Employment Practices Liability Insurance

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1 Employment Practices Liability Insurance Claims Scenarios Type of Claim: Federal Lawsuit Cause of Action: Disability, Discrimination/Wrongful Failure to Hire Type of Insured: Marketing Firm Facts: An applicant sued a company for failure to hire based upon the hiring officer s perceiving the applicant to be disabled. Resolution: The Insurer paid $80,000 in defense costs and, on the eve of trail with the Insured s advice and consent, $35,000 in negotiated settlement in order to avoid further expense, publicity, and disruption. Type of Claim: EEOC and State Agency Charge of Discrimination Cause of Action: Gender Discrimination Type of Insured: Candy Manufacturer Facts: An employee leveled charges that the pervasive use of ostensibly neutral terminology on the assembly line floor was actually discriminatory. Resolution: The Insurer provided a defense and paid $10,000 in defense costs incurred through an administrative finding of no probable cause. Claimant failed to pursue the matter beyond that level. Type of Claim: Sate Court Lawsuit Cause of Action: Failure to Accommodate Type of Insured: Entertainment Electronics Manufacturer Facts: A released-to-duty worker sued to have a no lifting position created as an accommodation to her temporary work restriction made permanent. Resolution: A jury found that the sought accommodation was unreasonable in light of the facts and job requirements. The Insurer paid $90,000 in defense costs.

2 Type of Claim: State Court Lawsuit Third Party Liability Coverage Feature Cause of Action: Hostile Environment Type of Insured: Assisted Living Facility Facts: A volunteer associated with the facility alleged that a resident created a hostile environment through intimidation and harassment. The volunteer claimed that the facility was liable since it did nothing to curtail the intimidation and harassment when she advised the administrator. Resolution: The insurer provided a defense costing $125,000 through summary judgment rendered in favor of the Insured. Type of Claim: State Court Lawsuit Cause of Action: Wrongful Termination/Failure to Accommodate/Disability Discrimination Type of Insured: Custom Watercraft Manufacturer Facts: A former Sales & Marketing Administrator making $75,000 annually claimed that her employer terminated her rather than reach accommodation concerning surgery and recuperation for a diagnosed ailment, which the Administrator claims resulted from a work-related injury. Resolution: Settlement was achieved during a court-ordered mediation. The Insurer paid a mediated settlement amount of $50,000 to claimant and her attorneys, representing four months salary, and her fees and costs in the action. The insurer also paid $50,000 defense costs. Type of Claim: State Court Lawsuit (After Exhausting Administrative Remedies) Cause of Action: Wrongful Termination/Retaliation Type of Insured: Executive Recruiting Agency Facts: A former employee s attorney demanded $500,000 enhanced severance in addition to the former employee s annual bonus and COBRA insurance in exchange for a release of all potential claims. The former employee alleged that she was terminated from her employment in retaliation for being involved in a romantic relationship with her supervisor. The employee had been working for just over one (1) year and was making $90,000. Resolution: The Insurer provided a defense, which cost $205,000, that enabled the insured to demonstrate at bench trial that the insured had legitimate grounds for terminating the poorly performing employee and that the relationship was entirely consensual.

3 Type of Claim: State Court Lawsuit Filed but Not Served Cause of Action: Personal Injury/Wrongful Termination Type of Insured: Value Added Computer Reseller Facts: A company reported a terminated Sales Representative to the local police after finding in his desk labels allegedly bearing serial numbers of stolen equipment. Felony Theft charges were dismissed after a jury trial. The Sales Representative, who earned $185,000 in salary and commissions and had a generous benefits package, threatened to sue the company, the HR director, and his supervisors for false prosecution and for defamation, libel and slander. Resolution: The matter resolved through private negotiation before service was effected. The company reinstated the Sales Representative and paid for his relocation while expanding his territory and prospects. The Insurer paid for defense in the amount of $70,000 and $185,000 for lost wages while the felony charges were prosecuted. Type of Claim: Federal Lawsuit Cause of Action: Gender Discrimination/Hostile Environment Type of Insured: Manufacturing Plant Facts: A group of female employees alleges that management allowed the existence of a hostile work environment for women within a manufacturing plant. Resolution: The Court awarded each employee $10,000 emotional distress damages, which the Insurer paid in addition to having provided a defense of the matter to the Insured. Type of Claim: Demand Letter with Threat of Lawsuit Cause of Action: Retaliatory Discharge in Violation of Public Policy Type of Insured: Catering Goods Supplier Facts: A recently discharged employee alleged that he was terminated in retaliation for reporting misconduct of senior managers. Resolution: Defense counsel selected mutually by the policyholder and the Insurer, with defense paid by the Insurer pursuant to the Policy, negotiated a resolution through a neutral reference and extension of benefits until the employee could secure other employment or eight months, whichever came first. Type of Claim: Arbitration Demand Cause of Action: Wrongful Termination/Breach of Employment Contract Type of Insured: Bakery Facts: A recently released employee who made $97,000 annually alleged that the CEO wrongfully terminated him due to perceived disloyalty. Resolution: The matter was arbitrated pursuant to the employment agreement terms. The arbitrator found in favor of the employer. The Insurer provided a defense to the insured for the matter.

