Background: Approve the Insurance Claims Handling Protocol as outlined in Appendix A, B and C of Report F-53-11

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1 Page 1 of Report F Finance Department TO: Budget and Corporate Services Committee SUBJECT: Insurance Claims Handling Protocol Update Report Number: F File Number(s): Report Date: November 29, 2011 Ward(s) All x Date to Committee: December 13, 2011 Date to Council: December 19, 2011 Recommendation: Approve the Insurance Claims Handling Protocol as outlined in Appendix A, B and C of Report F Approve the customer service enhancement options as outlined in this report as: Option A: On-Line Claim Submission Form and; Option B: Claims Management Software Application. X Address goal, action or initiative in strategic plan Establish new or revised policy or service standard Respond to legislation Respond to staff direction Address other area of responsibility Reference to Strategic Plan: Background: Excellence in government In April 2007, Council approved Finance report F Insurance Claims Handling Protocol. The purpose of the report was to provide and assist members of Council and senior staff with a better understanding of the various roles and responsibilities of internal staff and external service providers as it relates to the administration and handling of insurance claims. As there have been changes to the City s insurance program since 2007, it is necessary to update the Insurance Claims Handling Protocol, hereafter, the Protocol.

2 Page 2 of Report F Discussion: Further, the City of Burlington s Strategic Plan identifies customer service as a strategic priority. Updating the Protocol will provide staff with the opportunity to realign service levels as it relates to liability claims for property damage which fall within 50% of the insurance policy deductible. Claims Handling Protocol (Appendix A) Although there are many varying definitions of risk management, for the purpose of this report, risk management is defined as the process of making and implementing decisions that will minimize the adverse effects of accidental and business losses on an organization. Making these decisions involves a five step process which includes identifying and analyzing loss exposures, examining alternative risk management techniques, selecting the most effective technique, implementing the technique and monitoring the results. The assessment of these decisions typically leads back to the first step in the risk management decision process, which is identifying and analyzing loss exposures. This process of identifying and analyzing losses and all the underlying factors that contributed to the loss can be effectively managed through the insurance claims handling process by adhering to the Protocol. The purpose of this report is to recommend the adoption of the Protocol as well as other specific options to effectively manage insurance claims; a process which will ultimately form part of the City s overall corporate insurance and risk management mandate and provide enhanced customer service. All City staff, council members, boards created pursuant to the Municipal Act, and other entities insured under the City s insurance policies are referred to as Participants in the Protocol. The Participants have certain roles and responsibilities and are required to comply with the Protocol, to ensure compliance with the terms and conditions of the various insurance policies. Participants to the Protocol include: The Corporation of the City of Burlington, hereafter the City; The Burlington Public Library Board, hereafter the Library; The Burlington Economic Development Corporation, hereafter the BEDC; The Burlington Downtown Board of Management, hereafter the BDBM; The Aldershot Business Community Improvement Area, hereafter Aldershot; and Committees of Council

3 Page 3 of Report F Types of Claims Applicable to the Protocol For the most part, there are essentially three types of claims that the City receives; liability, automobile and property losses. From the time the City placed the insurance program with the Frank Cowan Company (2007), the City has received the following claim types and number of claims as set out in the table below: Claim Type/ Policy Liability Automobile Property Total # of claims per year Nature of Loss to October 24 Non-repair of roadway Tree Sidewalk Construction Sewer backup Flooding Other Building Inspections Physical Damage to City owned and leased vehicles Third party bodily Injury resulting from City owned and leased vehicles Loss of damage to City owned buildings and contents Liability Claims For the most part, the claims that the City receives suggest that the City was negligent, resulting in damage to the claimant s property and/or injury to the claimant. Such claims include slip/trip and falls on municipal sidewalks, non-repair of the roadway and damage caused by non-repair of trees that are situated within the City s road allowance.

