claims can be spread over several years, which benefits a company’s cash flow. GSI programs enable companies to better manage safety programs and have more direct involvement in seeing that employees receive prompt medical care when injured, and employers are able to exercise closer monitoring of the return of the employee to work.

Requirements for joining or forming a GSI vary considerably from state to state. Some states do not allow GSIs and in other states, companies must meet certain solvency standards and provide financial and loss data to be considered. Also, if a company has operations in more than one state, GSIs must be setup in each state. A GSI in one state will not cover losses in another state.

Besides improved cash flow, the major benefits that come from joining or creating a GSI are enhanced loss experience through more effective loss prevention, loss control and managed care programs; reduced administrative costs, and interest income earned on premiums. GSIs in most states do not have to pay premium taxes and or be assessed for residual workers’ compensation market losses.

Members of a GSI pay a premium to the group based on their exposures, classification codes, payroll, experience modifications, and rates developed by a state’s workers’ compensation rate making bureau. At the end of the contract year, any surpluses from both the claims fund and the administrative expense fund can be returned as dividends to group members.

GSIs handle claims following guidelines of the state workers’ compensation laws. Often, third-party administrators handle loss prevention and control, case management, accounting, investment and actuarial services.

An agent can provide guidance to employers wanting to explore joining a GSI. An interested company should first seek management commitment as joining a GSI requires careful attention to the entire workers’ compensation program rather than shifting these responsibilities and duties to a private insurer. Also, an employer has to be willing to disclose detailed information regarding its finances, support systems and ongoing risks.

While GSIs offer important advantages, there are some disadvantages. Members of the group are usually jointly and severally liable for losses incurred by the entire membership. A bankruptcy or dissolution of a member does not release the remaining members from liability. If the GSI’s retention and excess insurance are exhausted by a catastrophic event, the group members must contribute their pro rata share of the total loss. And, if a GSI has a pattern of liberal underwriting for new members, it’s possible it will have financial deficiencies in the future.

If an employer understands the additional risks it assumes as well as the added reporting and administrative duties when it joins a GSI program, the end result could be a significant reduction in overall costs for workers’ compensation.

State Minimum Auto Liability Coverage is Inadequate

Sure, you’re a responsible driver. But is your state-minimum, bare bones auto insurance coverage really sufficient to cover your risks?

Yes, every state imposes a minimum on liability insurance coverage. This coverage not only protects you against having creditors forcibly seize your assets and land you in bankruptcy court; it also helps protect others around you, by ensuring that no matter what their medical issue or damages, there is enough liquidity on the table to make sure they are economically protected.

But state minimums aren’t designed for most individuals, especially the affluent and do not provide them with the real protection they need. State legislatures must set liability minimums low enough so that insurance coverage is affordable even for poor families – so at least they’ll get something rather than drive completely uninsured. State minimums are not designed to provide really adequate protection for drivers who have assets or make a decent income and are those who are targets for legal action.

The Owner is At Risk

Remember, even if you lent your car to someone else for the weekend – if he or she crashes it, and causes damage, it’s you, as the car owner, who is ultimately responsible. Owners are first in line, ahead of drivers, when plaintiffs’ lawyers start looking to collect on damages not covered by auto insurance.

How Big Can Judgments Be?

Judgments for damages in auto accidents are very frequently $50,000 and over and can range into the millions. We looked at actual judgments obtained by just one small law firm in Las Vegas, Nevada, and found instances like these:

  • $200,000 in liability for just one accident involving a motorcycle.
  • $265,000 for a T-bone auto accident.
  • $300,000 for a leg injury to a pedestrian.
  • $750,000 for a rear end accident with injury.
  • $2,000,000 for another rear-end accident with serious injury.
  • 2,900,000 for a wrongful death claim.

Your state-mandated minimum of $15,000 to $100,000 per accident should cover most fenderbenders, but it is woefully inadequate for the real risk. If you are sued, and the plaintiff wins, you will be held responsible for the whole judgment over the amount of your coverage.

Asset Protection

If someone involved in an accident sues you and wins, he will receive a payment from your insurance company, up to the limit of coverage.  When the payment is inadequate, they may take additional action. They may sue to seize your personal assets – your bank account, your vehicles, property, business and even your home in some jurisdictions. They may also file to garnish your wages. The fallout could easily force you into bankruptcy – and severely disrupt your life.

If you have any kind of hard-earned assets that are at risk of creditor action, you may want to consider buying extra liability coverage. The more assets you have, the more likely you are to be targeted. After all, plaintiffs’ lawyers know that judgments are easier to collect from the affluent than the poor. But even middle class people have a lot to lose by carrying inadequate liability insurance coverage.

Liability Insurance

You may consider two kinds of insurance: additional liability insurance for your car, over and above the state-mandated minimum, and umbrella coverage, which helps protect your assets against losses from a wider variety of sources. This can be especially important for parents of teenagers who are risky drivers and who may drive someone else’s car, or have a party at the house while you and other adults are out of town. When a youngster leaves the party at your house after drinking, and has a wreck, you could be held liable.

To assess your exposure, sit down with a licensed insurance professional, your attorney, or both. It’s easy to tailor a remarkably affordable plan to provide more realistic protection against the actual risks of liability – but you have to do it before the accident.

  • Fill your gas tank. Many times, gas stations
    run out of fuel in the day or so before a storm. If you can’t fuel your
    vehicle, you can’t evacuate. And you may not be able to function.
  • Get a battery-operated radio. Don’t
    count on cell phones working for a number of days after a storm.
  • You may be without power for as long as two
    weeks and sometimes longer. Keep nonperishables, batteries and flashlights.
  • Keep your generator outdoors. Every year, people
    die from carbon monoxide poisoning because they moved their generator indoors
    to protect it from theft.
  • Understand your generator’s capacity. Generators
    have a limited load. This is especially important to know when you start up
    electrical items connected to the generator, because startups cause a spike in
    electrical demand.
  • Know your neighbors. Your neighbors may have a
    harder time preparing or evacuating from storms than you do, because of
    frailty, disability, young children, poverty or lack of reliable
    transportation.
  • Look out for family members of emergency
    responders. Police, fire department, National Guard members and medical
    personnel often have to concentrate on preparing for the mission, and have less
    time to attend to their own homes and families.
  • Know your community emergency management contacts.
    You can find an online listing at https://www.ready.gov/community-state-info
  • Don’t underestimate tropical storms. Just
    because it’s not a hurricane doesn’t mean it can’t do a lot of damage locally.
    Tropical storms can dump as much rain as a hurricane.
  • By understanding these guidelines, you can be an asset to
    your community in the event of a hurricane, instead of a drain on emergency
    resources. You will also have an easier time getting reimbursed by your
    insurance company for any damage done, and be doing your part to keep overall
    hurricane insurance premiums down.

    Certificates of Insurance – A Prudent Means to Avoid Costly Claims

    More and more companies are hiring independent contractors to handle not only administrative matters, such as benefits and human resources, but also sales and distribution. With this delegation of authority to third-party suppliers comes less direct control over these operations, and greater becomes the need for clients to demand that vendors provide them with timely Certificates of Insurance (COI).

    The COI proves that the insured (the third party) has purchased the insurance coverages as required by the outsourcing client. But, the COI also states that the holder of the certificate has no legal right to be covered by the insurance described in the COI, nor does it amend, extend or alter the represented coverage. The COI only shows that the outside contractor has the insurance coverage as explained on the certificate. This protects the business that has contracted with the third party against liability for negligence caused by the independent contractor up to the limits of the policy.

    It is the responsibility of the independent contractor to provide the COI to the client that has hired the firm. Usually a COI is prepared by an agent/broker with a copy sent to the insurance company and the client for whom the third party has contracted to perform certain functions.

    The COI contains the name of the insured, the name of the insurance companies issuing the policies as stated on the COI, what specific coverages are contained in the insurance policies issued to the insured, and various descriptions of normal policy terms, exclusions and conditions.

    Most often COIs are obtained for commercial general liability to provide protection from liability arising out of the insured’s premises or operations, products and completed operations. Usually, a general form will provide broad, standardized coverage terms. In cases, where the coverage is more complex and of a higher risk, manuscript forms of a COI can be written specifically by or for an insurance company. These manuscript COIs should be reviewed carefully for the scope of coverage being provided.

    There are two types of general liability forms — claims-made and occurrence. The trigger that compels the policy to respond is the main difference between the two forms. In the occurrence policy, occurrences are covered that take place during the policy period, no matter when a claim is reported. A claims-made policy requires that the occurrence take place during the policy period and the claim be reported during the policy period. Most COIs use the occurrence form for all independent contractors as claims-made policies limit coverage.

    But simply having a COI in hand does not always mean that the independent contractor has the insurance coverage. A prudent practice is to have a system to audit, review and correct the certificates to reflect the provisions in the contracts. Some clients establish an auditing program in house, while others have the insurance agent or broker manage the program as part of their fee arrangement. This cost depends greatly on the workload.

    The consequences of not monitoring COIs of a third party can be costly for the firm that hired the contractor. Consider this sobering example. A business hired an independent contractor to provide distribution service for the company. An employee of the vendor had a serious car accident, and soon afterwards, the contractor ceased business. When the employee began submitting workers’ compensation claims, there was no coverage — the contractor had never maintained that insurance. Unfortunately, the company had not insisted on a COI from the independent contractor to verify this coverage. Casting about for payment of the claim, the court ruled that the vendor’s employee was a statutory employee of the company that hired the contractor. The workers’ compensation claims have totaled more than $100,000 with more to come.

    This is just one of many chilling cases of companies that have been caught with unexpected losses that came from not requiring proper COIs from independent contractors and auditing them to make sure they remain current and reflect the actual coverages held by the insured.

    Understanding How Bicycles Are Insured

    When the warm weather arrives, many bike owners dust off their bicycles and hit the road. Whether bike owners plan to participate in competitions or just take a ride around the block with the family, it is important for them to understand the rules of the road. It is also important to be adequately insured.

    Insuring A Bicycle
    Bicycles vary greatly in price these days. A simple model may cost several hundred dollars, and a racing bike may cost several thousand dollars. Personal property provisions in a homeowners or renters policy cover bicycles. This means bikes that are damaged or stolen are usually covered. Bikes stolen from cars are also covered under many policies. For personal property coverage, there are two options: Replacement cost coverage and actual cash value.

    Replacement Cost Coverage
    This type of insurance provides reimbursement for the cost of replacing a bicycle with a similar one at the current cost. Replacement cost coverage usually costs about 10 percent more than its alternative. However, it is still a wise investment.

    Actual Cash Value
    This option provides reimbursement for the actual value of the bicycle at its current age. This means a bicycle that is five years old would be valued at the cost of a comparable product. However, depreciation for the bike’s age would be calculated and deducted from that value.

    Liability protection is also granted in a homeowners or renters policy, so harm caused to others on their property will be covered. For example, if a policyholder crashes into a person on that person’s property and causes injuries, the policyholder’s insurance company will cover up to a specific dollar amount. It is important for all policyholders to know what their maximum coverage amount per incident is.

    Most people are insured for an amount between $300,000 and $500,000. However, some people purchase umbrella policies to expand that amount. The umbrella policy’s benefits kick in when the homeowners policy is maxed out. There is also no-fault medical coverage on a homeowners policy. This coverage usually ranges between $1,000 and $5,000. In the event of an injury, the injured party can simply submit a medical claim to the policyholder’s insurance company for hospital bills. Keeping a policy updated is the best way to avoid an expensive lawsuit.

    After purchasing a new bicycle, save the receipt. Call an agent immediately to notify him or her about the new purchase. Keep in mind that helmets, pumps, saddle bags, lights and special clothing should be included on insurance. People who own very expensive bicycles should purchase endorsements for their renters or homeowners policies. Many insurers have special endorsements for sporting equipment, and some even have specific endorsements for bicycles.

    Insurance is certainly one of the most important aspects of bicycle ownership. However, safety is equally crucial. To stay safe on the road this year, consider the following tips:

    – Always wear a helmet.
    – Make sure the bike fits properly and does not have any unsecured parts.
    – Ride on the correct side of the road, watch for traffic and use hand signals.
    – Learn and follow all the rules of the road.
    – Always stay alert, and be aware of surroundings at all times.
    – Avoid wearing headphones or a cellular headset while riding.
    – If necessary, take safety classes before hitting the road.
    – Be more visible by wearing bright colors, using lights and wearing reflective gear after dark.

    CERCLA Rights to Sue for Clean Up Costs Reinstated

    In the case of United States v. Atlantic Research Corporation, the Supreme Court ruled that potentially responsible parties (PRPs) that voluntarily clean up contaminated sites may sue other PRPs to recover their cleanup costs under section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The reinstatement of this right comes after many years of federal court battles over the issues of authority and methodology for recovering cleanup costs from other PRPs.
    When CERCLA was originally enacted, the courts interpreted section 107(a) as providing a method for PRPs to recover their costs from other PRPs. However, in 1986, Congress enacted the Superfund Amendments and Reauthorization Act (SARA). Section 113(f) of this law outlined explicit means for PRPs to pursue contribution from other PRPs. After the enactment of SARA, some federal courts held that section 113 was the only remedy for cleanup cost recovery. Other courts prevented PRPs from suing under section 107 of CERCLA and expanded section 113 to allow PRPs’ contributions without the need for a suit.
    Section 107 makes PRPs liable for “all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe” and “any other necessary costs of response incurred by any other person.” In Atlantic Research, the United States argued that the section 107 use of “any other person” was limited to suits brought by “non-PRPs.”  That meant that Atlantic Research, a PRP, was barred from filing suit. The Supreme Court held that all the words of the statute must be “read as a whole.” They added that using the United States’ reading of the language would decrease the number of plaintiffs permitted to sue to almost zero, which would make Section 107 worthless.
    Section 113 prohibits claims against PRPs who have satisfied their liability to the United States or a state in an administrative or court approved settlement. In Atlantic Research, the United States argued that permitting PRPs to seek recovery under section 107 negates the protection offered to PRPs who have settled under section 113. The Supreme Court conceded this. However, the Court stated that this “supposed loophole” would not discourage settlements because district courts would take into account any earlier settlements when assigning the level of liability to the various PRPs involved.
    The Supreme Court also ruled that section 107 and 113 provide two “clearly distinct” remedies. Section 107 permits PRPs to recover cleanup costs they have incurred from other PRPs. A PRP that has satisfied a settlement agreement or court judgment under CERCLA may pursue contribution from other PRPs through section 113. The Court made clear that simultaneous recovery under section 107 and section 113 is not allowed. PRPs can’t choose their method of recovery. The appropriate remedy will depend on the circumstances in each case.

    In the case of United States v. Atlantic Research Corporation, the Supreme Court ruled that potentially responsible parties (PRPs) that voluntarily clean up contaminated sites may sue other PRPs to recover their cleanup costs under section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The reinstatement of this right comes after many years of federal court battles over the issues of authority and methodology for recovering cleanup costs from other PRPs.When CERCLA was originally enacted, the courts interpreted section 107(a) as providing a method for PRPs to recover their costs from other PRPs. However, in 1986, Congress enacted the Superfund Amendments and Reauthorization Act (SARA). Section 113(f) of this law outlined explicit means for PRPs to pursue contribution from other PRPs. After the enactment of SARA, some federal courts held that section 113 was the only remedy for cleanup cost recovery. Other courts prevented PRPs from suing under section 107 of CERCLA and expanded section 113 to allow PRPs’ contributions without the need for a suit.Section 107 makes PRPs liable for “all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe” and “any other necessary costs of response incurred by any other person.” In Atlantic Research, the United States argued that the section 107 use of “any other person” was limited to suits brought by “non-PRPs.”  That meant that Atlantic Research, a PRP, was barred from filing suit. The Supreme Court held that all the words of the statute must be “read as a whole.” They added that using the United States’ reading of the language would decrease the number of plaintiffs permitted to sue to almost zero, which would make Section 107 worthless.Section 113 prohibits claims against PRPs who have satisfied their liability to the United States or a state in an administrative or court approved settlement. In Atlantic Research, the United States argued that permitting PRPs to seek recovery under section 107 negates the protection offered to PRPs who have settled under section 113. The Supreme Court conceded this. However, the Court stated that this “supposed loophole” would not discourage settlements because district courts would take into account any earlier settlements when assigning the level of liability to the various PRPs involved.The Supreme Court also ruled that section 107 and 113 provide two “clearly distinct” remedies. Section 107 permits PRPs to recover cleanup costs they have incurred from other PRPs. A PRP that has satisfied a settlement agreement or court judgment under CERCLA may pursue contribution from other PRPs through section 113. The Court made clear that simultaneous recovery under section 107 and section 113 is not allowed. PRPs can’t choose their method of recovery. The appropriate remedy will depend on the circumstances in each case.

