Management Liability Claims Trends and Their Impact on Universities

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1 Management Liability Claims Trends and Their Impact on Universities John Ergastolo, Arthur J. Gallagher & Co. P:\producer\norton\d&o.ppt-99

2 Management Liability and Higher Education Impacting Educators Legal Liability insurance: D&O (Management Liability) Employment Practices Liability (EPL) E&O (Professional Liability) Failure to educate Ancillary E&O exposures (medical professional, etc.)

3 Trends Impacting Higher Education Employment-related claims Federal budget crisis State budget cuts Expense controls (RIFs, etc.) Endowment funds Public/private JVs For-profit institutions

4 Where Are Higher Ed Losses Coming From? Employment-related matters For-profit colleges Student claims True failure to educate claims Employee dishonesty claims

5 Management Liability 2012 Macro Trends The economy, the stock markets and the employment markets seem to now have a pulse. With many endowment funds having healthier returns on investments will there be a ramping up of infrastructure investment in higher education? Will there be more desire for capital expenditure projects? The broader management liability market is experiencing a bottoming out Larger institutions, particularly state institutions, are likely to be underwritten more extensively. Those with health system risks may be underwritten more closely. Insurance capacity is better than ever.

6 Factors Influencing EPL Losses 1. The Older Workers Benefit Protection Act of 1990 and The Age of Discrimination in Employment Act of The Civil Rights Act of The American with Disabilities Act of 1990 (effective 1992) 4. The Family and Medical Leave Act (1993) 5. Class Action EPL Claims 6. Third party claims (students, etc.) 7. State employment watchdog agencies 6

7 EPL Perils to consider Retaliation (including whistleblower) Wrongful Termination (actual and constructive) Breach of Employment Contract Discrimination Harassment (sexual and workplace, including bullying) Failure to Employ/Promote/Educate Wrongful Discipline or Wrongful Demotion Failure to Grant Tenure Negligent Evaluation Invasion of Privacy and False Imprisonment Employment Related Misrepresentation Defamation or Employment Related Libel/Slander Wrongful Infliction of Emotional Distress 7

8 Large EPL Claims by Type of Claim Sexual Harassment 12% Race Discrimination 15% Disability & Other Discrimination 7% Gender Discrimination 14% Age Discrimination 18% Whistle Blowers & Other Claims 7% Wrongful Termination 20% Retaliation 7% 0% 4% 8% 12% 16% 20% 24% 8

9 Top 10 States for Large EPL Claims 30 Note: numbers are percentages CA TX NY FL IL NJ MI OH DC MA 9

10 EPL Coverage Triggers Written Demand for Monetary Damages Civil Proceeding Arbitration Proceeding Administrative Proceeding Request for Toll of Statute of Limitations 10

11 EPL Coverage Triggers Written Demand for Monetary Damages Civil Proceeding Arbitration Proceeding Administrative Proceeding Request for Toll of Statute of Limitations 11

12 Punitive Damages & EPL Claims About one-third of top $2.5 BL in large losses are due to punitive damages Of largest 150 claims, about half have punitive damages awarded Average percentage of full award that is punitive is about 35% for all large losses, but closer to 70%, if a punitive award is present 12

13 Statutes & Law Supporting EPL Claims Title VII Statutory Common Law Breach of Contract Age Discrimination in Employment Act Americans with Disabilities Act Pregnancy Discrimination Act Equal Pay Act Family and Medical Leave Act Title IX Federal Fair Labor Standards Act State Fair Employment Practice Statutes Whistleblower Laws Municipal Statutes and Regulations Wrongful Termination Negligent and Intentional Infliction of Emotional Distress Defamation Invasion of Privacy Tortious Interference with Contract Harassment Assault and Battery Negligent Hiring/Supervision Fraud and Misrepresentation 13

14 Trends in EPL Insurance The EPL exposure, including potential for catastrophic loss, has increased significantly since 1991 Meanwhile, EPL coverage has been greatly improved: sometimes packaged with Loss Control consulting punitive damages covered no downsizing exclusion bilateral discovery offered no intentional acts exclusion simpler reporting requirements often available flexible selection of defense firms may be possible third-party claim coverage 14