4 Page 4 of Report F Liability refers to responsibility assessed against a person or corporation for injury or damage to a third party. Generally speaking, most liability insurance policies agree to pay on behalf of the insured for liability imposed by law or for which the insured may become legally obligated to pay. Liability may be imposed as a result of the insured's negligence, nuisance or breach of contract. The most common way the law imposes liability is where there has been a finding by the courts that the insured has committed a tort or wrongful act, negligently causing damage or injury to another. When the claimant is successful, the courts will undoubtedly find in favour of the claimant. With that said however, in the event the claimant does not satisfy the court that the insured, or in the context of the Protocol, the City, or the Participant, was negligent, the court will find in favour of the City and occasionally order that the claimant pay the City s legal costs. It is this process that the claimant must pursue in the event the claimant alleges wrongdoing on the City s part and the claim is denied by the City s independent adjuster. Obligations of the City under the insurance policies For all liability claims, notice of claim is to be immediately forwarded to the insurer or any of its authorized agents by the City s insurance staff. Pursuant to the conditions of the various insurance policies, the insurer has the right to make such investigation, negotiate and settle any claim or suit as may be deemed expedient by the insurer. The Participant and their respective staff shall co-operate with the insurer and upon the insurer s request, aid in securing information and evidence, attend hearings and trials and assist in effecting settlement. The Participant and their respective staff shall not voluntarily assume any liability or settle any claim. This claims process model is set out in Appendix C. With that said however, for liability claims where the damage is assessed at less than 50% of the insurance policy deductible, the City s Insurance staff may assume carriage of the claim, appoint an independent adjuster and if pursued through the courts, may appoint in-house counsel to represent the City s interest in the claim. This claims process model is set out in Appendix B. Claims Less than 50% of Deductible Process Model (Appendix B) Generally speaking, the claims process model as set out in Appendix B represents those situations when the claimant is self represented, suffers property damage and seeks compensation directly from the Participant. Claimants that approach the City may do so for a variety of reasons, that being: They elected not to present a claim to their own insurer;

5 Page 5 of Report F They are seeking reimbursement of their deductible under their own insurance policy; Their insurer has denied coverage; and/or They are uninsured or underinsured to respond to their loss. In the event the City s independent adjuster denies the claim, the claimant can consider the following options: Accept the City s adjuster s denial letter; Seek legal advice and retain legal counsel to represent them in Small Claims Court or represent themselves or; Challenge the adjuster s position. If the claimant proceeds to challenge the adjuster s position, the Insurance staff will review the file in consultation with legal staff. Should both parties agree with the adjuster s position, the claimant will be advised accordingly. Should staff disagree, the City will instruct the adjuster to settle with the claimant. Timelines In keeping with achieving excellence in customer service as a goal under Excellence in Government within the Strategic Plan, the claims process model as set out in Appendix B was adapted to ensure the claimant was kept appraised of significant developments throughout the investigation of their claim on or about Day 3, Day 6, Day 13, Day 20, Day 35 and ultimately on or about Day 45. With that said however, staff expressed a concern that these timelines are not achievable unless Options A and B are adopted and implemented. In the event the options are not approved, staff requests some flexibility with respect to meeting the timelines noted in Appendix B. As a comparator, staff undertook to survey other neighbouring municipality s claims processes. Of the municipalities surveyed below, it would appear that, on average, a claim is not acknowledged by the municipality or its agent until approximately 10 days after notice of the claim to the municipality. Further, that the average number of days to complete an investigation is approximately 53 days. Municipality Confirmation of receipt of Claim Investigation Complete Toronto 5 days if submitted by 14 days if submitted mail or fax within 90 days Mississauga 14 days within 28 days

6 Page 6 of Report F Haldimand ASAP ASAP County Windsor 10 days within 42 days Burlington 3 days 20 days or 45 days* * Refer to Appendix B Automobile Claims Claims resulting in damage to City owned and/or leased vehicles is covered under the automobile policy which indemnifies the City against direct and accidental loss or damage to an automobile and its attached equipment. Liability protection is also covered under the automobile policy. The policy is designed to provide financial protection for the City s legal liability resulting in bodily injury to other people and for damage to the property of others. The City s Insurance staff has an internal process map to deal with such claims arising out of the use and operation of the vehicles owned and/or leased by the City. Property Claims Participants to the property policy are afforded insurance protection to respond to accidental loss or damage to buildings, contents, equipment, stock, supplies, etc., that are owned, leased, or under the care, custody and control of the Participant. The City s Insurance staff have an internal process map to handle such claims. Roles and Responsibilities of the city s Insurance staff and outside service providers in accordance with the Protocol Internal (City) Insurance Staff Finance Department The management of claims comes under the direct responsibility of the Executive Director of Finance. Supervision and oversight is provided by the Controller and Manager of Financial Services with direct responsibility provided by the Insurance and Risk Management Officer assisted by the Administrative Assistant. In accordance with the proposed Protocol and in order to provide each respective party with insight on the claims handling process, all information and communications concerning incidents, occurrences and claims must be channelled through the City s Insurance staff. Without centralizing this function, a claimant could potentially experience inconsistent handling of their claim and/or the defence of the claim could be compromised. Centralizing this function provides for the basis of detailing the City s losses. From the loss data, risk management staff, brokers, and insurers can develop information on the frequency, severity, and root cause of losses which in turn, can be used to project reasonable reserves for current and future losses. It is this loss history that provides the