    When It Rains, It Pours: Why You Need a Personal Umbrella Policy

    In recent years, our society has become what some people call “lawsuit happy.” In other words, an increasing number of people are filing lawsuits for everything from emotional injury to property damage-and they’re suing for larger amounts than ever before. If someone were to file a lawsuit against you, you could end up losing hundreds of thousands of dollars or more, even if you won.

    While you may have some personal liability coverage through your homeowner’s or auto insurance policy, it’s probably not nearly enough to cover a major lawsuit. Fortunately, you can further protect yourself with what’s known as an umbrella policy. This type of policy offers a higher level of liability coverage and ensures that you and your family will be protected if someone sues you for damages.

    Read on to learn more about these valuable policies:

    Umbrella policies: A liability coverage “extension”

    When it comes to lawsuits, the more assets you own, the more you stand to lose. A personal umbrella liability policy can protect you from these potentially devastating losses. These policies act as an extension to the current liability protection you probably have through your homeowner’s or auto insurance policy.

    Umbrella policies are typically sold in million dollar increments, and you can obtain a policy once your home and auto insurance policies meet a minimum “attachment point”-typically a liability limit of $250,000 or $500,000.

    What does it cover?

    Most umbrella policies covers the following:

    • Personal injury, including false arrest, mental anguish, malicious prosecution, libel, slander, defamation of character, wrongful entry or eviction, negligent infliction of emotional distress or invasion of privacy.
    • Bodily injury, such as physical injury or death. In some jurisdictions, this also includes emotional injury.
    • Property damage, including destruction of the property of others, cost of recreation and loss of use. However, it does not cover damages done to your own property.
    • Defense coverage, including groundless, false and fraudulent suits, bail bond costs, loss of earning and other “reasonable” expenses.

    Of course, it’s probably easier to understand exactly what an umbrella policy covers by putting it into real-life terms. Here are a few examples of what this type of policy could cover:

    • A deliveryman is hauling your new washing machine into your home when he trips on your door mat, falls and breaks his neck. Your umbrella policy would likely cover the hundreds of thousands of dollars worth of damages.
    • You’re driving down the road when an important corporate CEO steps into the crosswalk in front of your car. He sues you for millions of dollars in medical costs, lost earning and damages. Your umbrella policy can cover you for these damages.
    • Your daughter invites a friend over to play on her swing set. Her friend falls off the slide and suffers from serious injuries. When her parents sue you, your umbrella policy will cover the medical costs.

    How much does is it cost?

    The price of an umbrella policy depends on how much coverage you want, the number of properties you rent or own and the number of automobiles or watercraft you own. The cost associated with cars and watercraft are much higher than those associated with properties.

    Let’s say you are single, you own one home and one car, and you want to purchase a $5 million umbrella policy. You’ll probably pay somewhere between $270 and $550 a year. On the other hand, if you are married with two children, you own two homes, a rental property and three cars, and you want a $10 million umbrella, you’ll probably pay a good deal more-anywhere between $970 or $1,750 a year.

    Talk to your insurance agent to discuss whether or not an umbrella policy is right for you. In the long run, by paying a few hundred dollars per year, you could save millions.

    Duke Study Says Obese Workers File More Worker Compensation Claims

    A Duke University Medical Center study revealed that obese workers filed twice the number of workers’ compensation claims as non-obese workers. In addition the over-weight workers had 7 times higher medical costs from those claims and lost 13 times more days of work from work injury or work illness than did non-obese workers.

    The results of the study were published April 23, 2007, in the Archives of Internal Medicine.

    The researchers looked at the records of 11,728 employees of Duke University who received health risk appraisals between 1997 and 2004. Duke ordinarily gathers this information anonymously as a way of identifying potential areas of occupational risk in order to develop plans to reduce that risk. The analysis covered a variety of occupational titles, such as administrative assistants, groundskeepers, nurses and professors.

    The study compared the relationship between body mass index (BMI) and the rate of workers’ compensation claims. BMI assesses a person’s weight in relationship to their height, which is why it is considered the most accurate measure of obesity. For Americans, a BMI of 18.5 to 24.9 is considered normal; 25 to 29.9 is considered overweight, and 30 and above is considered obese.

    The researchers discovered that workers with a BMI greater than 40 had 11.65 claims per 100 workers, compared with 5.8 claims per 100 workers for employees with a normal weight. They also found that obese workers averaged 183.63 lost days of work per 100 workers, compared with 14.19 per 100 workers for employees of normal weight. The average medical claims costs per 100 workers was $51,019 for the obese and $7,503 for the non-obese.

    The study showed that the body parts most susceptible to injury among obese workers were the lower extremities, wrist or hand, and back. The most common causes of these injuries were falls or slips, and lifting.

    The researchers concluded that their findings were applicable to the community as a whole, since the demographics of Duke closely reflect the local area. They plan to use the Duke population to help the community, so the solutions they devise can benefit the community as a whole.

    However, the primary message they hoped to deliver is that the solution to reducing the burden on workers’ compensation involves eliminating both individual risk factors such as obesity and the risk factors within the workplace that cause injury. By targeting obesity and workplace risks simultaneously, businesses can reduce absenteeism, increase the overall health of workers, and decrease the cost of health care.

    Do You Need an Umbrella? Here Are Some Things to Consider

    Standard auto, homeowner’s and boat insurance policies cover liability a person may have for injuries or property damage suffered by someone else. Insurance companies design them to cover accidents for which the insured person may owe tens or even hundreds of thousands of dollars. However, sometimes the person may be responsible for an accident so catastrophic that the damages are $1,000,000 or more. To cover financially devastating events like these, insurance companies offer personal umbrella policies. These policies provide additional protection when an accident uses up the amounts of insurance provided by the other policies. They may also cover some types of losses these other policies do not cover.

    There is not a “standard” umbrella policy; each company’s offering will be different. Therefore, it helps to have a checklist of considerations when evaluating a policy.

    First, identify those things that could expose you to a catastrophic loss. How many cars do you own? Do you have inexperienced drivers in your household? Household attractions like swimming pools, trampolines, and swing-sets present an exposure to severe losses. Boats, like cars, can cause serious injuries and damage if the operators are inattentive, intoxicated, or inexperienced.

    Next, identify other exposures you may have that do not involve potential physical injury or illness or property damage or that might require different coverage. Do you or any members of your family participate in social media Web sites or online discussion forums? Does anyone coach a youth sports team, belong to the governing board of a non-profit organization, write computer code as a hobby, or give music lessons? These activities present different exposures to legal liability.

    Review your insurance policies. How much will your auto insurance pay for injuries to one other person? How much will it pay collectively for injuries to more than one? How much will it pay for property damage? How much will your homeowners policy pay for your personal liability for an accident? Does it cover any business activities? Does it cover family members accused of slander, libel, or defamation of character in online postings? Does it cover you for allegedly causing mental anguish to a kid who didn’t get much playing time on a team you coached, or trouble caused by a computer program you wrote? How much will your boat-owners policy pay for your liability for boating accidents? The answers to these questions will tell you where an umbrella policy can help.

    For example, if your auto policy will pay up to $250,000 for injuries to one person and $500,000 for injuries to multiple people, an umbrella with a $1,000,000 limit will give you insurance equaling $1,500,000 for injuries to two or more people. If your homeowners policy will pay up to $300,000 for your liability, the same umbrella will afford $1,300,000 if someone gets seriously hurt at your home. The umbrella limit of insurance also applies on top of the limit on the boat policy.

    In addition, the umbrella may cover things like volunteer activities, statements made online, and certain business activities that a homeowner’s or auto policy might not cover. Normally, the insurance company will require you to pay a deductible amount (such as $250 or $500) before it will pay for a loss that one of these other policies does not cover.

    A professional insurance agent can help you sort out what your current insurance does and does not cover and what additional coverages an umbrella will provide. It is important to compare all the coverages the policies provide and not just their prices. Fortunately, catastrophic accidents are extremely rare, but having an umbrella policy when they happen can make it easier to get through them.

    Six Reasons Your Home-Based Business Needs a Small Business Policy

    Like most new home-based business owners, you believe your homeowner or renter’s insurance coverage offers sufficient protection.  That is unfortunate, because in most instances these policies offer little to no coverage for business-related losses.

    Homeowner’s policies are not designed to cover business losses.  Most offer a small amount of business property coverage, meant to cover incidental items, such as a computer used for office work. 

    Depending on your business, you may be able to purchase a homeowner’s endorsement to cover your business property.  Your insurer is naturally going to want to know more about your business.  Questions such as what type of business, how long you have been in business and how many employees are common.

    If your business is small with a low risk profile, and with limited client visits to your home, your homeowner’s insurer may offer limited liability protection. This protection would cover slips and falls when a client visits your office, which otherwise would not be covered.

    If this option is not available, you may want to consider a small business policy.  Your homeowner’s insurer might offer a home-based business package for a reasonable premium, or another insurer can offer a package policy to cover the liability and property of your business.

    Take a look at the following list.  If one or more of the items below apply, you may want to consider a business policy for your business:

    o                   Business Property, Stock or Equipment over $10,000 in value

    A business policy will allow you to insure your office contents, equipment, and stock. A homeowner’s policy will likely have little, if any, coverage for business-related items.

    o                   Clients visit your office/use your product/depend on your service

    Liability insurance can help cover your exposure to lawsuits resulting from slip and falls, product liability claims, personal injury claims, etc.  Perhaps even more importantly, it will provide defense costs for such actions.  Homeowner’s policies do not have coverage for business liability.  In a few instances, you may be able to purchase an endorsement to allow coverage for slip and falls due to customer visits, depending on your type of business.

    o                   Damage to your office/workspace would require you to relocate/find a temporary substitute

    Extra Expense coverage in a business policy will provide funds for a temporary office/workspace or cost of a mobile trailer near your damaged office site.

    o                   An Error or Omission could result in a lawsuit that would need to be defended/could seriously damage your business

    Errors and Omissions coverage will protect you from judgments and defense costs resulting from past mistakes. 

    o                   Damage to your workplace could cause you to lose business, perhaps even lose some customers permanently

    Business Interruption Coverage will help pay for expenses until your property is repaired or sales return to normal (depending on the policy form)

    o                   Your employees use their vehicles to make deliveries or run errands for your business

    Non-owned automobile liability will protect your business in the event that your employee has a serious accident during the course of running an errand for your business.

    Do Your Employees Drive Personal Vehicles for Business-Related Purposes?

    If an accident occurs while an employee or volunteer is operating their personal vehicle for company business, your company could be held liable.  Even when an employee is just running an errand, such as making a bank deposit, dropping off a proposal or picking up a part, if an accident occurs your company could suffer as a result.   

    While you cannot insure a non-owned vehicle, there are other steps you can take to protect your company before a loss occurs. If your employees or volunteers use personal vehicles for company business, even if just occasionally, the following guidelines can help reduce your risk:

    1.   Determine a minimum level of auto liability insurance your employees and/or volunteers must carry.  Also consider what documentation should be provided to your company to demonstrate that proper insurance coverage is in effect.  For example, you might require that employees or volunteers submit a certificate of insurance each year that verifies coverage limits.

    2.   Driving records should be checked prior to an employee’s hiring.  Validate driving credentials and check for accidents and moving violations over the past 5 years.  All recruiters, managers and human resource people should be aware of this policy.

    3.   Avoid having youthful drivers, those with little driving experience, or drivers with more than one moving violation or accident use their vehicle for business-related purposes.

    4.   Periodically check driving records for new offenses and moving violations.  Introduce a procedure for how discovery of new offenses will be handled.

    5.   Develop a written policy on business use of personal vehicles and communicate to all employees. Managers, human resource personnel and recruiters should share this information with any potential new hires.

    6.   Be sure you remain in compliance with local, state and federal statutes while obtaining private information about your employees. 

    Insurance can play a role in helping to protect your business from this exposure. Non-owned auto liability insurance may be obtained on a stand-alone basis or in conjunction with your general liability coverage.  Coverage for hired vehicles may also be available, if needed.

    Insurance premiums for non-owned automobile liability depend on the frequency of personal vehicle use and how employees use their vehicles for your business. Premiums for this line of coverage are generally fairly reasonable.

    Another way to reduce risk is to eliminate the exposure.  If employees or volunteers are prohibited from using their personal vehicles for business-related purposes, it eliminates the possibility of an accident that will affect your company.

    In the meantime, while you are mapping out your risk reduction strategy, maybe you should consider making that bank deposit yourself…

    Are You Liable? Protect Yourself from Home Worker Lawsuits

    As the housekeeper is vacuuming your living room, she trips over one of your daughter’s toys and seriously injures her back. While your neighbor’s teenage son is mowing your front lawn, he steps in a large hole and sprains his ankle. Will your homeowner’s insurance cover you if one of these workers decides to file a lawsuit?

    Many homeowners do not realize that they could be held financially liable if a maid, landscaper, nanny or another house worker were to suffer from an injury on their property. Here are some things you should keep in mind before you hire a home worker:

    Is that worker an employee or a contractor?

    When you hire someone to help out around the house, you should figure out whether he or she is an employee or a contractor. This is one of the factors determines whether or not you are liable for a worker’s injury. So, how do you know if the worker is considered your employee or a contractor? It all comes down to how much control you have over the worker.

    Let’s say you hire a nanny named Lisa to take care of your children and do some light cleaning in your home. Lisa follows your instructions about how to care of your kids and how to complete certain household tasks. You supply Lisa with the supplies and tools she needs to do her job. Because you have control over how Lisa works, she is most likely considered your employee.

    On the other hand, let’s say you hire a professional landscaper named Bob to fertilize and mow your grass, trim the hedges and plant flowers in your yard. Bob uses his own lawn mower and yard tools and he does yard work for other homeowners, as well. Bob also has a team of workers who help him with his business, and he pays these workers. In this case, Bob would be considered an independent contractor.

    Of course, these are two fairly simple examples. If you are uncertain about whether a worker in your home is considered a contractor or an employee, consult a lawyer or tax professional.

    Understanding worker’s comp insurance

    Some states require that homeowners who have house worker “employees” to carry workers’ compensation insurance coverage for them. However, even if your state does not require this, you should still consider purchasing this insurance for your employees. Why? Because if one of your employees is injured on your property, you may have to pay for their medical bills and other expenses out of your own pocket. However, with workers’ compensation coverage, the insurance company will cover the costs.

    Alternatively, if you hire a house contractor, such as a landscaper, carpenter or plumber, they should be covered by their own workers’ compensation insurance. If a contractor is injured while doing work on your property, he or she will be covered under that policy. If the contractor doesn’t have enough coverage, you may be held financially liable. However, depending on the circumstances, you may be able to file a lawsuit against the contractor as they are required by law to have sufficient workers’ compensation coverage.

    If you are looking to hire a house contractor, it’s important to ensure they are covered for worker injuries, property damage and uninstalled materials. Don’t just take their word for it. Ask for written proof that they have a contractor’s license, workers’ compensation insurance for themselves and any subcontractors and general liability coverage.

