1 Condominium Seminar Property Liability and Insurance Presented by: Micheka Kostyniuk, P.Eng. April Pittendreigh, BA, CAIB, CIP September 18, 2012
2 Objectives of Presentation to CCI 1. Risk assessment for hazards which could cause injuries on property; trips, slips, etc. 2. Building Codes and required maintenance of properties. 3. Review of the Commercial Property & Casualty Insurance Policy specifically focused on the coverage s available for Condo Corps as well as property appraisals, by-laws, response of coverage in a claims situation, deductibles and premiums.
3 Condo Corporations have a duty under the Occupiers Liability Act to maintain their properties in a safe condition to prevent injuries to members of the public who use these facilities. All injuries cannot be prevented, and the legal system is called into action to determine which accidents are the result of inadequate design or maintenance of facilities, as opposed to some other root cause.
4 Where deficiencies are shown to have caused or contributed to the accident, the next analysis is whether the deficiency was or should have been known to the Condo Corporation, and whether they took appropriate steps to remedy the deficiency before the accident
5 Injury Prevention Documentation is Key Create policies for how the Condo Corp will carry out routine maintenance (summer and winter), inspections, repairs, etc. Keep maintenance logs, inspection and repair records, records of complaints and follow up investigations, etc Include what constitutes a hazard, what is acceptable vswhat requires repairs, frequency of maintenance/inspections in policies.
6 Seek professional input, don t just guess! Ensure that your policies are reasonable and take into account what various standards require. Review policies periodically and update them as required over the years. Things change over time. Follow the policies and ensure any maintenance personnel do the same Always post warnings about potential hazards until repairs are completed
7 In the Event of an Injury: The best evidence will come from a promptand complete site investigation, followed by gathering additional evidence from the parties involved, through statements, photographsand physical evidence such as footwear in the case of a plaintiff who has fallen, or documentation such as policy manuals, inspection logs, timesheets, equipment logs, weather records, etc.
8 Most Common Liability Claims Slip and Fall (e.g. icy or slippery walkway) Trip and Fall (e.g. change in elevation) Other Types of Falls (e.g. ramp is too steep) Accident on Stairway Equipment Failure (e.g. door handle falls off) But other accidents can occur, depending on your location and situation
9 Some Things to Consider Winter Maintenance The frequency of snow removal and de-icing. Regular snow removal will keep de-icing to a minimum and create a safer walkway Type of maintenance make sure your de-icer is right for your situation. It must be effective for pedestrian safety Freeze-thaw. During sunny/warm days, even if the temp is still below zero, snow can melt and re-freeze as ice when the sun and/or temp goes down again
10 Some Things to Consider Summer Maintenance Walkway surface condition. Has there been settlement, movement, cracking, or other deterioration to the walkway surface? Are tree roots causing damage to walkways or other areas? Are there trip hazards on the property? Tree roots, uneven surfaces, patches where grass has been worn away to produce a dirt/mud surface?
11 Some Things to Consider General Maintenance Condition of common elements, such as hallways, stairs, entrances, exits, etc. Finishes should be in good repair and not pose any risk hazards, debris should be cleaned, any liquids should be cleaned Inspect common elements regularly to ensure that hazards are identified and eliminated Make sure handrails, door knobs, and other hardware remain securely fastened Check lights and ensure adequate lighting levels
12 Additional Things to Consider During any type of renovations or repairs to a structure, always get the proper permits All new construction must conform to 2006 Ontario Building Code Keep records of all renovations for future reference Security cameras in common areas can capture events on camera If in doubt, be conservative. Going above and beyond in maintenance is better than not doing enough
13 Codes and Standards 2006 Ontario Building Code ASTM F Standard Practice for Safe Walking Surfaces Occupier s Liability Act o An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.
14 Building Code Assessments If there is an accident in a stairway, walkway, or other building area, a Building Code Assessment will become important Building elements must meet the Building Code that was in force at the time of its construction or renovation It is not necessary to bring building elements up to current Code standards, unless renovations are being undertaken
15 Falls on Walkways Pedestrians walking on walkway surfaces such as hallways, sidewalks, driveways, or parking lots can trip on ledges or in potholes, or slip on ice and snow. Falls on sloped surfaces at driveway curb cuts, ramps, and other similar areas can occur if slopes are excessive or the surface is slippery Slip Testing can be undertaken on flooring surfaces to ensure they are slip resistant
17 ASTM F : Standard Practice for Safe Walking Surfaces 5. Walkway Surfaces 5.1 General: Walkways shall be stable, planar, flush, and even to the extent possible. Where walkways cannot be made flush and even, they shall conform to the requirements of 5.2 and 5.3.