7 Page 7 of Report F much needed foundation to forecast future trends, identify problematic areas, and implement cost-effective risk control techniques that can assist the City in managing and controlling losses in terms of loss frequency and severity and ultimately, mitigating risk. The Insurance and Risk Management Officer The Insurance and Risk Management Officer s primary role is to be responsible for the insurance and risk management program and to guide staff in setting risk management policy. Other responsibilities include: Plan, organize, lead and control the resources of the risk and insurance program; Place and negotiate the insurance program, including exploring alternative risk financing options; Evaluate and make recommendations with respect to insurance coverage, including adequacy of limits, coverage and deductibles/self insurance retention levels; Promote risk management to the Participants of the program; Prepare reports for Senior Management and Council; Budget and apportion the costs of the risk management program equitably amongst the Participant s and departments to reflect differences in loss exposure; Budget for annual insurance provisions to ensure adequate insurance reserves have been established; Review contracts and agreements and provide insurance advice to the various Participants Oversee the administration of insurance claims; Provide instructions to outside service providers with respect to claims; Attend mediations; and Schedule and attend regular meetings with outside service providers, such as the City s broker, insurer, independent adjusters and legal counsel. The Administrative Assistant and/or designate: The Administrative Assistant is the main point of contact to address inquiries from the public as it relates to claims. The Protocol sets out the manner in which a claimant can contact the City, the information and documentation required to support their claim as well as some general information about the claims process. Responsibilities include: Administering all insurance claims through the prescribed process which includes providing instructions and direction to aspiring claimants about filing a claim, receiving the claim and subsequently, setting up a claim file; Corresponding with the claimant; Notify the adjuster;

8 Page 8 of Report F Acting as a liaison among the various parties involved in the claim; Co-ordinating and overseeing the gathering of information and documentation from the claimant, the various departments, the adjuster, defence counsel and the insurer; Maintaining accurate and complete claims files; Updating the claims systems to ensure accurate and credible claims data, including all expenses relating thereto; and Processing service provider s invoices and requisitioning payment of same. The City s Legal Department The City s Legal Department does not directly interact with claimants, except in those circumstances when the claimant issues and serves the City with a Small Claims Court claim. Responsibilities include: Provide legal advice and guidance to the City s Insurance staff; and Represent the interest of the City in claims brought under the Small Claims Court rules. External Parties The Independent Claims Adjuster The adjuster is an independent professional who on behalf of the insurer and the City investigates, adjusts, negotiates and settles claims. Independent adjusters are subject to provincial legislative requirements and must be licensed to adjust claims. Responsibilities include: Interpret insurance policy wordings; Attend the location of a loss to conduct a scene investigation; Meet with claimants, witnesses, and the insured to obtain statements; Investigate losses to determine whether the insured or other is eligible to a claim payout; Prepare reports setting out the assessment of liability and damages of a claim; Prepare reports summarizing their findings that would either recommend to settle or deny the claim; Negotiate settlements; Obtain a final release when settlement has been made and; Attend quarterly claims meetings with the City s Insurance and Risk Management Officer.