    Know what your homeowner’s insurance covers

    When it comes to coverage for home workers, every homeowner’s insurance policy is different. Depending on your home state, your policy may include a provision that provides limited coverage for minor workers performing lawn mowing or other tasks that require the use of power tools on your property.

    On the other hand, your policy may specifically exclude domestic workers such as nannies or maids. Your policy may cover the injuries of household employees, but only after a lawsuit is filed against you. Because homeowner’s policies vary widely, it’s important to read through your contract and talk to your insurance agent before you hire a home worker.

    Consider an umbrella policy

    If you discover that your homeowner’s policy offers limited or no liability coverage for workers, you may consider purchasing additional liability insurance. While you may have some personal liability coverage through your homeowner’s policy, it’s probably not nearly enough to cover a major lawsuit from a home worker. If someone were to file a lawsuit against you, you could end up losing hundreds of thousands of dollars or more-even if you win.

    You can further protect yourself with what’s known as an umbrella policy. This type of policy offers a higher level of liability coverage and ensures that you and your family will be protected if someone sues you for damages. Umbrella policies are typically sold in million dollar increments, and you can obtain a policy once your home and auto insurance policies meet a minimum “attachment point”-typically a liability limit of $250,000 or $500,000.

    Check with the Better Business Bureau

    Before you hire a home worker, you should contact the Better Business Bureau for more information. They can tell you if any consumers have filed complaints against the worker. Visit the bureau’s website at www.bbb.org.

    Longevity Is Key When It Comes to Lawyer’s Professional Liability Claims

    Retirement usually means not only leaving your job, but everything associated with that job. However, when a lawyer retires, this isn’t necessarily the case. Whether they are no longer practicing law, or starting an entirely new career, lawyers may find themselves haunted by liability claims arising from their past work.

    For this reason, it’s important for departing lawyers to confirm that liability coverage will remain intact for past work. To accomplish this goal, you should review the partnership agreement, the firm’s professional liability insurance, and any recent claims. Keep in mind that partnership agreements and insurance coverage vary from firm to firm. When you review the agreement, you may find an absence of provisions for the firm’s ongoing indemnity or insurance obligations towards former members.

    When reviewing the firm’s professional liability policy you’ll probably find that is written on a “claims made” basis. This means that coverage is provided for any claims made during the policy term, even if the events that precipitated the claim happened before the policy’s effective date. Even if your firm has a claims made policy, it can still have coverage gaps that significantly affect you once you decide to leave. For example, the insurer may have included provisions that limit or exclude coverage of the firm’s activities in certain practice areas. Or with claims made policies, if an exclusion is added in the future, it is applicable to all past and future work in that practice area.

    Your policy review should also include an examination of its coverage limits. Since these limits cover all claims made and reported within the policy term, there may not be funds available to cover a retiring lawyer if the firm has already submitted a substantial number of claims or even just one large one.

    The next step in your evaluation is a determination of how the policy defines “insured.” In some attorney-client relationships, a lawyer may be considered an employee or independent contractor. Under some policies, coverage for employees and independent contractors is either limited or non-existent.

    You should also review the conditions regarding the firm’s responsibilities for policy renewal and reporting claims. Don’t assume that the firm will continue to operate as a going concern after you are gone, or that it will continue to renew its liability policy. In fact, in the case of smaller firms, dissolution is often the outcome after a key partner retires.

    If the practice is dissolved, it is important that the firm and its former partners maintain insurance coverage. And since time is a crucial factor in a dissolution scenario when it comes to coverage, it is important that you meet as soon as possible with your insurance representative to discuss your coverage status and appropriate options.

    Teens Drinking at Parties = Insurance Issues

    Every spring brings with it the prom and graduation party seasons. Unfortunately, these events often become occasions for teens to drink alcohol. Teens at unsupervised parties risk harming themselves and others when they drink. Parents who host these parties may bear responsibility for what happens there and for injuries or damages occurring after the guests leave. While their liability insurance may cover any financial damages, the circumstances of the accident determine which policy will respond, and this will affect how much coverage the parents have.

    Assume that a guest consumes several beers at the party, drives off in his car, and gets into an accident, injuring himself and a passenger. The parents of both injured teens sue the parents who hosted the party, who in turn notify their homeowner’s insurance company. However, the policy’s personal liability coverage does not apply to an insured person’s legal liability for:

    • The occupancy, operation, or use of a motor vehicle by any person
    • The entrustment of a motor vehicle by the insured person to anyone else
    • The insured person’s failure to supervise or negligent supervision of any person using a motor vehicle
    • The actions of a minor involving a motor vehicle.

    Because of this, the homeowner’s policy will not cover the parents’ liability or defense costs. Their personal auto insurance policy may cover them, however. The policy’s liability insurance covers the individuals named on the policy and household residents who are their relatives for their liability for bodily injury from an accident arising out of the use of any auto. Therefore, even though the parents were not actually operating the vehicle involved in the accident, their policy will cover their liability. In addition, the auto policy that applies to the car involved in the accident (the guest’s insurance, or, more likely, his parents’) will also cover the hosts’ liability for the passenger’s injuries. The hosts’ policy will step in if the owners’ policy either does not apply or pays out its maximum limit of insurance.

    Now assume that the guest consumes the beer, but a sober guest gives him a ride home. Rather than go straight to bed, the young man goes for a swim in his parents’ pool and drowns. His parents sue the hosts, alleging that his judgement was impaired because the hosts allowed him to drink. In this situation, the homeowner’s policy should pay for the the hosts’ liability and legal defense. Because this accident did not involve a motor vehicle, and no other policy provisions that would remove coverage apply, the policy will cover this claim.

    While one policy or the other may apply to a liquor liability claim, there could be significant differences between the amounts of coverage the two policies provide. Most homeowner’s policies provide personal liability coverage of at least $100,000 for each occurrence; many provide limits of $300,000 or $500,000. Auto policies may provide much less coverage. Most states have laws setting the minimum amounts of liability coverage that an auto policy may provide, but those limits are relatively small. For example, New York law requires minimum limits of $25,000 for injuries to one person and $50,000 for injuries to two or more people (higher amounts apply for death claims.) Should a young person become seriously injured or killed, the damages claimed could well exceed these amounts. Parents should consider buying as much liability insurance as they can afford; they should also think about buying an umbrella policy, which pays for damages that surpass the amounts payable under homeowner’s and auto policies.

    Of course, the best course of action is to properly supervise parties, so that everyone has a good time and lives to have another one someday.

    Know Your Commercial General Liability Insurance Limits

    A commercial general liability policy (CGL) lists six different limits on the policy’s declarations page. While the limits may be listed separately, it’s important to understand that they are all interrelated. That means that payment of damages for one limit will affect another limit.

    To illustrate how these limits interact, it is necessary to examine each one in detail:

    The General Aggregate Limit  – The maximum amount the insurer will pay during the policy period for all damages including bodily injury, property damage, personal and advertising injury except for any amount paid as damages because of bodily injury or property damage included within the products-completed operations hazard. The definition of the products-completed operations hazard is outlined in the policy and a separate aggregate limit applies to this type of claim. Also included within the general aggregate are damages paid for medical payments.

    Products-Completed Operations Aggregate Limit – The maximum amount the insurer will pay for damages because of bodily injury or property damage included within the products-completed operations hazard. The specified hazards are those described within the definition of the products-completed operations hazard and are limited to bodily injury or property damage that:

    1.             Occurs away from the insured’s premises.

    2.             Caused by the insured’s products that are no longer in the insured’s possession or an insured’s work that has been completed.

    Personal and Advertising Injury Limit – The maximum amount the insurer will pay if legally obligated to pay damages due to personal and advertising injury offenses. The personal and advertising injury limit applies separately to each person or organization that sustains damages because of a covered offense. However, regardless of the number of persons or organizations claiming damages, or the number of offenses claimed during the policy period, the insurer is only obligated to pay up to the general aggregate limit.

    Each Occurrence Limit – The maximum the insurer will pay for the sum of all damages due to bodily injury, property damage and medical payments. Keep in mind that there is an aggregate limit for bodily injury and property damage claims that arise from the products-completed operations hazard and a separate limit for all other bodily injury and property damages. However, the each occurrence limit does apply to all sums paid for medical payments.

    Damage to Premises Rented to You Limit – This coverage is actually an exception to certain exclusions found in the bodily injury and property damage coverage. The first exception provides coverage for property damage to a premises and its contents, rented to the insured for 7 or fewer consecutive days if an insured is legally obligated to pay for such damage due to any cause except fire.

    The second exception provides coverage for damage to the premises only if an insured is legally obligated to pay for property damage due to fire. However, if an insured is held liable solely due to an agreement to be responsible for the property or for damage to the property, there is no coverage. Liability has to be imposed on the insured as the result of a lawsuit in order for coverage to apply.

    The Damage to Premises Rented to You limit applies to any one premises. Any property damage paid under this limit will reduce the each occurrence limit for that same occurrence and will also reduce the general aggregate limit.

    Medical Expense Limit – The medical expenses coverage is a separate insuring agreement that obligates the insurer to pay reasonable medical expenses for bodily injury, caused by an accident, without regard to fault. Medical payments are subject to the medical expense limit. The medical expense limit applies separately to each person. However, medical payments will reduce the each occurrence limit for that same occurrence and will also reduce the general aggregate limit.

    A Well-Designed Affirmative Action Plan Can Help You Avoid Discrimination Lawsuits

    In an article titled Litigation Explosion, which appeared in the December 10, 2006 edition of the Arizona Daily Star, author Becky Pallack discusses a University of Arizona study that says employee lawsuits are on the rise:

    “The researchers analyzed data from the U.S. Equal Employment Opportunity Commission and found 95,115 claims of employment discrimination nationwide in 2005.Federal employment discrimination lawsuits are up 268 percent since 1991, rising at a rate nine times as fast as other types of federal civil litigation.”

    The financial effect on business from this increase in litigation has been devastating:

    “For employers, the fallout from the lawsuit boom is expensive. Employers facing discrimination lawsuits were ordered by courts to pay $101.3 million in 2005, up nearly 600 percent from $14.7 million in 1992; and employers paid another $271.6 million in settlements, up 130 percent since 1992.”

    As if this wasn’t enough, the EEOC has begun a new initiative, E-RACE (Eradicating Racism and Colorism from Employment), which is designed to improve the agency’s efforts to ensure workplaces are free of race and color discrimination. As part of this new strategy, the EEOC has said that it plans to “identify issues, criteria and barriers that contribute to race and color discrimination, explore strategies to improve the administrative processing and the litigation of race and color discrimination claims, and enhance public awareness of race and color discrimination in employment.”

    With this increased emphasis on workplace discrimination, it is more important than ever to develop an effective affirmative action plan. Here are some tips to help you design a road map for ending discriminatory practices in your company:

    ·   Show commitment – Determine your diversity goals, make a plan to reach those goals, and then work the plan to its conclusion.

    ·   Identify the specific inequities you want to address – Before you create your diversity plan, perform the analysis required by law to identify what imbalances exist between the makeup of your workforce and the diversity of the workforce in the surrounding area. These are the areas your plan needs to address.

    ·   Perform an analysis of barriers to success – You will need to list what barriers to diversity exist in your business before you can create an effective affirmative action program. Start by asking yourself if individuals from a particular class are underrepresented in a job category. If the answer is “yes,” you need to figure out why. Is it because you recruit through word of mouth, which may be perpetuating your company’s homogeneous workforce? Where do you conduct interviews for new employees? Is it accessible to all types of applicants? If you advertise in newspapers, are they readily available to different ethnic populations?

    ·   Target the specific practice(s) that need altering – The corrective measures you select must be designed to remedy the imbalances identified in your assessment. If your company’s interview process puts minority candidates at a disadvantage, then focus on recruiting practices. If you have a lack of inclusion in a job category because you cannot find employees with the necessary skill set, then consider a more proactive job-training program.

    ·   Specify a timetable to accomplish goals – Have a clear picture of what the program needs to accomplish, and when that progress needs to take place. The ultimate success of your program is dependent upon having a quantifiable time line that clearly establishes the date by which each of your goals will be accomplished.

    Separate Households: Whose Insurance Covers the Kids’ Accidents?

    Michael and Maureen divorced after 18 years of marriage and agreed to joint custody of their three children. Their 11 year-old son Mikey is riding his bike one afternoon with some friends and not paying full attention to the road in front of him. A five year-old child chasing a ball runs into the road and Mikey strikes her with his bike, causing her to fall and break her arm. The child’s furious parents sue both Michael and Maureen for compensation for her injuries and trauma.

    Not long after, their 16 year-old son Mark gets his drivers license. One evening while driving home, he swerves to avoid a deer in the road, loses control, and plows into two parked cars. Both cars are relatively new; the repair bills come to thousands of dollars.

    Because Michael and Maureen now have separate households, they each have their own auto and homeowner’s insurance policies. Are both parents responsible for the children’s actions? Is only the parent who had custody at the time of the accident responsible? And whose insurance pays for the damages? Will either policy pay? With the increasing prevalence of two-household families and blended families, the question of which parent (and, therefore, which insurance policy) is responsible for a child’s actions has become more common. The answer is not always clear.

    A standard homeowner’s policy covers the people named on it (the named insureds); household residents who are either relatives of the named insureds or under age 21 and in the care of a named insured or relative; and full-time college students who are either relatives of the named insureds and under age 24 or others in the care of a household resident and under age 21. A standard auto policy covers the named insureds and “family members” (residents of the household related to the named insureds by blood, marriage, or adoption, including ward or foster children.) Michael and Maureen have joint custody of their children. In which parent’s household are the children residents?

    State laws and courts have answered this question in a variety of ways. For example, states such as New York have established “dual residency”; that is, a person can be a legal resident of multiple households at the same time. However, other states such as Montana have laws prohibiting dual residency. Some courts start with the custody awarded in the divorce decree but also consider how the parents are actually handling custody. A New Jersey court found that a child had dual residency, despite the mother having legal custody, because both parents had actual custody at different times. The judge ruled that both parents’ homeowner’s policies applied to the child.

    Other states have ruled that no one factor determines residency; a court must look at multiple factors. A Georgia court devised an approach that measures custody time and focuses on whether there is in fact more than one household. New Jersey courts look at both measurable factors and qualitative factors, such as whether people in the household function together as family members.

    If Michael and Maureen live in a dual residency state, both their homeowner’s and auto policies may cover the accidents their children have. Policy terms explain how they share loss payments for these incidents. In other states, the solution may be more complicated. A court may weigh several factors and assign residency to only one of the households, requiring one parent’s insurance to pay for the loss. Since the outcome in these situations is uncertain, the best thing for divorced parents to do is to make sure they have plenty of insurance provided by financially strong companies.

    Ten Tips for Avoiding Legal Malpractice

    Statistics show that in any given year, a minimum of five to six insured lawyers out of every 100 in private practice experience a malpractice claim, according to the Colorado Bar Association. In other words, a firm with 20 lawyers could be the recipient of a claim every year. As exposure to legal malpractice claims continues to rise, it is an important function of law office management to establish effective loss prevention practices:

    ·   Develop a standard calendaring system – This should contain all items to be calendared, deadlines for the various cases being handled, as well as deadlines for critical events. It should also include frequent reminder dates. The most effective calendaring system will have tracking procedures that identify the author of a particular entry.

    ·   Know the signs of substance abuse and depression – Heavy workloads can often result in an attorney becoming depressed or compensating through substance abuse. Knowing the warning signs associated with each scenario can prevent the firm from being hit with a malpractice suit because of a dysfunctional attorney. Symptoms of substance abuse include Monday morning tiredness, missing deadlines and appointments and neglecting mail and phone calls. Behavioral changes associated with depression include misplaced anger, frequent bouts of crying, self-criticism, becoming easily distracted, and lack of interest in every day activities.