15 The EPL Insurance Policy Who is covered? Directors & Officers All Full-time Employees Temporary Employees and Volunteers Independent Contractors The Corporate Entity and Subsidiaries Students (generally in a limited capacity) 15

16 Who can bring covered claims? Employees Students Applicants for hire EEOC State Agencies Directors 16

17 Potential Exclusions Strikes, Lockouts Downsizing Willful or Malicious Intent Willful failure to comply with law M/A activity Bankruptcy Class Actions Deliberate Fraud Prior Notice W. A. R. N. Benefits Due Employment Contracts Work Comp Claims OSHA Securities Violations Wage & Hour Claims 17

18 Coverage Triggers Written Demand for Monetary Damages Civil Proceeding Arbitration Proceeding Administrative Proceeding Request for Toll of Statute of Limitations 18

19 Basics of a D&O Insurance Policy Declarations Typical Insuring Clauses A: Individual or Personal Liability B: Corporate Reimbursement C: Entity Coverage Definitions Executives; Subsidiary Claim; Securities Claim Wrongful Act; Loss

20 D&O Policy Basics (Continued) Extensions Exclusions Clarifications on Limits and Retentions Claim and Notice Reporting Provisions Defense Costs, Settlements, Judgments Extended Reporting and Cancellation Clauses Change in Control Provisions

21 Why Entity Coverage? To encourage the dismissal of individual directors and officers from lawsuits To solidify defense by providing one team To eliminate pushing responsibility toward individuals to maximize insurance recovery To eliminate disputes regarding allocation To provide greater balance sheet protection

22 Provides Coverage For Non-BI/PD Losses resulting in Claims made against directors and officers, arising from Wrongful Acts in their capacity as directors and officers of the company

23 Advancement of Defense Costs Carrier will or may advance, at carrier s sole option, or will not advance prior to final disposition of the claim

24 Coverage is Subject To Policy limits Retentions Exclusions Conditions precedent to coverage

25 Policy Limits How limits are applied: Defense included in limits Annual aggregate

26 Retentions Typically coverage is excess of a retention Defense usually applied toward retention Typically only the larger retention applies if both sides are involved

27 Common Exclusions Personal injury, libel, slander (entity) Insured vs. Insured (except EPL, etc.) Environmental (Pollution; Nuclear) Conduct (e.g., Personal Profit, Fraud, Criminal) Other Insurance Available: EPL, Fiduciary, Bodily Injury, Property Damage Knowledge/Timing: Prior & Pending Litigation; Prior Acts; circumstances noted on application

28 Some Conditions Timely Notice of claims Claims made form Two retroactive dates Prior acts date Pending/prior litigation date Continuity is an issue when changing carriers

29 What is a Claim? Written demand for money Sometimes Money or Other Relief Civil suits Criminal suits Formal administrative or regulatory proceedings Sometimes Investigations

30 Directors & Officers Liability Avoiding the claims minefield

31 Directors & Officers Loss Control Public relations policy Centralized communications with press, etc. Press releases on crisis matters Information control Strong corporate governance Transparency Accurate Revenue Recognition

32 Now You Know The Product We will be taking a look at three claims: EPL claim Ripple effect claim D&O claim Failure to educate claim Breach of fiduciary duty claims D&O Claim Failure to supervise/monitor

33 Surina Dixon Claim Gender Discrimination & Retaliation Head Women s Basketball Coach Claim began in 2008 Jury award of $730,000 Currently on appeal

34 The Ponzi Schemes Bernard Madoff related claims (estimated $65B) Allen Stanford ($7B scheme) Barry Tannenbaum (+$1B in South Africa) Scott Rothstein ($1.4B scheme) What are the ramifications to higher education?

35 New York Law School Nine New York Law School graduates Allege fraudulent inducement and failure to educate Damages sought is $225 million Case recently thrown out, but will be appealed 17 other similar claims are being brought by plaintiff s firm

36 Campus Violence Claims Virginia Tech Incident $11MM settlement in 08 Recent $8M award for two victims State cap of $100,00 Northern Illinois University shooting of February 14, 2008 What are the management liability implications?

37 Misconduct Claims Penn State University Syracuse University Fairfield University What could the policy cover for this type of claim?

38 and in conclusion Questions and Answers

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