4 Type of Claim: EEOC and State Agency Charge of Discrimination Cause of Action: Sexual Harassment/Negligent Supervision Type of Insured: Travel Agency Facts: A current employee alleged sexual harassment by his manager and alleged that the company was liable vicariously for not exercising reasonable care to prevent the harassment. Resolution: At mediation, claimant accepted a transfer to another branch reporting to a different manager and $20,000. Panel counsel s negotiated fee with the Insurer kept cost to a minimum. Type of Claim: State Lawsuit Cause of Action: Class Action/Disparate Impact/Age Discrimination Type of Insured: Brewer Facts: After a downsizing, a group of former, older, long-term employees alleged that the downsizing had a disparate impact on them insofar as a greater number of younger, shorter-term workers were retained than were let go. Resolution: Plaintiffs would not consider settlement. A jury determined that the allegations were without merit based upon the evidence presented during a lengthy trial. The Insurer paid $975,000 above the deductible in defense costs through this witness-, document-, and e-discoveryintensive matter.

5 Fiduciary Insurance Claims Scenarios Type of Claim: Wrongly Calculated Disability Payments Cause of Action: Breach of ERISA Facts: More than six years after disability payments began, permanently disabled employee and his wife determined that benefits had been incorrectly calculated as based on definition of wages in prior plan that did not include bonuses or commissions. They made demand upon the disability carrier and employer for unpaid benefits, emotional distress and consequential damages including loss of a family home and increased medical bills allegedly due to smaller benefit payment. They subsequently made demand upon the benefits carrier for interest and employer for increased income taxes. Resolution: Disability insurer recalculated benefits paying excess of $80,000 as well as $10,000 for interest. Insurer (Fiduciary) paid $6,300 for legal fees incurred defending the employer. Type of Claim: Termination of Benefits: Disability carrier terminated long-term disability payments after determining that the employee was capable of employment Cause of Action: Breach of ERISA Facts: Employee sued the disability carrier as well as his employer and plan administrator for terminating his disability payments upon disability carrier s determination that the employee was capable of working in any profession. Resolution: Dismissal of Employer. $2,500 of legal fees incurred. Type of Claim: Denial of Benefits Cause of Action: Breach of ERISA Facts: Claim administrator, Health and Welfare Plan and employer sued after Claim administrator denied claim for experimental cancer treatment. Resolution: Settlement by Plan covering some benefits and Insurer paid $5,500 defense fees.

6 Type of Claim: Out of Network Expenses Plan Documents Cause of Action: Breach of Fiduciary Duty under ERISA Facts: Estate of deceased employee sued Health Plan s insurer for failing to pay $100,000 of medical expenses based upon employee choosing out of network providers. Also made demand upon employer alleging breach of fiduciary duty under ERISA claiming it failed to provide adequate summary of plan benefits. Resolution: Settlement of $20,000 paid by plan insurer. Employer incurred approximately $7,500 in defense costs. Type of Claim: Failure to Fund Retirement Plan Cause of Action: Breach of ERISA Facts: Demand upon employer to fund retirement plan match allegedly owed based upon wording in severance agreement and W2 issued on grossed up amount. Resolution: Settlement with Employer paying partial benefit. Insurer paid $2,500 of defense costs. Type of Claim: Counter-Claim after Overpayment of Retirement Benefits Cause of Action: Negligence and Breach of ERISA Facts: Employer/plan administrator mistakenly overpaid benefits to a former employee. The Plan mad demand upon the former employee to return the overpayment and then sued for return of the funds when ignored. Former employee counterclaimed against employer/plan administrator for negligence and breach of ERISA. Resolution: Former employee repaid overpayment less $3,300 in investment losses. Insurer repaid Plan for $3,300 of losses and defense costs for counterclaim of $5,000. Employer/plan administrator paid approximately $10,000 to collection attorney. Type of Claim: Audit by Department of Labor Cause of Action: Formal Investigation Order Alleging Breach of ERISA Facts: Department of Labor investigated transfers of company stock from an Employee stock Ownership Plan to a 401K Plan and determined the transfers were not authorized. Resolution: Transactions reversed and new plan statements issued. Defense costs in excess of $100,000.

7 Crime Insurance Claims Scenarios Type of Claim: Employee Theft Policy Type: Crime Cause of Action: Theft Type of Insured: Property Manager Facts: An employee of an apartment complex s managing agent accepted cash from residents for their monthly maintenance fees but did not credit that cash towards the tenants accounts. Resolution: The Insurer paid $35,000 representing the amounts accepted but not credited to the ten residents affected. Type of Claim: Policy Type: Cause of Action: Type of Insured: Facts: Resolution: Type of Claim: Policy Type: Cause of Action: Type of Insured: Facts : Resolution: Type of Claim: Policy Type: Cause of Action: Type of Insured: Facts : Resolution: Depositors Forgery or Alteration Crime Forgery Supermarket An employee forged thirty payroll checks then cashed some and deposited the remainder into her personal savings account. The Insurer paid $10,000 representing the amounts of the cashed and unrecoverable checks. Computer and Funds Transfer Fraud Crime Fraudulent Transfer Broadcasting company An employee within the accounting department made payments to her personal credit card with company funds. The Insurer paid $900 representing the amount fraudulently transferred. Employee Theft Crime Theft Manufacturer An office employee and a warehouse employee conspired to ship hundreds of pieces of inventory to fictitious customers over a six-month period. When the office employee went out on sick leave, his replacement discovered the scheme. The Insurer paid $110,000 representing the value of the inventory.

8 Type of Claim: Policy Type: Cause of Action: Type of Insured: Facts : Resolution: Outside The Premises Crime Robbery Women s apparel store The owner of a company was robbed while taking the daily receipts to his local bank. Neither the robber nor the money was ever found. The Insurer paid $10,000 representing cash stolen.

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