    ·   Maintain good client relations – When accepting a new client, an attorney should discuss the purpose for which the firm was hired, reporting schedules, fees and billing arrangements, and client obligations. All of this information needs to be documented in writing and given to the client. Also, be sure the lines of communication remain open throughout the attorney-client relationship.

    ·   Screen clients carefully – Establish a policy of screening clients using a pre-determined set of criteria. Hold each attorney accountable for using those criteria.

    ·   Conduct thorough research and investigation – Some of the most common errors include failure to correctly apply the law, failure to determine a deadline, inadequate discovery and investigation, poor planning, and errors in the choice of procedure. The attorney of record should review staff work to ensure the accuracy of their work.

    ·    Avoid conflicts of interest and matter – Avoiding conflicts of interest involves establishing and updating a database of all clients and matters handled. To avoid conflicts of matter, create the practice of circulating a “new matter memo” to all attorneys and support staff whenever the firm accepts a new case. 

    ·   Never become inappropriately involved in a client’s interests – Accepting a director role in a client’s company, investing in a client’s securities, transacting business deals with a client, agreeing to contingent cash fees, and soliciting investors for a client’s business can result in a host of problems.  For example, the firm could be held liable for the attorney’s activities as the director in a client’s company or face conflict of interest charges because of an attorney’s personal involvement or investment in a client’s business.

    ·   Document all work – Establish a system for verifying the accuracy and content of all documents such as letters, briefs, contracts and motions. Also create separate files to store all documents prepared or received for each client matter.

    ·   Avoid fee disputes – Document fees and the scope of work in all matters. Bill on a monthly basis unless the client has asked for a different arrangement. Provide the client with detailed billing statements that include who performed the work and how much time was required.

    ·   Never delude yourself into believing you are immune from a malpractice suit – Your best defense is to remain acutely aware of how prevalent malpractice suits have become. It is this awareness that will motivate you to establish and maintain effective loss control procedures.

    Dog Bite Prevention

    If you own a dog, you should be aware that it is not completely unlikely that your dog may bite. According to 2009 figures from the CDC, approximately 4.5 million Americans are bitten by dogs every year. Of these bites, about one in five result in wounds that require medical attention. Furthermore, the property/casualty industry pays out hundreds of millions of dollars to satisfy dog bite claims each year. But you can take steps to make it less likely that your dog will bite.

    Prior to bringing a dog into your household:

    * Speak with a professional such as a veterinarian, animal behaviorist, or a responsible breeder to find out which breeds of dogs are the best fit for your household.

    * Dogs with aggressive natures are not appropriate for households with children.

    * Pay attention to cues that a child is apprehensive about a dog. If a child seems fearful of dogs, wait before bringing a dog into your household.

    * Before buying or adopting a dog, spend time with it. Exercise caution when bringing a dog into a household with an infant or toddler.

    If you decide to adopt or purchase a dog:

    * Spay or neuter your pet since this action reduces aggressive tendencies.

    * Don’t ever leave young children or babies alone with a dog.

    * Don’t play aggressively with your dog. Avoid wrestling or tug-of-war games.

    * Teach your dog submissive behaviors such as rolling over to expose the abdomen, and giving up food without growling.

    * Seek professional advice from a veterinarian or responsible breeder if the dog develops aggressive or other unwanted behaviors.

     Teach children special safety precautions to take around dogs:

    * Children should not approach an unfamiliar dog

    * Don’t run from a dog or scream

    * If an unfamiliar dog approaches, remain motionless

    * If knocked over by a dog, roll into a ball and lie still

    * Report stray dogs or dogs displaying unusual behavior to an adult.

    * Avoid making eye contact with a dog.

    * Do not disturb a dog that is sleeping, eating, or caring for puppies.

    * If bitten, immediately report the bite to an adult.

    Be a responsible pet owner and protect yourself and others from dog bites, pain and suffering, as well as insurance claims!

    The EEOC Strengthens Commitment to Filing Class Action Suits

    In 2006, the Equal Employment Opportunity Commission changed its strategy when it announced plans to file more class action suits. This shift was predicated on the decrease in the number of private-sector discrimination-related class action suits and increase in wage-hour class actions. As a result of this decline in discrimination class actions, the Commission’s position may indicate a trend toward more government-led class actions in this area.

    The EEOC is in a unique position to litigate this type of suit because it is not required to meet the strict requirements to maintain a class action set forth in Rule 23 of the Federal Rules of Civil Procedure. In addition, the agency isn’t hampered by considerations of whether the monetary compensation won will be worth the expense of a trial.

    The Commission is also spurred on in its decision by the belief that a national approach to litigating workplace civil rights is necessary due to a lack of consistent effort on the part of the private sector. The Commission itself is guilty of not identifying widespread discrimination in the past, and this shift is seen as attempt to make the agency more proactive.

    What means will the agency use to evaluate which cases require class action treatment? Its primary sources will be:

    ·               Data gathered through EEO-1 surveys of private employers of 100 or more employees

    ·               Analyses designed by private statisticians who act as consultants to the Commission

    ·               Charges filed by claimants

    ·               Its own databases

    ·               Pending litigation

    ·               Long-term analysis of EEO-1 reports

    In light of this emphasis on rooting out systemic discrimination, employers need to be increasingly vigilant. Here are some guidelines that can help you prevent becoming party to an EEOC-initiated class action suit:

    1.                  Keep your affirmative action plans updated so that when analyzing, the data will identify problem areas in recruitment, hiring, transfer, promotion, compensation, termination, or other terms and conditions of employment.

    2.                  Review the criteria used for hiring, firing and other personnel decisions to identify standards or actions that can be perceived as discriminatory.

    3.                  Review instances in which a personnel decision impacted negatively on an employee or employees to be sure that all criteria used to make the decision was job related and the result of the need to maintain business operations.

    4.                  Provide updated training for management involved in interviewing, hiring, job assignment, compensation, job advancement, and termination to ensure that they understand their obligations under the equal employment opportunity laws.

    5.                  Inform management of the negative impact that e-mails have on the defense of claims, especially if careless phrases are used, insulting comments are made or e-mails are used for inappropriate purposes.

    6.                  Publish company policies that spell out a zero tolerance for all forms of discrimination, harassment, and retaliation. Train non-management employees in those policies and their obligation to report immediately any actual or perceived harassment, discrimination, or retaliation.

    7.                  Post and regularly distribute policies regarding reporting harassment, discrimination, or retaliation.

    8.                  Develop a program through which employees receive severance pay or other consideration in exchange for executing binding releases that comply with the Older Worker Benefit Protection Act.

    9.                  Keep and regularly review electronic data to identify potential problems and to avoid the possibility of it becoming damaged.

    Take Steps to Prevent Workplace Bias Claims Before They Happen

    The Equal Employment Opportunity Commission recently reported that work-related bias complaints increased to 75,768 during 2006 compared with 75,428 the previous year. Discrimination complaints had previously risen to a seven-year high of 84,442 in 2002, but then steadily decreased from 2003 to 2005. The most frequent complaints have remained consistent throughout the years, including allegations of discrimination based on race, sex or retaliation.

    This upward trend in the number of suits filed should raise alarms for employers everywhere. The legal cost to defend an allegation of discrimination that reaches trial has been estimated between $75,000 and $200,000. This doesn’t include hidden costs like work time lost because of gathering evidence or giving depositions. It also doesn’t include costs associated with an appeal or with payment of a final judgment.

    The National Center for Preventive Law (NCPL) at the California Western School of Law in San Diego recommends that employers practice what it refers to as “preventive law.” That means assessing legal risks and instituting solutions to prevent them from occurring.

    To assist employers in creating an effective prevention program, NCPL has established the following guidelines:

    ·            Manage Compliance – Develop a corporate policy regarding discrimination and document in the employee handbook. Document the specific ways in which corporate policy enforces compliance. Maintain a record keeping system that indicates what actions were taken if policies were violated.

    ·            Contain Risk – Identify overt employee conduct that could lead to a lawsuit. Also look for less obvious misconduct that encourages or promotes discrimination.

    ·            Respond to Change – Maintain the longevity and continuity of your policies by including mechanisms that allow for necessary updates caused by new business activities or other organizational developments.

    ·            State Compliance Policy – Take every opportunity to restate corporate compliance policies, including such practices as having department managers discuss them during departmental meetings or by distributing fliers that remind employees about these policies.

    ·            Top Level Endorsement – Provide continuing opportunities for senior management to oversee and promote corporate compliance policies.

    ·            Create Compliance Accountability – Hold all staff members accountable for compliance in every activity they initiate or oversee.

    ·            Ensure Program Fairness – Be sure practices treat all employees fairly and guard against retaliation for raising compliance issues.

    ·            Maintain High-Level Oversight – Establish a Compliance Officer who has the authority to initiate, coordinate and review corporate compliance efforts.

    ·            Reward Success – Promote continued compliance through rewards such as monetary compensation.

    Will Your Insurance Protect you from a Facebook Lawsuit?

    Mostly everyone knows that the use of social media has grown by leaps and bounds over the past decade.  What many people don’t realize are the unique risks that come along with social networking. Anyone using Facebook, MySpace, LinkedIn, or other social networking sites should exercise extreme caution in what they decide to say on-line.

    As an example, in 2009 a teenager in New York sued some of her classmates and their parents, accusing the classmates of bullying and humiliating her in a Facebook Forum.   Whether or not the allegations are true, the teenagers and their parents require legal resources to pay for the possible judgments against them.

    Many people believe a standard homeowner’s insurance policy will cover them in such a situation.  In fact, it probably will not provide the necessary coverage.  A standard policy covers bodily injury or property damage done to someone else.  It defines bodily injury as sickness, harm or disease, and it defines property damage as destruction of or injury to physical property.  Neither definition includes publishing or saying something that injures another person’s reputation. Hence, the policy is not likely to cover a Facebook post.  In other words, the policy is unlikely to cover the act of making someone else feel miserable due to social networking.

    A good source to consider for additional coverage is a personal umbrella policy.  This kind of policy provides additional insurance in circumstances where a loss has depleted the amounts of liability insurance offered under a homeowner’s policy.  Umbrella policies usually have a deductible of $250 to $500; but have the potential to protect the policyholder from financial devastation.  

    As Americans become more exposed to risk through social networking, they should choose their words carefully on any social networking site.  Additionally, they should speak with an insurance professional to see if an umbrella policy is a good match for their insurance needs in an increasingly risky world. 

    National Council on Compensation Insurance Says Younger Workers Are More Accident Prone

    According to a study conducted by the National Council on Compensation Insurance, younger workers have more injuries and illnesses than older workers; but older workers have higher costs per claim. The researchers discovered that age is an important factor in overall claim costs, but the significance of age on claims frequency has lessened. This has been interpreted to mean that age may not play an important role in future frequency trends. However, the relationship between age and claim severities is basically unchanged.

    Factors associated with age, such as average wages, claim durations, lump-sum payments, injury diagnoses, and number of medical treatments, comprised a large part of the reason for the differences in the severity of claims between younger and older workers. The differences in wages and duration of claims were the principal reasons for the differences in the amount of payouts between younger and older workers. Differences in wages accounted for approximately one third of the differences in the amount of payout, while the differences in the duration of claims accounted for almost one half the difference.

    Older workers experience more high cost injuries, such as injuries to joints like rotator cuffs and knees. These were more commonly experienced by workers aged 45-64.  Workers aged 20-34 more commonly experienced ankle sprains. Carpal tunnel syndrome and injuries to the lower back are among the top 10 diagnoses for workers of all ages. The researchers pointed out that the differences in the types of injuries only comprised about a quarter of the difference in medical severities between younger and older workers. The real factor influencing the difference in medical severities between older and younger workers was the significantly higher number and different mix of treatments within a diagnosis. This alone accounted for 70 percent of the difference.

    Less than 10 percent of the difference in medical severities is due to a slightly more costly mix of treatments for older workers. This was reflected in small differences in the average prices of different types of medical services. The greater number and different mix of treatments also contribute to the longer duration of payments for older workers.

    As for trends in loss costs, the researchers noted that the baby boomers’ impact was apparent when the data was viewed historically, but the major impact of this aging workforce has probably already occurred and employers should not anticipate that the aging workforce would present a major problem in terms of future claims costs.

    Study Shows Driving while Drowsy is Dangerous

    The Prevalence and Impact of Drowsy Driving, a brand new study by the AAA Foundation for Traffic Safety, indicates that two in every five surveyed drivers admit that they have fallen asleep at some point in time while driving. Of those drivers responding in the survey, over a quarter admitted being so sleepy as to have had difficulty keeping their eyes open during their past month of driving time.

    The study was partly based on the responses that 2,000 Americans gave to telephone surveys. According to the responses, researchers found that one in ten drivers reported falling asleep in the past year of driving. The researchers pointed out that one of the biggest mistakes made by drivers is simply underestimating just how tired they really are and overestimating their capability of dealing with tiredness while driving.

    Another portion of the analyzed data was derived from crash data that the National Highway Traffic Safety Administration (NHTSA) collected during 2008 and 1999. From this data, researchers estimated that 16.5% or around one in every six fatal road and highway crashes involved someone driving while drowsy. More than half of all driving while drowsy accidents involved a single vehicle leaving its appropriate traveling lane. It further found that lane departure accidents were almost seven time more likely than alternative types of drowsy driver crashes. Thirteen percent or around one in every eight of road and highway vehicle crashes required hospitalization. Other interesting statistics among crash-involved drivers include:

    * Men were 61% more likely than women to have been drowsy.

    * Those drivers under 25-years-old were 78% more likely to be drowsy than their counterparts over 40- years-old.

    * Single drivers were 81% more likely to have been drowsy than those with a passenger.

    Researchers say that the main component is attitude, as there seems to be an overwhelming amount of drivers that are indifferent or complacent about driving safety; highway and roadway crashes and tragedy are seemingly acceptable and thought of as the price to be paid for enjoying the extensive mobility afforded to Americans. There doesn’t seem to be any consideration by drowsy drivers toward the fact that they are not only placing themselves at a risk, but putting every single person on American roadways and highways at risk too.

    In relation to travel, experts suggest starting off early and getting a good night’s sleep instead of starting extended travel following a regular work day. Using common sense about driving and tiredness is also recommended – if tired, don’t start driving and if driving tired, do whatever necessary to remove oneself from the roadway until rest is obtained.

    Naturally Occurring Substances Can Expose Construction Firms to Environmental Liability

    What do silica, mercury, arsenic, pyrite, and asbestos have in common? They all are recognized as toxic substances, or contain toxic substances as defined by the U.S. Environmental Protection Agency. Their very presence on a construction site presents a serious exposure for a construction contractor.

    There are potentially hazardous consequences when these toxic substances are uncovered during construction:

    ·   Mercury – is a human neurotoxin; meaning it acts specifically on neurons or nerve cells. It is most hazardous to developing fetuses and small children. Eating mercury-contaminated fish is the way most humans become exposed. When mercury enters water, certain conditions can cause it to convert to methyl mercury. Methyl mercury is ingested by aquatic creatures and becomes more concentrated as it moves along the food chain. Humans receive the highest forms of concentration because they are at the end of this food chain.

    ·   Pyrite – has a high sulfur content, which if exposed to oxygen or water will form sulfuric acid. When a construction project releases significant amounts of pyrite into the surrounding area, it can result in high amounts of acid drainage, which enters surrounding bodies of water. The acid drainage contaminates streams and water wells of area residents.

    ·   Asbestos – has little or no impact on the environment and human health if left undisturbed. However, when construction releases natural asbestos fibers into the atmosphere, it exposes workers and residents of the surrounding area to respiratory hazards. Asbestos is known to cause cancer of the lungs and of the lining of internal organs.

    ·   Silica – is most dangerous in the crystalline form known as silicon dioxide. People who have been exposed to silica and contract silica-related respiratory conditions usually have inhaled tridymite or crystobalite contained in the dust released during construction. Although all forms of crystalline silica are different in chemical structure, all can eventually be deadly.

