TRIP, FALL AND CATCH THE WAVE: AN INTERACTIVE GUIDE TO RISK MANAGEMENT

Transcription

1 TRIP, FALL AND CATCH THE WAVE: AN INTERACTIVE GUIDE TO RISK MANAGEMENT Mark Bernstein, J.D. Howard Franco, Jr., Esq. Michael L. Wroniak, Esq. Christie Bodnar Swiss, Esq.

2 THE INCIDENT

3 TODAY YOU WILL LEARN WHAT TO LOOK FOR WHEN INVESTIGATING CLAIMS HOW TO TAKE STATEMENTS RESPONDING TO CLAIMS DEALING WITH THE MEDIA

4 GENERAL OVERVIEW Types of Claims Trip/Slip and Fall Workplace Injury Third Party Liability Products Liability

5 ELEMENTS TO ESTABLISH LIABILITY Depends on the Type of Claim Tort Based Contract Based Public Entity v. Private Entity Statutory Requirements Common Law

6 NEGLIGENCE ELEMENTS TO ESTABLISH LIABILITY DUTY BREACH OF THE DUTY CAUSATION DAMAGES

7 PRODUCTS LIABILITY ELEMENTS TO ESTABLISH LIABILITY HARMED BY A PRODUCT THAT CONTAINED MANUFACTURING DEFECT DESIGN DEFECT FAILURE TO WARN

8 WHY DID WE JUST GO THROUGH THIS? USE THESE ELEMENTS TO CONDUCT YOUR INVESTIGATION! Keys to the investigation OWNERSHIP CONTROL NOTICE

9 THE TIMELINE FIRST: SECOND: THIRD: FOURTH: THE INCIDENT OR RECEIVE CLAIM FORM BEGIN INVESTIGATION CLAIM RESPONSE LAWSUIT

10 FIRST: NOTICE OF INCIDENT INCIDENT FORM PROTOCOL Develop, Communicate and Follow Protocol CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION or PREPARED AT THE REQUEST OF COUNSEL or PREPARED IN ANTICIPATION OF LITIGATION

11 SECOND: INVESTIGATION INCIDENT FORM Time, Date and Activity Observations ONLY NO Opinions

12 INVESTIGATION GATHER INFORMATION IMMEDIATELY Determine if claim has merit Preservation of evidence FIX THE PROBLEM?

13 DEALING WITH CLAIMANTS (AND CLAIMANT S COUNSEL) Respect Courtesy Understanding Professionalism Sincerity DO NOT EXPRESS ANY OPINIONS! Avoid commentary Stick to Facts remember Joe Friday

14 OBTAIN STATEMENTS CLAIMANT THIRD PARTY WITNESSES EMPLOYEES INDEPENDENT CONTRACTORS

15 SAMPLE STATEMENT SAMPLE STATEMENT

16 GATHER DOCUMENTS Inspection Reports Maintenance Records Citizen Service Requests/Complaints s and other correspondence Prior Tort Claims Original Design Documents

17 GATHER MORE DOCUMENTS Photographs Videos OF WHAT? Physical Injuries Property Damage Accident location Many different angles Alleged dangerous condition

18 WHAT S NEXT? Preserve Documents and Things! Create Paper Trail of Investigation NO OPINIONS Tender to Third Parties Independent Contractors Contractors Insurance Carriers Insurance Brokers Public Entities May need to do your own Tort Claim

19 THIRD: CLAIM RESPONSE Deny Settlement Worker s Compensation Disability

20 WORK AS A TEAM

21 Team Building Attorneys and claims/risk managers need to communicate with each other regularly , Phone or In-Person Attorney reports should contain critical analysis and recommendations Open and honest communication BOTH GOOD AND BAD!

22 Media Concerns Media shapes and forms public opinion with how it reports your case in several different ways

23 COMMON MISTAKES Too many people making statements One Person One Agency Making or not making a statement or talking to the press Statements that fuel the fire

24 FOURTH: THE LAWSUIT YOUR INVESTIGATION PROVIDES GROUNDWORK FOR DEFENDING LAWSUITS!

25 TYING IT ALL TOGETHER INVESTIGATION EVIDENCE Investigation Claim Report Documentation Photographs/videos Statements Assess Liability Assess Damages evidence Direct Evidence Indirect Evidence Impeachment Evidence Depositions Develop Theme(s) Assess Liability Assess Damages

26 QUESTIONS? Howard Franco, Jr., Esq. Christie Bodnar Swiss. Esq. Collins Collins Muir + Stewart Collins Collins Muir + Stewart 2173 Salk Avenue, Suite Salk Avenue, Suite 250 Carlsbad, CA Carlsbad, CA Tel: (760) Tel: (760) hfranco@ccmslaw.com cswiss@ccmslaw.com Michael L. Wroniak, Esq. Mark Bernstein, J.D. Collins Collins Muir + Stewart Carl Warren & Company 750 The City Drive, Suite Vista Sorrento Pkwy Orange, CA Suite 420 Tel: (714) San Diego, CA mwroniak@ccmslaw.com Tel: (858) mbernstein@carlwarren.com