18 5.2 Walkway Changes in Level: Adjoining walkway surfaces shall be made flush and fair, whenever possible and for new construction and existing facilities to the extent practicable Changes in levels off less than ¼ in. (6 mm) in height may be without edge treatment. (See Fig 1.) Changes in levels between ¼ and ½ in. (6 and 12mm) shall be beveled with a slope no greater than 1:2 (rise:run) Changes in levels greater than ½ in. (12mm) shall be transitioned by means of a ramp of stirwaythat complies with applicable building codes, regulations, standards, or ordinances, or all of these.
19 5.7 Exterior Walkways: Exterior walkways shall be maintained so as to provide safe walking conditions Exterior walkways shall be slip resistant Exterior walkway conditions that may be considered substandard and in need of repair include conditions in which pavement is broken, depressed, raised, undermined, slippery, uneven, or cracked to the extent that pieces may be readily removed Exterior walkways shall be repaired or replaced where there is an abrupt variation in elevation between surfaces. Vertical displacements in exterior walkways shall be transitioned in accordance with Edges of sidewalk joints shall be rounded.
20 Insurance Presentation Provide an outline of the insurance requirements in the Condominium Act, 1998 (the Act ) Discuss coverages for property insurance, liability insurance, boiler and machinery insurance, D&O liability insurance, fidelity bonding, and unit owner coverage Provide information on claims procedures and what can be expected in the event of a claim Discuss risk management and other hot topics
21 Table of Contents 1. Condominium Corporation Insurance A) Condominium Corporation Insurance B) Property Insurance Coverage C) Standard Unit By-laws D) Insurance Deductible By-laws E) Property Claims Reporting Procedures F) General Liability Coverage G) CGL Claims Handling H) Boiler and Machinery Coverage I) Director s and Officer s Liability Coverage J) Fidelity Bonding
22 Table of Contents continued 2. Personal Insurance Unit Owner 3. Risk Management 4. Other Issues/Hot Topics 5. Q & A
23 1. (a) Corporation Property Insurance Coverage Condominium corporations are required to obtain and maintain insurance for damage to the units and the common elements caused by major perils or the other perils that the corporation s declaration or by-laws may specify. Many declarations require all risk * insurance to be obtained as this coverage is far broader in scope and provides full coverage for all property damage no matter how occasioned, subject to specified exclusions listed in the policy.
24 1. (a) Property Insurance Cont d The beneficiaries of the insurance are the condominium corporation and the owners. Improvements made to the standard unit made by the owner are not required to be covered. Coverage is on a replacement cost basis, subject to a reasonable deductible.
25 1. (b) Standard Unit By-laws The Act has created the concept of a standard unit. This is intended to establish, for insurance purposes, what portions of a condominium unit will be insured by the condominium corporation, with the remainder being the responsibility of the individual unit owners to insure. Anything beyond the standard unit is considered an improvement and is the unit owner s responsibility to insure.
26 1. (b) Standard Unit By-laws continued It should be noted that chattels (your stuff) are not part of the standard unit definition. A standard unit by-law is also not intended to, nor can it, change the unit boundaries of the corporation or any part of the common elements. The standard unit definition must restrict itself to the unit components of the corporation.
27 1. (c) Insurance Deductible By-laws There will be a deductible under the corporation s master policy, being an initial amount of an insured loss that an insurer will not pay. The Act states that the amount of any deductible in the insurance policy shall be a common expense of the corporation.
28 1. (c) Insurance Deductible By-laws There are two exceptions to this general rule: (i) where the owner, lessee or resident of the unit is responsible for the damage to his or her unit, in which case the owner is responsible for the lesser of the deductible and the cost of repairing the unit, and (ii) where the corporation enacts a by-law that provides that the deductible can be charged back to the unit that is damaged where the damage was not caused by the condominium corporation or the owner and the owner is responsible for the repair of the unit
29 (c) Insurance Deductible By-laws con t The deductible can be collected in these circumstances in the same manner as common expenses. Owners may also obtain insurance to cover the amount of the deductible.