9 Page 9 of Report F The Insurance Provider The City s Insurance Provider is selected through a Request for Proposal (RFP) process in accordance with the City s Procurement By-Law. The City s recent RFP process in 2010 awarded the contract to Frank Cowan Company for a three year period with the possibility of two one year extensions. Responsibilities include: Issue insurance policy wordings; Provide risk management services and advice; Monitor legislation that may impact the operations of the City; Provide contract review; Provide seminars and training to Participants of the program; Provide risk inspections of municipal facilities; Direct and instruct independent adjuster and legal counsel throughout the claims process. Outside Legal Counsel The City s outside legal counsel is appointed by the insurance provider. Outside legal counsel is directed and takes instructions from the claims examiners of the insurance provider throughout the litigation process. Council Involvement in Claims When constituents suffer an injury or property damage as a result of an incident involving the City, they sometimes contact their local councillor to involve them in the process. Incidents that result in harm are unfortunate but not necessarily a result of the City s negligence. Each and every incident must be assessed on it own merits. In many circumstances an insurance recovery is wanted. In such situations, the terms and conditions of the insurance policies must be followed. The liability policy agrees to pay on behalf of the City all sums for damages that the City becomes obligated to pay by reason of liability imposed by law. The City cannot admit liability nor take any actions that can prejudice the insurer s position or defence of the claim. Prejudicing the insurer s position can result in a denial of the claim thereby requiring the City to rely on its own funds to pay damages, investigation expenses and legal fees. Council members are elected officials of the City and therefore cannot represent the claimant due to a potential conflict of interest.

10 Page 10 of Report F Strategy for Customer Service Enhancement Program Options Option A: On-Line Claim Submission Form In keeping with the e-government initiative, staff recommends that an on-line claim submission form be adopted to improve customer service as well as enhance the claims management process. Documents filed and managed electronically will reduce staff time, improve customer service, be consistent with litigation and outside service providers document management processes as well as provide for a centralized forum for all claims related documents and relevant information. For claims involving the City, an on-line claims submission form would be available on the City s external website so the public could provide notice to the City Clerk electronically. All supporting documents, if not filed in an electronic format, could be sent via mail, fax, or personally delivered in the event there are size restrictions in submitting the information. Expected results: Improve customer service response time by 3 business days and enhance customer service levels. Option B: Risk and Claims Management Software Application A risk and claims management application is a tool for better protecting an organization against the adverse effects of actual and potential accidental losses, thereby reducing the organization s overall cost of risk. The application can be a useful tool in any or all of the steps of the risk management decision process and is a necessary tool for managing risk. The application will not only assist in analyzing claims (property, casualty, automobile, etc.), but enable the City to monitor and control risk effectively. Some of the potential benefits of an application are: Increased efficiency of the risk management program by way of eliminating or reducing paperwork. A well designed application can store, categorize, analyze and efficiently extrapolate needed data, thus increasing the efficiency and the quality of risk management decisions; Improved communication through computer networking and shared databases in that information is readily accessible to the organization; and Better quality of information for risk decision making. This tool is necessary, particularly for insurance and risk management staff, as well as third party claims service providers. In addition to managing claims electronically, the application can be used to communicate claims information, provide risk and trends

11 Page 11 of Report F data to both internal operating departments as well as the City s insurance provider in an attempt to negotiate more favourable insurance renewal terms. Expected result: increased efficiencies and more timely and accurate claims and risk management information. Option C: In-house Claims Adjuster Over the past 6 years, on average, the City incurred annual adjusting expenses of approximately $24,000 for the adjustment of third party property damage claims that were assessed at less than 50% of the deductible. For the most part, these claims could be handled by an in-house adjuster, saving the Corporation approximately $24,000. In addition to adjusting claims, by having an inhouse adjuster, the City would realize other additional benefits such as: the recovery of damages to the City s property caused by other parties; to act in the capacity of a claims examiner to audit claim files; to participate in the risk management program from a claims perspective, an equally important role in the risk management process as lessons learned in claims would be brought to the forefront of the operational departments so as to implement changes to the department s policies and procedures and ultimately reduce the department s exposure to liability; the quality of investigation would be more closely scrutinized and audited; increased turn-around time and more timely investigations; succession planning; and support to other City Insurance staff. Expected results: potential saving of approximately $24,000, improved customer service response time of approximately 5 days, more control over the scope of the investigation, and more timely information provided to the claimant. Option D: Ex-Gratia Program Claims by or against the City may arise even when the City has been acting in good faith. Claims may include requests for compensation to cover property losses, expenditures, or damages sustained by the claimant. When such an incident occurs, some organizations offer compensation to claimants or what is referred to as an exgratia payment. Ex-gratia payments are made without any obligation or liability on the organization and are offered to provide compensation to individuals that suffered damages as a result of some unforeseen event.