    ·   Arsenic – has been linked to cancer of the bladder, lungs, skin, kidney, nasal passages, liver, and prostate. Non-cancer effects can include thickening and discoloration of the skin, stomach pain, nausea, vomiting, diarrhea, numbness in hands and feet, partial paralysis, and blindness.

    What specific implications does the presence of these toxic substances have on environmental liability insurance?  Many of these policies contain wording that excludes these naturally occurring substances from the coverage. In Contractor’s Pollution Liability Insurance (CPL), there are several ways exposure to naturally occurring hazards may be excluded. For example, the insurer could include a specific exclusion for naturally occurring substances in the exclusions section of the policy. No coverage would apply to claims based upon any naturally occurring substances in their unaltered form, or in an altered form due to naturally occurring processes.

    A second way to exclude these substances from coverage is to exclude them by definition. In the policy’s definition of covered pollution conditions, the definition does not include naturally occurring substances. Pollution conditions are defined as the emission, discharge, dispersal, release or escape of pollutants, which are not naturally occurring. This negates coverage for these substances.

    Does this mean you shouldn’t purchase a CPL policy? The answer to that question would be “no.” There are a number of different policy forms. Talk to your insurance agent to get the one that is best suited to your needs.

    Is Your Cyber-Policy Really Covering Your Technology-Related Exposures?

    As businesses become increasingly reliant on technology to store sensitive information, the incidences of security breaches are becoming more prevalent. Each security breach increases the risk that a lawsuit or regulatory action could financially ruin a company and permanently damage its reputation. The situation is so bad, that some retailers and financial institutions targeted by litigation and regulatory actions are trying to hold their technology vendors accountable so they can transfer some of the fallout.

    Many companies find themselves financial victims because they don’t buy insurance that addresses the many exposures related to security breaches. In some instances, a breach can trigger the need for a number of coverages, including crime, errors and omissions, employment practices liability, general liability, property and directors and officers liability. The so-called “cyber” policies address only one aspect of the exposure, the theft of information, money and identities through the Internet. That’s because these are major problems that are on the rise. According to Privacy Rights Clearinghouse, since February 2005, there have been more than 260 major security breaches involving nearly 100 million personal records. But if a company has only this basic coverage, they may not be prepared if disaster strikes. They should consider a more company-wide approach that includes insurance coverage for all possible exposures associated with a breach.

    At the very least, your cyber policy should provide coverage in the following general risk areas:

    ·   Defense Coverage – Some policies limit the insurer’s duty to defend to actual lawsuits. That means that the insurer isn’t required to defend the insured against a claim, which may or may not result in a lawsuit. Others extend the duty to defend to all claims. You should look for the provision to defend against all claims in a cyber policy. You also need to review the policy in terms of who has the right to choose the attorney who will defend the claim. Many insurers can provide a choice of counsel provision that allows the company to make that choice. Talk to your insurer about having this provision incorporated into your policy.

    ·   Business-to-Business Coverage vs. Business-to-Consumer Coverage – If you want coverage for either or both of these risks, you have to make this known to your insurer. You need to be sure that the various exclusions and/or conditions necessary to minimize gaps in either coverage are present in your policy. These include electric/mechanical breakdown exclusion; breach of security exclusion; bodily injury/property damage exclusion; and employee malicious conduct exclusion.

    ·   Intellectual Property Infringement Coverage – All cyber insurance policies provide some level of intellectual property infringement coverage. However, some policies offer less coverage than others. Some even exclude coverage for software copyright infringement. Review the policy before you purchase to understand how much protection you have in this area. Most insurers are willing to insure software copyright infringement risk for an additional premium.

    Remember, cyber insurance is like health insurance, you should customize your coverage to suit your company’s needs. Your best defense is to talk with your insurance agent to develop a plan that is right for you.

    Beware of the Scam of Fake Auto Accidents

    Many think of fraud as a non-violent type of crime. In reality, vehicle insurance scams, including the staged traffic accident, are far from non-violent. Aside from costing honest consumers hundreds to thousands of dollars in added insurance premiums, this steadily growing form of fraud has resulted in countless injuries and deaths to the innocent victims of the scams.  In fact, data from the NICB (National Insurance Crime Bureau) shows that staged traffic accidents have rapidly become a leading source of insurance fraud across the U.S.

    How Does It Work?

    These criminally staged collisions frequently involve several suspects driving a car. The victim is the driver of another vehicle that’s being targeted by the suspects staging the collision for their own financial gain.

    The suspects will most often use one of two techniques:

    1. Swoop and Squat

    Two or more suspects drive two different vehicles. They target an unsuspecting vehicle, most often an older model that only contains one victim. This is done so that there will not be any witnesses to the collision. The one or two suspects in the squat vehicle position their car in front of the vehicle driven by the victim. They slow to create a smaller space gap between themselves and their victim. Then, the swoop vehicle suddenly changes lanes to cut in front of the squat, thereby causing the squat vehicle to throw on breaks and stop. As a result, the innocent victim rear-ends the squat. Meanwhile, the swoop vehicle is long gone and the squat vehicle is claiming that an unknown vehicle cut them off and forced them to brake.

    2. The Drive Down or Wave On

    In this version, the suspect(s) are stopped at the entrance to a parking lot or an intersection. They wave on or yield the right-of-way to the victim. When the victim proceeds, the suspect intentionally accelerates to collide with the victim.

    What Can Drivers Do To Reduce The Risk Of Being A Victim?

    * Stay aware of your surroundings, paying close attention to what the vehicles several in front, behind, and beside you are doing and maintaining sufficient room between you and all other vehicles.

    * Use caution when making a turn in front of another vehicle, even if they yield the right-of-way.

    * Since suspects tend to look for innocent drivers that accidentally cross the center line and then sideswipe them, pay close attention to staying within the lines of a lane.

    * After any accident, count the number of passengers and get their personal information. You may find that more people are listed on the insurance claim than actually in the accident.

    * Avoid driving when you’re stressed; preoccupied with a cell phone, map, or food; or lethargic. All of these lessen the care at which you drive and your concentration abilities, thereby increasing your vulnerability.

    * Have a camera in your vehicle to take photos of the scene, license plates, and the occupants of the other vehicle you have an accident with.

    * Always call the police and get a copy of the police report. If the damage to the other car is minor, then ask the officer to specify this on the report, as this will make it more difficult for the other party to create more damage for a larger claim.

    * Alert the authorities if you feel the accident was staged.

    In closing, these staged traffic accidents often have criminal elements that reach far beyond just the suspected drivers. It’s often a criminal collaboration between unscrupulous doctors and attorneys that willingly and knowingly assist in the fraudulent insurance claim process.

    More Workers’ Compensation Claims Made As the Result of Work-Related Traffic Accidents

    According to the Network of Employers for Traffic Safety, both on- and off-the-job motor vehicle crashes cost employers $60 billion annually from 1998 through 2000. The problem is so widespread, that in a recent study, the National Council on Compensation Insurance Inc (NCCI) noted that traffic accidents are the leading cause of accidental deaths in the United States. The study also said that workers’ compensation claims resulting from motor vehicle accidents are more severe than the average claim. Although they make up approximately 2 percent of all claims, they account for more than 5.5 percent of all losses because they cover a disproportionate share of the most severe claim types.

    While workers’ compensation claims from motor vehicle accidents are growing, their frequency is declining but at a slower pace than for workers’ compensation claims in general. There are some other important characteristics about these claims that the NCCI noted in its study:

    ·   They almost always involve time lost from work.

    ·   Neck injuries are the most frequent diagnoses in these claims.

    ·   The average duration for a motor vehicle claim is 70 percent longer than for other types of claims.

    ·   They are three times as likely to involve a claimant attorney as compared to other types of claims.

    The leading cause of these claims is a traffic accident that happened because the driver became distracted. The study revealed that almost 80 percent of the crashes and 65 percent of the near crashes resulted from the driver becoming distracted within three seconds of the event. The chief causes of the distraction were drowsiness and cell phone use.

    The researchers had some specific suggestions regarding the steps employers can take to reduce the frequency and severity of these claims:

    ·  Encourage your employees to use seat belts – Failure to use seat belts cost employers roughly $2.1 billion yearly from work-related crashes between 1998-2000.

    ·  Be sure your employees never drive under the influence of alcohol – During 1998-2000, work-related crashes that resulted from drivers being intoxicated cost employers $3.1 billion annually.

    ·  Encourage employees to take defensive driving courses – These courses teach drivers how to react during an emergency so as to lessen the severity of the accident or avoid it all together.

    ·  Provide internal driver’s education courses – Teach employees good driving practices like pre-planning the trip route, realistically estimating how long the trip will take, being sure the vehicle is in good condition before hitting the road, and informing colleagues about travel plans.

    New Study Shows Texting Bans Are Ineffective at Crash Reduction

    There are currently thirty states that have made it illegal for motor vehicle operators to text while driving a vehicle. The bans were made in an effort to reduce vehicle crashes. But, since texting is only one known element of distracted driving, some people have long questioned what the effectiveness of such laws would be on accidents related to distracted driving.

    A new study by the Highway Loss Data Institute (HLDI) now shows that there has not been any reductions in crash statistics following texting bans. Contrarily, following texting bans, the study found that there is actually a slim increase in how many collision coverage insurance claims are filed for crash-related damage. The findings were very similar to a previous HLDI study concerning driving and handheld cellphone usage, which ultimately found that banning handheld cellphone use during driving didn’t decrease the number of vehicle crashes.

    The new HLDI study looked at insurance claims for vehicles less than ten-years-old during the months prior to and following the July 2008 texting ban in Louisiana, January 2008 texting ban in Washington, August 2008 texting ban in Minnesota, and January 2009 texting ban in California. To ensure that collision claim changes not related to texting bans, such as from seasonal driving pattern changes, were controlled, the claims made in the above four states were compared with those made in nearby states that hadn’t substantially altered their texting laws during the time frame of the study.

    When the data was compared, HLDI found that banning texting while driving hasn’t reduced the number of vehicle crashes. In fact, crash numbers actually increased after texting bans in three of the four states involved in the study. The data could be an indication that texting bans create an added risk from drivers that recognize texting is illegal, but continue texting anyway. These drivers may attempt to hide their phone from the view of law enforcement, thereby lengthening the amount of time and distance that their eyes are taken from the road. The texting and handheld cellphone ban findings from the HLDI studies may also indicate that singling out and banning one source of distraction over another isn’t an effective approach to address the overall problem of vehicle crashes caused by distracted driving.

    Federal Rules Governing Civil Litigation Require Businesses to Keep Better Tabs on e-Documents

    New rules, which took effect on December 1, 2006, require U.S. companies to keep better track of their employees’ e-mails, instant messages and other electronic documents in the event the companies are sued. These new rules are part of amendments to federal guidelines governing civil litigation and were approved by the Supreme Court in April 2006 after a five-year review.

    Under the new rules, a company that is party to federal litigation must produce electronically stored information as part of discovery. This is the process by which both sides share evidence before a trial. Federal and state courts have already been requiring such evidence in individual cases. The new rules now make the production of such evidence mandatory for companies involved in federal lawsuits. Furthermore, any information technology employee who copies over a backup computer tape once a lawsuit has been filed could be accused of committing “virtual shredding.” Companies are still permitted to purge databases if the information they contain isn’t relevant to pending cases or cases the company anticipates being a party to in the future. However, sectors, such as financial services, remain subject to the data-retention rules they have always followed. In-house attorneys and IT staff will have to work together to ensure routine erasing of backup data doesn’t present legal issues. Lawyers must also know where company data is stored.

    Many large companies are unaware of the data they have on hand, which makes them unprepared if sued. Because they lack a real knowledge of what data they house and where it is located, these companies are more likely to settle lawsuits to avoid the costs associated with electronic discovery. Better organization of the data will lower these costs and enable companies to avoid settling.

    On the other hand, large companies are likely to face higher costs from organizing their data. The new rules make it necessary for companies to know about items more difficult to track, like work-related digital photos on employee cell phones and information on removable memory cards. As a result, firms that help businesses track and search their electronic data are experiencing a huge surge in new business.

    Most legal experts agree that it isn’t a question of companies changing how they keep electronic files, but rather a question of having a more complete knowledge of where documents are stored. The new rules also provide more direction as to how electronic evidence is to be handled in federal litigation. This includes guidelines on how companies can be exempted from providing data that isn’t reasonably accessible, which could lessen the burden of electronic discovery.

    Third Party Coverage Is a Key Coverage of Employment Practices Liability Insurance

    The purpose of third-party coverage in an Employment Practices Liability (EPLI) policy is to protect an organization and its employees from accusations of wrongful acts committed against customers, clients, vendors, and suppliers. Some EPLI policies also cover wrongful acts committed by third parties against the insured’s employees.

    Harassment and all forms of discrimination are covered under wrongful acts. Discrimination claims include discriminatory practices against a person based on their race, religion, age, sex, national origin, disability, pregnancy or sexual orientation. Harassment involves unwanted sexual advances or requests for sexual favors. Both verbal and physical conduct, as well as other forms of harassment that create a hostile or offensive work environment, are covered. Some policies also cover accusations of mental anguish, emotional distress, humiliation and assault.

    If your organization has a lot of interaction with the public, it is especially vulnerable to third-party claims like those described above. In some cases, EPLI carriers may not provide third-party coverage to firms with a high potential for claims. What they might offer instead is limited coverage, such as covering accusations of discrimination, but not harassment claims.

    To protect your organization from third-party claims, you need to go beyond just purchasing coverage. You must implement policies and procedures that address discrimination and harassment issues, both from the standpoint of an employee’s actions and the actions of third parties. EPLI insurers are increasingly requiring employers to implement these practices before they will issue a policy.

    Having policies in place will offer little help to stop third-party claims if employees aren’t adequately trained. New employee orientation programs should include a presentation outlining the organization’s harassment/discrimination policies. The training must also include how to report and handle a third-party claim. However, hearing the information once is not enough to insure compliance. Employees must be periodically retrained through departmental meetings. To maintain the effectiveness of departmental training sessions, be sure that supervisors are provided with copies of all policy updates and procedural changes.

    One important caveat to keep in mind is that most EPLI policies don’t provide third-party coverage for accusations involving the violation of the Americans with Disabilities Act. Nevertheless, you should review your EPLI policy’s definition of a claim to determine the policy’s interpretation. Many policies define a claim as a “demand for monetary damages.” This definition can present a problem in an ADA claim, because many of these claims are asking for reasonable accommodations, not monetary awards. That’s why it is important to ensure that your policy’s definition of a claim includes claims for non-monetary damages. A policy with this expanded definition will cover defense costs and indemnity connected with an ADA claim, but will not provide the funds to bring your organization into compliance with the provisions of the law.

    UFOV Training and Testing: Helping Older Drivers Stay Independent, Mobile, and Safe

    The potential for isolation, lower self-esteem, and loss of independence makes not being able to operate a vehicle one of the most dreaded and devastating factors of growing old. Over the last few decades, the safety of older drivers has been a highly researched public health concern. The focus of this research has evolved, bringing with it better understanding and more comprehensive ways to address the issue.

    The National Institute on Aging’s Division of Behavioral and Social Research has funded a significant amount of aging and driving research over the years. Research into one concept called useful field of view or UFOV has been particularly instrumental in assisting elderly drivers to regain their safe driving skills. But, current UFOV training and testing has been a long process:

    Do Older Drivers Pose A Risk?

    In the 1960’s, early driving safety research mainly focused on the effect aging had on driving skills and whether or not elderly drivers posed any public safety risk. Most studies discovered that younger drivers actually had more accidents than their older counterparts. However, the risk of fatal or injury-producing accidents and the risk of accident in proportion to miles driven were both higher among older drivers.

    What Factors Impact Driver Performance?

