Best Practices to Minimize Action Over Claims

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Lee Mills
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1 Best Practices to Minimize Action Over Claims David Matthiessen Vice President, Claims Everest National Insurance Company The information presented in this material has been developed from sources believed to be reliable. It is presented for informational purposes only and should not be constructed as legal, professional or business advice. Everest National Insurance Company and its affiliates accepts no responsibility for the accuracy or completeness of this material. It makes no representations or warranties of any kind herein and disclaims all such representations and warranties. Neither Everest National Insurance Company or its affiliates will be liable for any damages alleged to be caused by the information contained herein. It recommends you consult with legal counsel and/or other professional persons before applying this material. This information is solely for illustrative purposes and does not constitute a contract. Only the relevant insurance policy can provide the actual terms, coverages, amounts, conditions and exclusions.

Everest National Insurance Company and its affiliates accepts no responsibility for the accuracy or completeness of this material.

2 What is an Action Over claim? A type of action in which an injured employee sues a third party for causing or contributing to the employees injury then, because of a contractual relationship liability is passed back to the employer. Risk Transfer Responsibility for damages stemming from tort liability is shifted from one party to another

contributing to the employees injury then, because of a contractual relationship

3 Indemnification The right to indemnification can arise pursuant to the terms of a written contract, or at common law The Risk Transfer Mechanisms Primary methods for transferring risk: Common Law Indemnification Contractual Indemnification Additional Insured Coverage

Transfer Mechanisms Primary methods for transferring risk: Common

4 Common Law An equitable remedy that ultimately shifts the entire responsibility for damages from a party that has been required to pay a claim because of some legal relationship to the party at fault Contractual Indemnification A contract under which one party (indemnitor) agrees to assume the tort liability of another (indemnitee)

relationship to the party at fault Contractual Indemnification A contract under

5 Contractual Indemnification Three basic types of indemnity agreements: 1) Indemnification only for liability arising from indemnitor s negligence 2) Indemnification for all liability except liability arising from the indemnitee s own negligence 3) Indemnification for all liability including liability arising from the indemnitee s own negligence Typical Contract Provisions Indemnification/Hold Harmless Section Insurance Procurement Section

indemnitee s own negligence 3) Indemnification for all liability including liability arising from the

6 Typical Contract Types Construction contract Service contract Property lease Franchise and Distribution agreements Equipment lease Enforceability Indemnification provisions in contracts are typically enforceable

agreements Equipment lease Enforceability

7 Exceptions Vary by State Anti indemnification statutes professional services Hazardous activities Misconduct Intentional or gross negligence Insufficient language Indemnitee s Negligence Indemnification for an indemnitee s own negligence may not be permitted by statute or case law

negligence Insufficient language Indemnitee s Negligence

8 States with statutes prohibiting indemnification for indemnitee s own negligence include: Connecticut Florida Illinois New York New Jersey Additional Insured Coverage Risk transfer pursuant to terms of an insurance policy Typically accomplished through endorsements conferring insured status upon named entities or on a blanket basis tying back to contractual requirements

pursuant to terms of an insurance policy Typically accomplished through endorsements

9 Certificates of Insurance Certificate holders are often noted to be included as additional insureds on a Certificate of Insurance Most Courts have found that an insurer s obligations are determined solely by the terms of its policy Contractual Indemnittee vs. Additional Insured Very distinct differences Vary greatly by contract or policy wording

insurer s obligations are determined solely by the terms of its policy Contractual

10 Contractual Liability Claim Employer ABC Excavation Employee Tom Misfortune Backhoe Owner XYZ Equipment Rental Tom Misfortune is operating a backhoe while working for ABC Excavation. ABC rented the backhoe from XYZ Equipment Rental. Tom rolls the backhoe and is severely injured. He makes a workers compensation claim against ABC and a liability claim against XYZ. The contract between ABC and XYZ contains an indemnification agreement but does not require additional insured coverage. Additional Insured Claim Employer ABC Excavation Employee Tom Misfortune Backhoe Owner XYZ Equipment Rental Tom Misfortune is operating a backhoe while working for ABC Excavation. ABC rented the backhoe from XYZ Equipment Rental. Tom rolls the backhoe and is severely injured. He makes a workers compensation claim against ABC and a liability claim against XYZ. By contract, XYZ is an additional insured on the general liability insurance policy for ABC. There is no indemnification agreement in the contract between ABC and XYZ.