12 Page 12 of Report F While an ex-gratia program could provide some relief to the claimant as well as reduce staff and adjuster s time in dealing with an aggrieved claimant, adopting such a program contradicts the basic fundamental principle of risk management. Financial resources are better used to address risk control and/or loss preventive measures in an attempt to mitigate the overall risk to the corporation, as opposed to providing compensation when the organization is not legally liable to do so. It is for this reason that staff do not recommend that the City adopt an ex-gratia program. A survey of other municipalities was undertaken in respect of this issue. For the select municipalities that have a program, most are upper tier municipalities and the program relates to sanitary sewer claims. Municipality Kitchener Cambridge Town of Richmond Hill City of London Kingston Town of Oakville Halton Hills City of Cambridge Waterloo Region Halton Region Peel Region Durham Region City of Greater Sudbury City of Hamilton Program Highlights Payment of up to $500 for dirty water claims due to excessive amounts of iron and magnesium in water. Payment of $500 to homeowners for flooding due to the surcharge of the sanitary sewer system Payment of up to $1500 to address damage caused by a backup of a sanitary system caused by blockages on the municipal property or easement Payment of $400 to cover clean up costs for basement flooding caused by a sanitary sewer backup. Payment of $100 to assist in clean up costs if sanitary sewer backup is on homeowner s side or $250 if sewer backup located on City s side. $1000 compassionate grant under the Residential Municipal Disaster Relief Assistance Program for basement flooding caused by severe rainstorms. Flooding due to overland flow is eligible. Supplemental Relief Program ($5000) applies to insurance coverage related to sewer backup. Flooding due to overland flow is not eligible.

13 Page 13 of Report F Should Council direct staff to further investigate an ex-gratia program, it would be staff s recommendation that the program be governed by the following criteria as set out below, taking into consideration the financial implications of implementing such a program: Property losses due to weather related events; Category of claim; Payment amount; Claimant or applicant suffered loss due to an unforeseen circumstance; Claimant or applicant has first presented a claim under their own insurance policy and the claimant or applicant is claiming for their insurance deductible and; The program would not apply in situations when the claimant s vehicle was damaged as a result of a motor vehicle accident involving a City vehicle. This is in accordance with the Insurance Act. Financial Matters: Option A: On-Line Claim Submission Form (Recommended) Implementation will involve Finance, ITS, and Communication staff time with minimal costs. Option B: Risk and Claims Management Application (Recommended) Implementation will involve Finance, ITS staff time and some consulting fee of less than $20,000. To date, staff have investigated such options as developing an application that is Amanda based as well as implementing another municipality s application that would require a minimal sub-licensing fee of approximately $5,000 to $10,000. Option C: In-house Claims Adjuster This position may be considered as part of future budgets and in accordance with the City workforce planning initiative. The cost for the new staff position is approximately $81,500 with an anticipated savings of $24,000, resulting in a net cost of $57,500 to the City.

14 Page 14 of Report F Option D: Ex gratia Program Due to uncertainty of the number of claimants or applicants, payment amounts, etc. it is difficult to quantify the financial impact to the City. Communication Matters: After Council approval, the Protocol will be posted as reference material on both the City s internal and external website for Burlington residents and staff. Conclusion: The Protocol has been updated with a commitment by the Insurance staff in the Finance department to: Efficiently and effectively manage the loss reporting and claims handling process; Provide an objective and professional level of service to all claimants; Provide a professional approach when managing the expectations of the claimants; Comply with the conditions of the City s contracts of insurance; Preserve the City s defence in the event a claim is pursued through the court; and Acts as the custodian of public funds for taxpayers. Respectfully submitted, Marjorie Rossetto Betty Wong Insurance & Risk Management Officer Controller & Manager of Financial Services Ext Ext Appendices: A. Updated Insurance Claims Handling Protocol B. Claims Process Model: Liability Property Damage Claims under 50% of Deductible C. Claims Process Model: Liability Claims over 50% of the Deductible

15 Page 15 of Report F Notifications: (after Council decision) Name Mailing or Address Approvals: *required *Department Head City Treasurer General Manager City Manager To be completed by the Clerks Department Committee Disposition & Comments 01-Approved 02-Not Approved 03-Amended 04-Referred 06-Received & Filed 07-Withdrawn Council Disposition & Comments 01-Approved 02-Not Approved 03-Amended 04-Referred 06-Received & Filed 07-Withdrawn

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