    In the 1970s, most research shifted to focus on the specific factors behind driving skill losses. Decreased visual acuity, cognitive function losses, and visual field losses were among the top factors that impacted driver performance. Other factors found to have an impact on driver safety included muscular, joint, ligament, tendon, and nerve disorders; cardiovascular disease; and usage of certain medications. However, researchers still couldn’t show a firm correlation between cognitive or vision function declines in older drivers and their involvement in vehicle accidents. Some researchers now attribute this problem to the separate measures that the researchers were using to singularly test vision and cognitive function impacts on driver safety, which didn’t account for the cognitive and visual performance interactions needed to manage the various driving distractions.

    Can Older Drivers Retain Driving Skills?

    In the 1980s, researchers not only focused on identifying the possible factors reducing older driver safety, but also started to explore possible interventions to solve the driving skill decline associated with growing older.

    Drivers must be able to simultaneously focus on their front field of view; use their peripheral vision to monitor movements and objects beside them; distinguish informational stimuli, such as pedestrian crossings, school and work zones, stop signs, merges, and car signals around them; determine their own speed and estimate the speed of others; and make driving judgment calls, such as distancing, passing, and the timing of traffic lights.

    The NIA’s Division of Behavioral and Social Research tackled the above complexities of driving by focusing on UFOV. This is the attention window in which a driver can quickly be alerted to visual stimuli. It measures how well a driver can notice, localize, and identify suprathreshold targets within their environment. Since a suprathreshold target is something that’s in a driver’s peripheral vision field and wouldn’t attract attention unless it’s a hazard, UFOV involves both vision and cognitive processes.

    The Surface Transportation Assistance Act of 1987, which called for the investigation of the problems affecting the safety and mobility of older drivers and possible solutions, gave UFOV research a huge boost.

    The National Academies of Science Transportation Research Board recommended ways to advance UFOV research in a 1989 report and the National Institutes of Health (NIH) established the Human Factors in Aging initiative. University of Alabama at Birmingham researchers were among some of the first to receive UFOV funding. This research showed that while older adults were more apt to have a lesser UFOV than their younger counterparts, UFOV maintenance and loss is very individual. It’s very possible for many older adults to maintain an adequate UFOV into the eighties.

    Early UFOV Testing And Training

    In the 1990s, the above research had thoroughly documented that impaired mental status and/or visual function can result in UFOV declines. And, by the late 1990s, research showed that older drivers with a UFOV impairment of greater than 40% were almost twice as likely as those without impairments to be involved in an accident within the next few following years. Research also concluded that older drivers with UFOV limitations could improve their UFOV by thirty to sixty percent from participating in speed-of-processing training thirty minutes a day for five days. While the training typically showed improved driving skills for up to eighteen months, some drivers didn’t retain the skill as long and needed booster courses.

    UFOV Testing And Training Today

    Thanks to the NIA and the many public and private research teams throughout the years, UFOV testing and training is now available to help many older drivers retain their driving skills, retain their mobility, and operate safely:

    * Florida, Maryland, and California use UFOV testing.

    * Drivers that pass the UFOV test are offered an insurance discount at State Farm Auto Insurance Company.

    * As of 2009, the AAA Foundation for Traffic Safety, a non-profit AAA affiliate, recommends the DriveSharp program.

    * UFOV training programs are offered by TransAnalytics Health and Safety Services.

    * Researchers are currently investigating using an in-car method in determining UFOV performance and alerting older drivers of their performance.

    * One recent study supported by NIA found that the benefits of UFOV also included a decrease in depression and improvement of health-related quality of life.

    In closing, UFOV testing and training programs have been a long time in the making and show great potential to make big differences in age-related restrictions on driving.

    Proper Maintenance Can Help Businesses Prevent Weather-Related Slips and Falls

    It’s that time of the year when snow, sleet and ice are a fairly common occurrence in many parts of the country. Such weather conditions pose serious problems for business owners because walkways become slippery and increase the chances for employees and customers to fall.

    While you can’t control the elements, you can reduce your liability by staying alert and eliminating hazards that cause falls. One such hazard is the accumulation of ice and snow that results because deicing measures were inadequate or not properly applied.

    The first step in effectively deicing a walkway is to choose the correct treatment. When selecting chemicals to melt ice, keep the following points in mind:

    ·   Rock salt is the most common method and the least expensive of the ice-melting chemicals. It is easy to find and can melt snow and ice until the temperature drops below 20є F. Rock salt, however, also releases a large amount of chloride when it dissolves. This chloride can pollute streams, rivers and lakes and kill vegetation. It also causes metal to corrode.

    ·   Calcium chloride is a deicing agent that is manufactured in small, round, white pellets. It melts snow and ice even when the temperature falls below 0є F. It is much less toxic to plants than rock salt, but it can still damage them if applied too heavily.Calcium chloride can corrode concrete.

    ·   Potassium chloride is a deicing chemical that doesn’t irritate skin or harm vegetation. However, it only melts ice when temperatures remain above 15є F. It must be combined with other chemicals to melt ice at lower temperatures.

    ·   Magnesium chloride melts snow and ice until the temperature drops below -13є F. It releases nearly 40 percent less chloride into the environment than either rock salt or calcium chloride. It is also less damaging to concrete surfaces and is less toxic to plants, trees and shrubs.

    Once you have selected your deicing agent, follow these tips from the Iowa Transportation Center at Iowa State University to be sure you maintain an ice and snow-free walkway:

    ·   Apply deicing chemicals before a storm and remove snow/ice during and after the storm. Use plenty of deicing materials. Using too little will leave patches of ice.

    ·   Aim for evaporation. If the water can drain and there is full sun or even reasonable wind, the ice will evaporate. Dry pavement is a clear indication there is no ice.

    ·   Use a friction additive. Sand is the most popular because it’s inexpensive. Use enough to ensure that anyone walking on the surface has enough traction.

    ·   Check and treat surfaces every morning, especially around snow piles where melting may have created new problem areas. Reevaluate during the day and re-treat as needed.

    ·   Remember that a clean-looking surface is only “safe” if it is dry. A wet surface can quickly become icy in the shade or overnight.

    ·   Train those responsible for safety procedures how to safely maintain walkway surfaces during icy/snowy weather.

    Just Because You’re a Renter Doesn’t Mean You Don’t Have Insurance Needs

    Many renters mistakenly believe that they don’t need renter’s insurance or view it as an expensive luxury. However, insurance needs aren’t negated just because one happens to be renting their home.

    For those not familiar with renter’s insurance, it’s an insurance coverage that protects the renter from property losses from damages like water and fire. It also provides protection for liability risks, such as lawsuits brought by the landlord of the property, pet attacks, falls and slips, and guest accidents. This type of coverage is available in most areas and has an average $20 monthly premium rate for around $500,000 dollars worth of liability coverage and $20,000 dollars worth of property coverage.

    Trusted Choice, a network of financial and insurance service firms, recently found in a survey that almost 25 million American home renters didn’t have any insurance coverage to protect themselves from losses and that most renters have limited, if any, knowledge of renter’s insurance.

    Eight percent of the respondents without renter’s insurance had never heard about renter’s insurance before. Meanwhile, 17% said they weren’t aware that they needed renter’s insurance and 26% percent felt that renter’s insurance was too costly.

    According to the study, some renters also mistakenly believed that their insurance needs were covered under the insurance policy held by their landlord. In reality, landlords don’t typically insure anything other than the building and infrastructural elements like HVAC systems and elevators. Other losses incurred will be directly on the renter’s shoulders. Even negligent actions caused by one tenant, such as a fire, that affects other innocent tenants in the building aren’t typically covered by the landlord’s insurance.

    Other key findings of the study included:

    * Fifty percent of the surveyed renters owned pets. Thirty-two percent of the non-pet owners had renter’s insurance. Although renters that own pets have a higher liability exposure than renters without pets, a mere 26% of the pet owners had renter’s insurance.

    * Eighty-nine percent of the surveyed renters owned at least one expensive electronic device, such as a computer, camera, digital recorder, or home theater system. This group was more likely to have a renter’s insurance policy than those that didn’t own such devices.

    * Fifty-three percent of the surveyed renters owned at least one form of exercise or sports equipment, such as a skis, bicycles, or a home gym system. This group was more likely to own renter’s insurance than those that didn’t own such equipment.

    * Only thirty-one percent of the renters operating a home business from their apartment, condo, or other type of rental unit had renter’s insurance.

    What Should You Consider When Shopping for Lawyer’s Professional Liability Insurance?

    Controlling expenses is an important consideration in the management of any law firm, so it isn’t unusual that a firm shopping for liability coverage would take premium rates into consideration. However, even though rates are important, they shouldn’t be the overriding factor in your decision to purchase a particular policy. There are a number of other aspects you should consider to ensure you receive the best coverage for your premium dollar.

    The first of these considerations is whether your policy has eroding coverage.  In some liability policies, the coverage limits include defense costs. When you file a claim, the amount of coverage for settling the claim or paying a judgment against you decreases as you incur defense costs. This type of policy is referred to as having defense costs “inside” the policy. There are policies in which the defense costs are “outside” the policy, which means they are not subtracted from the amount of coverage. In some cases, policies with outside defense costs have a cap after which the defense costs are subtracted from coverage limits.

    The second consideration is whether the policy deductible includes defense costs. If the deductible is only applied to liability, the insured firm doesn’t have to pay it until there is a settlement/judgment. However, if the deductible includes defense costs, the insured pays as soon as defense expenses begin to mount until the deductible is paid in full.

    Another condition that you will want to note is whether your carrier can settle a claim without your consent. Some policies have what is known as a “hammer” clause that prevents the insurance company from settling without the consent of the insured. There is an extenuating circumstance to this clause in that, if the insured refuses to consent, the carrier is only liable for the amount for which it would have settled.

    You also need to determine if your policy gives you the right to select your own defense counsel. More than likely, if you are a small firm your carrier will retain the right to choose your defense counsel. This doesn’t mean that you won’t have any input at all. Most insurance companies have a panel of defense attorneys and generally allow the insured to select from this panel. Larger firms can typically select their own counsel but the carrier must approve.

    All current Lawyer’s Professional Liability policies are issued as “claims-made” policies, which means that a claim must be made and reported to the carrier within the life of the policy. To prevent coverage gaps if your firm is changing policies, you should select a new policy that has a “prior acts coverage” clause. This will extend your coverage so that any claims that existed before the new policy started will be covered. If you don’t have prior acts coverage, your former claims-made policy will not cover claims that developed after it expired and your firm will be without coverage for those claims.

    A number of changes in both federal and state court procedures have made sanctioning more commonplace. The cost to defend your firm against a sanction or to pay the monetary penalty associated with it can be extremely expensive. That’s why you will want to ensure your liability policy provides coverage for these occurrences.

    The final consideration is whether the policy requires a new deductible if there are multiple claims made in the same policy year. Some policies only require the deductible to be applied to the first claim made in a given policy year. Other policies treat the deductible on an aggregate basis. The policy will stipulate a specific deductible dollar amount per claim, with a cap on the total deductible dollar amount in the aggregate that the insured will have to pay before coverage begins. If neither of these scenarios is spelled out in your policy, your coverage most likely requires applies deductible for each claim.

    Workers’ Comp Employer Costs Rose Faster Than Benefit Payments in 2004

    According to a study released in July 2006 by the National Academy of Social Insurance, employer costs for workers’ compensation grew faster than combined cash and medical payments to injured workers in 2004, the most recent year for which data is available. Combined benefit payments for injured workers increased 2.3 percent in 2004 compared to prior year levels, while employer workers’ compensation costs rose by 7.0 percent for the same period.

    Combined benefit payments fell by 3 cents for every $100 of covered wages, from $1.16 to $1.13. The chief contributor to this decline was the state of California, where benefits dropped by 10 cents per $100 of covered wages. Nationally, premiums paid for workers’ compensation insurance rose by 3 cents per $100 of covered wages, to $1.76 in 2004. The increase was the smallest annual increase since 2001.

    Despite the recent rise in costs, both costs and benefits in 2004 remain far below their peak levels. Total benefits were at their highest in 1992 at $1.68 per $100 of covered wages, 55 cents higher than the 2004 figure. Employer costs were highest in 1990 at $2.18 per $100 of covered wages, 42 cents higher than in 2004.

    Since 2000, the rise in benefit payments has resulted from increased spending for medical care. Spending for medical treatment rose from 47 cents in 2000 to 53 cents per $100 of covered wages in 2004. Spending for cash payments to workers remained the same during this period at 60 cents per $100 of wages.

    There are specific actions employers can take to curb workers’ compensation costs. The first step is to examine accident records for the past three years. Take each year’s reports and examine as a whole. While reviewing look for specific accident causes and note hazards that should be remedied. You should also be looking for injury repetition and in which department injuries frequently occurred.

    The next step is to conduct a physical analysis of the workplace. Utilize your health and safety committee as the catalyst, but be sure workers are also involved. Look for equipment hazards that need replacement or repair. Then search for environmental hazards such as chemical exposures, noise, temperature and ventilation issues.

    The third step is to look for task or ergonomic hazards. Request employee input to encourage workers to take ownership of safety in their departments. When workers provide input, make sure actions resulting from their suggestions are documented in health and safety committee minutes and posted on bulletin boards in common areas. If employees do not feel their suggestions matter, they won’t bother to suggest improvements in the future.

    Protect Yourself from the Risks of Yard Sales

    With the arrival of warm, balmy weather, yard sales begin to pop up everywhere. While a yard sale may transform your spring cleaning chores into a profitable day of getting rid of unwanted items, it can also create a setting for a legal nightmare. For example, you’re legally liable if someone at the yard sale slips, trips, or falls and injures themselves. Such scenarios are exactly why you must know what your homeowner’s insurance covers before you take on the responsibility of inviting yard sale-goers onto your property.

    Most standard homeowner’s policies will provide $100,000 dollars worth of liability coverage for property damage or bodily injury that is caused to others by those living in the home. The coverage amount can be used to cover your legal defense and any resulting monetary judgments against you.

    No-fault medical coverage is another feature of your homeowner’s insurance liability protection. It usually provides between $1,000 to $5,000 dollars worth of coverage. This feature can help you avoid lawsuits from a person injured on your property since it will allow them to directly submit their medical-related bills to your insurer for payment.

    The above may seem adequate enough for a yard sale, but given today’s litigious mentality, it may be prudent for you to add to your liability protection. You might consider raising your homeowner’s policy’s liability coverage to at least $300,000 to $500,000, depending on your specific needs and property. An excess liability or umbrella policy can provide additional protection and won’t typically cost more than $350 a year for $1,000,000 worth of coverage.

    The Insurance Information Institute has an excellent guide on the insurance needs for various types of yard sale events:

    * Charity or fundraiser event – your homeowner’s insurance policy will most likely be adequate coverage during an event to raise money for a charity or non-profit. However, you might also consider contacting the entity to ask if they have any insurance protection to extend to you for the event.

    * Occasional or one-time events – the occasional yard sale that’s designed to sell personal items that you no longer want is also typically covered under your homeowner’s policy, but do consult your insurance agent to ensure you’re adequately covered.

    * Multiple, frequent yard sales – a separate business liability or in-home business policy should be considered if you’re planning to have multiple yard sales.

    Worker Found Eligible for Compensation from Seizure Related Injury

    In an August 2006 ruling, Connecticut’s Supreme Court ruled that the claimant in the case of Michael G. Blakeslee Jr. vs. Platt Brothers & Co, who was injured when co-workers tried to help during a seizure, is entitled to workers’ compensation benefits. Typically, workplace injuries caused by a seizure wouldn’t be eligible for compensation because the injuries arise from the medical condition itself and not from conditions in the work area. In the Blakeslee case, the claimant received two dislocated shoulders on February 13, 2002, when three co-workers tried to restrain him during his seizure. He had fallen near a large steel scale, and then started flailing his arms and legs as he regained consciousness.