30 1. (d) Property Claims Reporting Procedures Losses should be reported to your insurance broker as soon as possible. Photos/diagrams should be obtained Emergency repairs may need to be completed to mitigate the loss contact information regarding contractors should be provided by your broker. Gather as much information as possible if there are any at-fault parties
31 1. (d) Property Claims Reporting Procedures Gather witness contact information For those who are insured through S&H, these are reported as per protocol to your adjuster contact. The adjuster will obtain the information above for you.
32 1. (e) General Liability Coverage The Act mandates that all condominium corporations obtain and maintain comprehensive liability insurance as the occupier of lands for the common elements and for the assets of the corporation.
33 1. (e) General Liability Coverage continued The insurance industry offers a Broad Form of liability coverage which can be broadened considerably by the attachment of endorsements. This type of coverage is usually referred to as CGL commercial general liability insurance. This will cover exposure to occupier s liability and a host of ancillary coverages. A key point to remember is that the definition of insured should include all officers, directors, and employees.
34 General Liability Cont d Your Legal Responsibilities & Risks Occupier s Liability under common law, as an occupier of your business premises, you owe a duty of care to anyone entering onto your property to keep them safe from harm Definition: An occupier is someone who has: o Physical possession of a property o Control over the activities on a property o Access to the property
35 General Liability Cont d Duty of care owed When might an occupier be found liable? What Plaintiffs must prove in court Factors the Court consider What information should be obtained to aide your defense?
36 1. (f) CGL Claims Handling An occurrence report should be completed this is done by you and not the claimant Never admit liability Do a proper scene investigation so that evidence is preserved Do not discuss the incident with anyone other than your insurer or legal counsel
37 1. (f) CGL Claims Handling continued Forward all legal documentation immediately to your insurer Gather as much information as possible about the claimant while making them as comfortable as possible Gather as much info as possible about witnesses
38 1. (g) Boiler & Machinery Coverage The Act mandates that condominium corporations obtain and maintain insurance covering the corporation s use and operation of boilers, machinery, pressure vessels and motor vehicles, as applicable. Most declarations require this type of insurance, as well.
39 1. (g) Boiler & Machinery Coverage continued This type of insurance is usually obtained for highrise buildings because of their centralized heating, and hot water and air-conditioning systems, but can also be required by townhouse and stacked-home condominium corporations should they have central systems, pools, recreation centres, commercial units, et cetera. Boiler and Machinery policies are designed to insure against the sudden and accidental breakdown of equipment or explosion damage by pressure vessels.
40 1. (h) Directors and Officers Liability Coverage The Act states that condominium corporations are obligated to purchase and maintain directors and officers liability insurance for their acts done honestly and in good faith, but only where the insurance is reasonably available. Directors and officers liability insurance is designed to protect the condominium corporation from losses/claims flowing from the mistakes of the directors and officers.
41 1. (h) Directors and Officers Liability Coverage continued Directors and officers liability insurance never protects against losses or claims flowing from dishonesty. In the case of dishonesty, the director or officer bares the risk and the condominium corporation should explore the possibility of fidelity bonding. Directors and officers liability insurance is claimsmade insurance.
42 1. (g) Fidelity Bonding This type of coverage indemnifies the condominium corporation for the loss of money, securities and other property as a result of any fraudulent or dishonest act or acts committed by employees, acting alone or in collusion with others. Condominium corporations should insist on a blanket bond, one that covers not only employees, but is extended to include board members, the officers, committee members and volunteers. Under bonds, the limit erodes
43 2. Personal Insurance Unit Owner Coverage The typical unit owner policy will cover personal property, loss of use of your unit, unit protection (unit improvements and betterments, loss assessment), and certain additional coverages (e.g. loss due to change in temperature, doors and glass coverage, fire department charges, et cetera), and personal liability protection.
44 2. Personal Insurance Unit Owner Coverage continued To make sure that one is adequately covered, it is necessary to increase the amount of insurance by the value of each improvement and, if there is a standard unit by-law in place, by the value of the any fixtures and finishings, as applicable. Unit owners should discuss deductible insurance with their agents and brokers
45 3. Risk Management Transferring Risk Three-Step Loss Prevention Program o identify hazards o implement procedures o document procedures
46 4. Other Issues / Hot Topics A) Appraisals What is it for? What does it do? Is it required? Replacement Cost vs. Market Value Helps protect the directors as there is normally an exclusion in D & O policy
47 4. Other Issues / Hot Topics Cont d B) Premiums / Rates Are they on the rise? What can be done to minimize price increase? C) Standard Unit By-law Why have one? How detailed should it be?
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