The contract between ABC and XYZ contains an indemnification agreement but does not require additional insured coverage.

11 Contractual Liability What can you control? Indemnification/Hold Harmless Provisions: Avoid the use of broad language Specify that you will hold the customer harmless only for your liability Specify that you will not hold the customer harmless for their negligence Avoid agreements to defend/indemnify for uninsured exposures (intentional acts) Avoid agreements to indemnify for the work of sub contractors Contractual Liability What can you control? Scope of Work: Outline exact services provided and not provided Attach orders, quotes, bids, etc. Avoid vague statements

liability Specify that you will not hold the customer harmless for their negligence Avoid agreements to defend/indemnify for uninsured

12 Monetary Amount of Indemnification: Contractual Liability What can you control? Negotiate as with any other part of the agreement Limit indemnification to a specified dollar amount Limit indemnification to the amount of collectable insurance Limit indemnification to a multiple of the contract price Contractual Liability What can you control? Insurance Procurement Provision: Avoid broad language agreeing to add many parties as additional insured Specify that the insurance will only apply for your liability Specify that the insurance will not provide coverage for their negligence Be aware of Action Over exclusions

insurance Limit indemnification to a multiple of the contract price Contractual Liability What can you control?

13 Action Over Claim Cost Control Through Loss Prevention Jennifer M. Arrison Manager, Loss Control Everest National Insurance Company Cost Control Through Injury Prevention Solution Preventing WC Claims Prevents Action Over Claims An Effective Injury Prevention Program Pays Off

Cost Control Through Injury Prevention Solution Preventing WC Claims

14 Elements of An Effective Injury Prevention Program Management Leadership Hazard Analyses Hazard Prevention & Control Training and Education Workforce Participation Monitoring Results Hazard Analysis Pre site Hazard Assessment & Identification of employee risk exposures Hazard Prevention Engineering/Administrative/Personal Protection Preventative Maintenance Inspections Emergency Preparedness Medical Programs

Pre site Hazard Assessment & Identification of employee risk exposures Hazard Prevention

15 Training and Education Job, Task Specific Address anticipated hazards, safe work practices, rules, equipment, materials, & emergencies New hires, newly assigned workers When new changes, processes, materials or equipment are introduced When observations, near misses or claims indicate a need Program Assessment and Monitoring Compare Results Against Goals Pre Claim Measures: Training, Observations, Inspections & Participation Post Claim Measures Frequency, Severity, Trends

introduced When observations, near misses or claims indicate a need Program Assessment and Monitoring Compare Results

16 Everest Provides Resources LOSS CONTROL RESOURCES: E SMART (Safety Management Assessment & Review Tool) Contractual Risk Transfer Evaluating Your Safety Program LC Alerts Risk Transfer Strategies Selecting Sub Contractors Checklist WC Claims Containment Strategies Model Injury and illness Prevention Programs Please visit our Loss Control web page resources at: Everest Loss Control Services Loss Control Alerts Newsletters Links to regulatory and other information sites Questions and Answers

Containment Strategies Model Injury and illness Prevention Programs Please visit our Loss Control web page resources at:

Risk Transfer: A Strategy to Help Protect Your Business. Risk Control

Risk Transfer: A Strategy to Help Protect Your Business Risk Control Businesses rely on crucial relationships with contractors, subcontractors, vendors and consumers. In these relationships, agreements