    The claimant filed a workers’ compensation claim contending that because the actual injury resulted from the restraint, and not the seizure itself, the shoulder injuries should be covered. The claimant argued that an injury received during the course of employment is eligible for compensation even if infirmity due to disease originally set in motion the final cause of the injury. The claimant also asserted that an injury inflicted by a co-employee is eligible for compensation, unless the injured employee engages in unauthorized behavior or the injury is the result of an intentional assault.

    Initially, a workers’ compensation commissioner decided that Blakeslee was not entitled to workers’ compensation benefits. The commissioner determined that the claimant’s injuries resulted from a chain of events set off by a grand mal seizure unrelated to his employment. A workers’ compensation review board agreed with the finding. The review board stated that there is a prerequisite requirement for eligibility for compensation, which the claimant overlooked. The cause of the injury must arise out of the employment and work conditions must be the legal cause of the injury. The review board contended that the claimant’s seizure caused the need for first aid, which caused the injury. There was no element of the claimant’s employment involved.

    Five out of seven Supreme Court justices reversed the board’s ruling. They were not persuaded by the argument posed by Platt Brothers, and the employer’s insurer, Wausau Insurance Co., that finding for the defendant would be in direct opposition to public policy because it would prevent employees from assisting co-workers in future medical emergencies. The majority noted that the co-workers restrained Blakeslee to keep him from harming other employees as well as himself. Their actions benefited the employer. The action was directly related to the employment and would therefore be eligible for compensation.

    The two dissenting justices argued that the Supreme Court should not have accepted review of the case.

    Hiring a Nanny – Know and Manage Your Risks

    Many working parents have had their various issues and complaints with daycare and childcare centers. As an alternative to these forms of childcare, more and more parents are choosing to hire their own nanny or share one with another parent. However, many parents aren’t fully aware of the many financial risks involved with bringing a nanny into their home.

    When you hire a nanny, you’ve basically just become an employer. Did you know that your new nanny could cause you IRS problems if you improperly pay him/her and not withhold payroll taxes? Even if you withhold payroll taxes, you can still find yourself facing some costly penalties and fines if they aren’t calculated correctly and submitted on time. One way to eliminate this risk is by hiring a payroll provider to appropriately handle the taxes, just as any other employer would do.

    Another financial risk is being sued by your nanny following an injury on the job. This risk of injury is why it’s prudent to purchase worker’s compensation. Otherwise, you’d be responsible for paying all the benefits that your nanny would’ve received under such a policy and any penalties or fines that your state might impose. Before you falsely assume that your nanny’s injury would be covered by your umbrella liability policy or homeowner’s policy, it won’t. These policies typically exclude any injury where workers’ compensation would normally be due to the injured party.

    However, you will need an umbrella policy that includes excess employer’s liability coverage beyond that provided by worker’s compensation coverage. Your nanny’s spouse, children, or other family members could initiate a lawsuit for loss of his/her services if your nanny is injured on the job. Employer’s liability coverage is provided under workers’ compensation coverage, but lawsuits of this nature can easily exceed the limits.

    One final concern would be from another parent’s child being injured while under the care of a nanny at your home. Even if the parent was involved in the vetting and hiring process of the shared nanny, you could still be sued by them for the child’s injury. If you share a nanny with another family, then you’ll want to ensure that your personal umbrella limits are high enough to adequately protect your assets.

    If you want to avoid all the liabilities and insurance concerns, but still have the benefit of a personal nanny, then you might consider using an agency nanny. When you hire a nanny through a service or agency, the nanny is their employee, not yours. This puts the responsibility of payroll taxes, insurance coverage, background and reference checks, and so forth on their shoulders, not yours. Some agencies will even have added perks, such as having an equally qualified nanny on standby for times when your regular nanny isn’t available. Considering that you can avoid the countless hours interviewing nannies, potential liability risks, and the need for various costly insurance policies, the additional fees associated with a nanny service may be well worth it to you in the long run.

    What Factors Influence Malpractice Premiums?

    According to a November 2005 article published in the Insurance Journal entitled, “How to Write the Diverse Business of Lawyers Professional Liability,” between $1.5 and $2 billion is spent annually on Professional Liability coverage. With numbers such as these, it is important that any firm in the market for this insurance understand the factors affecting coverage rates.

    Determining premium rates is a complex matter based on a combination of factors. However, there are two main factors insurers review when underwriting an insurance application. The first is your geographic location, because each state has a different risk assumption.  The level of risk is measured by the number of suits brought against other lawyers in your area. The second important factor is your practice area(s). You can expect to pay more for coverage if you specialize in high-risk areas such as securities, banking and/or real estate.

    Other factors that insurers consider include:

    ·                                Liability limits and deductibles selected

    ·                                Breadth of coverage desired (prior acts, extended reporting, etc.)

    ·                                Number of attorneys covered

    ·                                Personal claims history of your firm’s attorneys

    ·                                Length of time covered attorneys have been associated with your firm

    ·                                Number of malpractice prevention controls utilized by your firm

    The length of time covered attorneys have been associated with your firm is important, because insurers typically use step rates to calculate premiums for a new attorney.  Risk exposure increases during the initial years that an attorney practices as the number of potential plaintiffs increases with every new case. After a certain point, this risk flattens out.  So premium rates on a new attorney will automatically increase in set steps until the risk exposure matures.

    It is also important to realize the significance reinsurance holds in determining premiums. Insurance is a way of transferring risk. You transfer risks to an insurance carrier, and the carrier will often transfer some of that risk to another company. By reinsuring, a carrier increases its capacity to underwrite more policies.  When reinsurance rates rise, the increased cost can be transferred to you in the form of higher rates.

    Workers’ Compensation Is Necessary to Protect Businesses and Employees

    Because workers’ compensation pays for medical expenses from on-the-job accidents and work-related injuries, it protects both the employer and the employee. In fact, most states require workers’ compensation for certain employer groups. In addition, as insurance agents we strongly recommend all employers carry this coverage (regardless of the number of employees) as an obvious protection against liability.

    Yet, workers’ compensation can be costly for small- and even medium-sized businesses. Therefore, laws enacted in the late 1980s allow the use of “preferred providers” to curb medical care costs and promote a quicker return-to-work process, with increased emphasis on fraud detection and better price points among workers’ compensation insurers. Even so, the coverage and price of workers’ compensation policies still vary greatly.

    With this mind, it pays to shop around for workers’ compensation packages that fit your needs, and your budget. Also, check with your state’s labor department for its definition of an “employee” as it may include a full-time, 40-hour-per-week person, as well as someone who only works three hours a week. Obviously, such variances will affect your needs and your cost for the plan.

    Each state has its own workers’ compensation requirements, including a list of illnesses and injuries that qualify for legitimate claims. The state also mandates the level of benefits you must provide for employees. These rules will typically address the amount of coverage required for each employee and the percentage of the employee’s salary that you must pay. A good idea is to review this list and keep it accessible for future reference for you and your employees. These initiatives will prevent the filing of uncovered claims and serve to minimize misunderstandings.

    Workers’ compensation policies may pay medical benefits, disability income benefits, rehabilitation benefits, and death benefits. These policies may also utilize a managed care program that sends injured or ill employees to a doctor in your insurance company’s network, further protecting the employer while minimizing costly confusion.

    As with all insurance plans, too much workers’ compensation coverage is certainly better than too little. In addition, many workers’ compensation insurance policies provide liability insurance to cover you and your business in the event the family of an employee who is killed in the workplace sues an employer. This option should also be closely examined when striving for maximum coverage.

    Why You Should Require Liability Insurance for Those You do Business With

    Are the people you do business with insured? You may want to ask them.

    If a vendor, contractor, cleaning crew, gardener/arborist, or other service provider does not have insurance, you may be out of luck if they cause property damage or injury. Also, people who do not carry insurance are probably less likely responsible than those who are insured. They may not be the ideal people you would want to hire. It’s worth paying a little more to get someone who is insured.

    Never just take the word of a vendor. Many who are not insured may say “yes” because it’s likely they don’t want to embarrass themselves. Instead, ask them to have their broker send a certificate of insurance. By having their broker send (fax or email) it to you, you know the policy has been paid for and has not been cancelled.

    Some vendors, especially small firms, will try to convince you that they do not need insurance. Do not fall into this trap as you will be letting an amateur convince you to purchase product or service that lacks the protections an insurance policy provides. As a courtesy to existing clients, we can give you advice on any insurance certificate that is emailed or faxed to us.

     

    Suggestions on who you should request insurance certificates from:

    • Contractors who are working on a home or commercial remodel
    • Repair or installation service for your auto, home, or business
    • Service contractors, such as gardening and maids/cleaning services
    • Independent Contractors or Contract Employment
    • Professional Services, such as such as a CPA, Consultant, Mortgage Broker, Staffing Firm, Insurance Broker, Architects/Engineers, and others who provide professional services (professional liability)
    • People who rent or lease from you

     

    Types of Insurance you should request:

    • General Liability
    • Workers Compensation – for operations that have workers on your premise
    • Commercial Auto Coverage – for those who use vehicles on the job
    • Professional Liability (Errors & Omissions Insurance) – for those who provide professional services

     

    Should you request a certificate for every purchase? It’s your call, but if someone is entering your premise or you are purchasing a bigger ticket item, you should strongly consider asking for insurance documentation.

    Understanding Directors and Officers (D&O) Liability Insurance

    Directors and Officers Liability insurance, or D&O, covers corporate activities. Because a corporation is legally a person, as are the directors and officers who direct it, D&O serves to protect each from liability associated with various actions and inactions.

    But what happens when corporate interests differ from those of these individuals? In short, the coverage is not the same. An indemnity policy protects the corporation, while a D&O policy covers the individual acts of directors and officers. The two types of policies can work hand-in-hand to provide complementary coverage. They can also work apart.

    D&O policies do not cover criminal acts and are primarily for civil remedies, mainly damages. First and foremost, D&O policies represent the interests of the shareholders, as a group, and other corporate constituencies in directing the business and affairs of the corporation within the law.

    D&O policies offer individual directors and officers the protection they need from personal liability and financial loss stemming from wrongful acts committed while acting as a corporate officer or director. Most policies also cover the liability of the corporate entity itself when the liability is from a claim involving the company’s purchase or sale of securities.

    Keep in mind, all companies – those that employ one or more individuals, work with customers, clients, or even competitors – are at risk. Any perceived violation leaves both the directors and officers of the company, as well as the corporate entity itself, at risk for lawsuit and in need of applicable coverage to adequately protect the business as well as the directors and officers involved.

    Employment Practices Liability (EPL) can provide additional coverage, acting like an excess policy in an employment situation, and can also involve claims by and against management. Enhanced coverage on a standard D&O may cover EPL, but should be verified with your insurance agent.  Actions including wrongful termination or demotion, breach of contract or agreement, negligent evaluation of an employee’s performance, refusal to hire or promote someone, workplace harassment, failure to follow the company’s personnel manual and more, can fall under EPL.

    Insurance experts advise protecting yourself and your business with indemnity or D&O coverage and suggest you understand exactly what your policy covers. Remember, if your D&O policy does not cover EPL, you should consider purchasing EPL coverage, or have it written into your D&O policy.

    Does a Homeowners Policy Cover Your Home-Based Business?

    With both technology and the internet, more and more people are running home-based businesses, either full-time or part-time. But will a homeowner’s policy cover the risks of a home-based business? In nearly every case, the answer is no. The only exception to this might be if a homeowner’s policy has a special endorsement, such as an endorsement to run a day care operation from your home. Yet fewer and fewer companies offer such endorsements. Additionally, some policies may give a very limited amount of coverage for business property, such as a computer. The bottom line is, nearly all homeowners policies clearly exclude business operations and not having a proper coverage in place can leave you with uninsured exposure. This is why you need separate business insurance to cover your home-based business risks.

    Home-based business owners may feel that they do not need coverage because nobody steps foot on their premises. The problem is that liability claims often happen away from the business premises. This can include a number of scenarios, including someone taking action for information on your website or someone getting injured from the product or service you provide. Most business policies include coverage for personal injury lawsuits, which means someone takes legal action against you for things like libel or slander. Competitors and customers both can sue a business owner for personal injury. A business policy also covers off-premises injury, such as if someone trips on, slips on, or is injured by any kind of property you take out in the field. It will also cover you during trade shows and usually meets the insurance requirements that some trade shows may require.

    From a property standpoint, any business property you may have in your home is usually excluded or has very limited coverage under a homeowners policy. Getting coverage to protect your computers, equipment, furniture, inventory and any other physical assets helps keep your business in operation with minimal disruption and financial loss. A business policy also usually covers loss of income, which is payment for income you did not earn as a result of a loss covered under your policy. Policies may also include coverage for things like valuable papers, damage to property of others, property coverage off-premises and a number of other additional coverages.

    A business owner’s policy includes the coverage described above, and is specifically designed to protect the unique interests and property of a business owner. This package policy includes nearly all, if not most, of the coverage you need. However, if you are providing some kind of professional advice, consulting, or other non-tangible professional services, you may also need a professional liability policy. This is also known as Errors & Omissions Insurance. In addition, if you have any employees, you are probably required by law to get Worker’s Compensation insurance. Depending on the type and size of business you own, you may have further insurance needs.

    Hoping that your homeowner’s policy is going to cover you in the event of a claim will leave you frustrated if your business experiences a loss. Businesses have a much higher risk than a homeowners policy allows for, and homeowners claims adjusters will quickly deny coverage for business-related claims in the event of a loss. Talk to your insurance agent today to explore your business insurance needs and options. 

    Liability Insurance: Hired and Non-Owned Auto Policies Provide Necessary Coverage

    Non-owned auto coverage and hired auto coverage both provide coverage for you and your business in the event an employee is involved in an accident while working on your clock. But the similarities stop here. These different policies offer very different types of coverage, and it is important to understand each to ensure you find the policy that is right for you.
    On one hand, non-owned auto coverage protects your company if sued as a result of an auto accident that you or one of your employees has in a personal vehicle while on company business. On the other hand, hired auto coverage provides your business with liability insurance for vehicles that you rent on a short-term basis for business purposes. 
    These coverage options should be considered if your company rents cars or vans for business purposes (including travel to conferences, visiting clients, etc.) or if employees use their personal vehicles to run company errands.
    Hired auto liability will pay for damages to a third party if you or one of your employees causes an accident or injury to someone while driving a rented vehicle for business purposes. For instance, if you rent a vehicle to drive employees to a conference or to visit a client and cause an accident during the trip, the person you hit will undoubtedly look to your company to pay for damages. Without this coverage, your company will have no insurance for the rented vehicle.
    The same applies if you have an employee run an errand or visit a client in his or her personal car. If the employee causes an accident, the injured party will look to your company to pay damages since the employee was using the car on company business.
    Both of these coverages are usually added to a general liability policy. When there are no vehicles titled in the company name, this additional coverage will serve to meet the contract requirement for commercial auto coverage in most states.
    Hired auto coverage replaces or augments the liability coverage offered by auto rental agencies. However, the vehicle must be rented in the company’s name. This does not replace the physical damage coverage that applies to damage caused to the vehicle rented by your company.
    Non-owned auto coverage protects your company in the event it is sued as a result of an employee accident, but it will not protect you or your employee personally. Only your personal auto insurance policy can do that.

    Non-owned auto coverage and hired auto coverage both provide coverage for you and your business in the event an employee is involved in an accident while working on your clock. But the similarities stop here. These different policies offer very different types of coverage, and it is important to understand each to ensure you find the policy that is right for you.On one hand, non-owned auto coverage protects your company if sued as a result of an auto accident that you or one of your employees has in a personal vehicle while on company business. On the other hand, hired auto coverage provides your business with liability insurance for vehicles that you rent on a short-term basis for business purposes. These coverage options should be considered if your company rents cars or vans for business purposes (including travel to conferences, visiting clients, etc.) or if employees use their personal vehicles to run company errands.Hired auto liability will pay for damages to a third party if you or one of your employees causes an accident or injury to someone while driving a rented vehicle for business purposes. For instance, if you rent a vehicle to drive employees to a conference or to visit a client and cause an accident during the trip, the person you hit will undoubtedly look to your company to pay for damages. Without this coverage, your company will have no insurance for the rented vehicle.The same applies if you have an employee run an errand or visit a client in his or her personal car. If the employee causes an accident, the injured party will look to your company to pay damages since the employee was using the car on company business.Both of these coverages are usually added to a general liability policy. When there are no vehicles titled in the company name, this additional coverage will serve to meet the contract requirement for commercial auto coverage in most states.Hired auto coverage replaces or augments the liability coverage offered by auto rental agencies. However, the vehicle must be rented in the company’s name. This does not replace the physical damage coverage that applies to damage caused to the vehicle rented by your company.Non-owned auto coverage protects your company in the event it is sued as a result of an employee accident, but it will not protect you or your employee personally. Only your personal auto insurance policy can do that.

    The ABCs of E&O Coverage

    GL, PL, PI, BI, PD, K & R, EPLI, you name it.  The world of insurance can be a complicated maze of initials and acronyms, which are often seemingly used to confuse the insurance buyer.  Among the hodge-podge of acronyms, nicknames and “short-fors” are E & O and D & O which, when used together, have comfortably sunk into the industry lexicon as meaning anything and everything professional.

    Errors and Omissions insurance (E&O) and Directors and Officers Liability Insurance (D&O) have certainly undergone change over the years.  D & O once referred to a distinct monoline (single coverage) product that protected the directors and officers of a corporation, usually publicly traded, against claims of malfeasance in protecting the interests of shareholders of the corporation.  In other words, directors and officers of the corporation are expected to use reasonable care in making decisions on behalf of the corporation, providing shareholders with maximum value.  Failure to disclose information to the public is a common allegation against directors and officers of public corporations.  Just think Enron.

    Nowadays, D&O insurance is purchased by public and private corporations, and the menu of coverages available to corporations on a bundled basis is staggering.  Along with the D & O insurance you can often find Kidnap & Ransom (K & R) insurance, EPLI (Employment Practices Liability Insurance), and a host of others.

    Often, E & O insurance can be purchased on the same bill as the D & O if the company provides a service that makes it eligible for E & O insurance, but typically, E & O is highly specialized and is purchased separately on a monoline basis.  That begs the question:  What is E & O?

    Errors & Omissions, often referred to as Professional Liability Insurance or formerly called Malpractice Insurance, can cover professional and service providers across a broad spectrum of industries.  We’re all familiar with the trials and tribulations that doctors are facing today in the Medical Malpractice arena (or Med Mal if you prefer the “short for”).  Other professionals that carry this type of coverage include accountants, architects, engineers, and lawyers.  These classes are among the more traditional, but anyone who relies on specialized knowledge to provide a service is at risk of a lawsuit for which E & O coverage is available and essential in the litigious world we live in today.   Coverage is highly recommended for real estate agents, mortgage brokers, barbers and beauticians, morticians, travel agents, teachers, fitness trainers, printers, temporary staffing firms and recruiters.   Just about any kind of consultant, from computer to marketing to management consultants, and so on, needs the security of this coverage.  In fact, consultants are often required to carry the coverage by contract if their clients are midsize or large corporations.  This requirement provides one for companies to manage their risk.

    Many people are under the impression that their General Liability Insurance, or in the case of a home-based business, Homeowners Insurance, will provide all the necessary coverage.  Not so.  These plans are appropriately designed to cover perils like bodily injury, i.e., a slip and fall in your office or on your property, but they are rarely capable of handling the kinds of exposure that E  & O covers, namely financial loss.  For example, if you are a real estate agent and you are accused of misrepresenting a property you have shown to your client, resulting in a bad decision with respect to the purchase or in some cases sale of a residential or commercial property, you can almost count on being sued.  Since the allegations have to do with the provision of expertise and the loss is a financial one, don’t expect it to be covered under the General Liability policy you purchase unless there is a specific rider.  Some insurance companies will include E & O coverage for a handful of classes such as printers or barbers/beauticians on a standard General Liability policy, but these are usually exceptions rather than the rule.

    So if you feel that you may have an E & O or D & O exposure that is not currently covered, call your insurance agent today! That’s PDQ (pretty darn quickly)!

    Use Technology to Make a Home Inventory

    We purchase insurance to protect us from what might happen. Hopefully we go through life, never having to make a claim against our homeowner’s or auto insurance policies. We know that the monthly or annual fee is in our best interest, even as we hope to never need its services. Taking home inventory should be just as important. This worthwhile task is yet another method of protecting ourselves against something that may never happen, but could. Yet few people place as much importance on taking home inventory as they do on increasing their homeowner’s policy coverage. While most insurance agents inform their clients about the significance of taking home inventory, it is rarely performed. Homeowners may put the task on their to-do lists, but as time goes by, and their busy lives take priority, it simply never gets accomplished. The result can be a very expensive one indeed.

    So now that I realize the significance of taking home inventory, how do I get started? At first glance, it seems pretty simple. Go through your home, room by room, taking pictures of your personal belongings and documenting their approximate value. No problem, right? The problem lies in Step 2: Storing your photographs and data. Unfortunately, for many people, Step 2 involves placing their beautifully detailed data in a storage box under their bed, or in filing cabinets in their home office. The files are safe and sound, until the house burns down, is burglarized, or gets filled with murky flood waters…rendering the information completely useless. This common occurrence is as ironic as it is sad. But in today’s technological world, it should never happen.

    Now that you understand how technology can make taking home inventory as secure as it is easy, your next step is to find the best web site or software for your unique needs. Secure servers allow you to document all of your belongings and access them with ease, and they eliminate the need for a physical location in which to store them.

    Important factors to consider when deciding on the most suitable home inventory site:

    While many options boil down to personal choice, the options below are helpful regardless of your unique situation.

    *Make sure your site or software allows you to quickly and easily select information about the products in your home.

    *It is very helpful if the system is pre-populated with items, based on room and category. For example, Bedroom: Bed, Dresser, Night Stand, Lamp, etc.

    *You may want to look at the total amount of inventory you have by room, or you may want to see items by category, or it’s possible you prefer a complete list of everything within your home. Look for functionality that allows all of these searches.

    *And absolutely be certain that there is secure data storage within the web site or software. This cannot be stressed enough.

    Below are some home inventory web sites to assist you in the process. I have listed them in no particular order, and included a short review of each.

    https://www.knowyourstuff.org/iii/login.html

    This site provides free, secure online storage in an easy to use format. The system is very user friendly, not overly complicated. There is a guided tour to help you navigate the system, and a video tutorial if you are someone who learns by watching. The only thing I didn’t love about this site is that you have to actually sign up to get most of the information. There is a FAQ page, but it wasn’t as easy to find as on some of the other sites.

    https://www.whatyouown.org

    This site appears a bit “fancier” at first glance, but when you begin reading, it becomes apparent that it’s just as user friendly. In fact, I much prefer the FAQ page, which allows you to get a lot of information without first having to sign up. However, there is no video tutorial. This site is also free.

    https://www.stuffsafe.com/index.php

    This site is very user friendly and provides a lot of information prior to signing up. It is also free. As with the other sites, Stuff Safe allows you to print and download reports quickly and easily. The FAQ page on this site is also easy to find and navigate. However, as with the What You Own site, Stuff Safe does not have a video tutorial.

    In addition to helping in the event of a theft or disaster, a home inventory also helps you determine the appropriate amount of insurance protection. Even better, it can help you settle insurance claims faster. The actual task of performing a home inventory is quite simple. Basically, you should start with the most significant items (fine jewelry, electronics, furniture and family heirlooms, among others), and add the less expensive items, such as clothing, at the end. For every item you list, take a photograph, give a description of the item, list the date of purchase, approximate replacement value, and any other relevant information (such as serial number, make, or model). Upload this information to the home inventory software of your choice, and voila! You can rest assured that in the event of theft or disaster, you’ll be many steps ahead of the game when it comes to recovering your losses and getting your life back on track. 

    E-conomy, E-mail, E-coverage?

    As companies expand the use of the Internet as an everyday business tool, they open themselves up to additional risks, including online copyright infringements, computer viruses, Web site business interruptions, and more. These problems leave companies open for potentially devastating financial setbacks.

    Consequently, insurance companies are now offering policies that provide coverage for many Internet-related exposures. Intended to meet the needs of companies that have some Internet exposures (not dot-coms), the policies are expected to be available in more than 30 states this year. Most cover the following risks:

    · Internet-related and advertising injury coverage protection for liabilities arising out of a computer network, including the Internet

    · Worldwide coverage extending to the entire Web site, and including Web site advertising for others via banner ads and links

    · Electronic vandalism for data damaged by hackers or viruses

    · Virus damage and Web site vandalism that cover data and equipment damaged by viruses

    · Coverage for business income and extra expense losses due to the alteration of a policyholder’s Web site

    · Coverage for loss of income or extra expenses incurred because of an interruption in Internet service, Web hosting, or e-mail access

    · Good faith advertising expense that covers advertising costs incurred to regain customer faith after a covered loss

    Industry experts predict coverage for Internet-related exposures will be nationwide by the end of the year, but they caution policy buyers to ask questions and make sure they understand the policy before purchasing it. As with all insurance purchases, it is best to discuss coverage needs in detail with an insurance agent.

    The Importance of an Annual Insurance Review

    Most people know the importance of insurance protection. You don’t want to be without it when problems strike. What many don’t realize, however, is that protecting themselves with insurance isn’t a once and done event. You don’t wear the same pants you did when you were five years old because, besides no longer being in style, they simply don’t fit. A homeowner’s policy purchased when your house was furnished with bean bag chairs and bar stools is no longer going to “fit” once you’re lounging on Italian leather sofas while watching television on your wall mounted plasma screen. Life is constantly changing, and your insurance policies should reflect that.

    Does this mean that I have to immediately call my insurance agent every time I buy a new piece of furniture or my cousin Gwen moves in for 6 months? Not necessarily. While more significant changes should be reported immediately (such as getting married or getting a new car), items such as improving your home entertainment system or upgrading your car’s tape deck to an mp3 player, can be reported at your annual insurance review. Agents reach out to their clients because they want to make sure to check up on these changes and make help avoid any gaps in their clients insurances, however it’s equally important to for a policyholder to reach out to their agent to make sure they are covered. Schedule your own annual review, and call your agent as you get your annual renewal. If one agent handles all of your coverage, this task is relatively easy. Jot down any changes that have occurred over the last year, even if you’re not sure whether they are significant enough to mention. Doing so will ensure that all of your insurance policies are best suited to your current life situation.

    Some examples of changes that should be mentioned to your agent immediately are listed below. Ask yourself these questions every year:

    *Have I gotten married or divorced?

    *Have I had a new baby, or adopted a child?

    *Is anyone in my house a new driver?

    *Is anyone living with me who wasn’t before? Will they ever be driving any of my vehicles?

    *Do I have a personal umbrella policy? Do I need one?

    *Have I purchased any new properties?

    *Have I started a home business?

    *Have I purchased new furniture, electronics, or fine jewelry?

    These are just a few examples of life changes that are often picked up during an annual review. However, they are far from the only changes that can affect your coverage, so be thorough when documenting and reporting items to your agent.

    Some of the above examples might seem pretty obvious. Most people know that if their teen-ager gets his license, they need to notify their auto insurance carrier. However, not everything is as obvious. For example, take a couple who just had their first child. They decide that it’s time to purchase life insurance to provide for the child if something ever happens to them. This couple is doing the responsible thing. They understand the importance of buying life insurance when starting a family. That significant step in planning for the future is taught to the general public quite effectively, in the form of commercials, television shows, radio spots, and the like. But what about five years later when little Ellie is born? Having child number 2 doesn’t necessarily flip on the proverbial switch like the first time, shining that bright light on the right decision. Television shows don’t show “made for t.v.” couples updating their life insurance policies for child number 2. Advertisements don’t highlight the importance of adding new children as beneficiaries. All anyone ever hears about through popular culture is the importance of getting life insurance if you don’t have it, especially if you are starting a family. If the Henderson family gets a life insurance policy when their first little one is born, and 4 children later, mom and dad are hit by a logging truck on a trip to Alaska, only #1 gets the money. Unfortunately, #1 also happens to be 18 by that time, and decides to run to Vegas with his new fortune. This particular tale might seem slightly “tall,” but beneficiary issues create havoc, legal battles, and misdirected money on a daily basis. Sometimes it’s to the tune of thousands, other times it’s to the tune of millions. Protect yourself, your family, and your personal belongings by making sure that each of your insurance policies gets an annual check-up. You’ll rest much better once you do. 

    Umbrella Coverage: Protect Your Exposed Assets

    There’s no doubt that we live in a litigious society.  Jury awards continue to bankrupt individuals and many small companies.  Some trial lawyers constantly search for deep pockets, and reach far and wide for defendants.  Underwriters continue to be amazed to find seemingly unconnected insureds “invited to the dance.”

    The most common protection for a business, or for an individual of means, to use against a crippling judgment, is an umbrella policy.  Umbrellas provide high limits of liability, usually with a small ($10,000 is typical-and this is sometimes waived) self-insured retention, above those offered by primary Commercial General Liability and Auto Liability policies.  Umbrellas may also provide coverage for certain losses not covered by primary policies.  Professional exposures such as Directors and Officers Liability or Errors and Omissions coverage, are excluded from “conventional” umbrella policies.  High limits for those risks are available from specialty markets.

    How do you know how much umbrella coverage is enough?  While the question is best answered by information you’ll collect from your accountant, attorney and insurance agent, many company underwriters recommend buying limits of two to two-and-a-half times the value of your exposed assets.  Exposed assets are those that would not be exempt from liens or judgments, and a list of specific items may well be different for every insured.  For example, the deed to a wealthy individual’s primary residence might be in a foundation, blind trust or some other instrument that’s out of reach, but the vacation home, boat, stock portfolio, etc., might be exposed.

    If that individual’s liquid net worth is $2,000,000, a $4M to $5M umbrella might be adequate.  There is some science, and some art, to making a decision on limits.  If you or your client is “luminous,” you might consider the exaggeration that will likely occur should you or that client be found at the defendant’s table.  A few years ago, a very successful professional tennis player, at the zenith of a stellar career, carried $50M in umbrella limits.  The player, unmarried and with no dependants to support, had five homes, nine cars, and significant other assets.  That player attracted a lot of notoriety off the court as well, and while celebrities are often the targets of frivolous lawsuits, our tort system can find that the same injury to an innocent party is worth more if it was caused by an individual of means.

    A business, especially one with stockholders, has to answer the “adequate” question from an entirely different perspective.  Not only do physical properties, product inventories, valuable research, good will, cash, bonds, etc., have to be fully protected, the company’s value to stockholders must also be covered by adequate liability limits.  A stock certificate is owners’ equity, and a successful class action suit or an uninsured product recall campaign, could prove catastrophic to its value.  Imagine the aggregate costs if, say, a bug in a Microsoft product fried the motherboard in all those millions of computers that run its software.  Imagine the cost if, say, a hole in the AOL gateway gave someone with malicious intent a free ride through all the data on the PCs of their some 30,000,000 subscribers.  And high tech isn’t the only vulnerable industry-what if Dial soap suddenly made all our hair fall out?  Or what if Minute Maid (owned by Coca Cola) Orange Juice made us break out in hives?  The immediate and consequential dollar losses stagger the imagination.

    Finally, the right number for an umbrella or excess limit is one you, your accountant, attorney and insurance agent and carrier(s) are comfortable with.  Remember that in some cases, plaintiff’s counsel has the right to know how much insurance coverage there is to pay a given claim.  Don’t buy so much that you make yourself a target.  Get the best advice you can, and buy limits that make sense and that you can afford.