Cross Border. Are You Ready to Do Business in the US?

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1 Cross Border Are You Ready to Do Business in the US?

2 Failure to carry workers compensation insurance or to otherwise meet a state s regulations can result in the employer becoming liable for the employee s injuries and also for penalties imposed by the state for not having the required coverages. The United States marketplace is a logical step for expansion for Canadian companies, though companies entertaining cross-border opportunities should take note of the litigious pro-plaintiff legal environment in the U.S. Buying adequate and appropriate insurance is a necessity, but it can be a challenging undertaking. Coverages can differ materially from what Canadian insurance buyers are accustomed. Property and casualty insurance coverages in the United States are regulated by the individual states, except where the federal government chooses to regulate, and as a result, buyers must sort through a morass of insurance regulations that can vary significantly by state. This paper will give a brief overview of four coverages Canadian companies will most likely need to protect their interests when conducting business in the U.S. marketplace. Workers compensation Similar to Canada, where workers compensation insurance is regulated provincially, workers compensation insurance in the United States is regulated by each individual state with a few exceptions. The Jones Act, which applies to employment injuries on the high seas is one exception. Most employers are required by law to carry workers compensation insurance to cover injuries to workers arising out of the scope of their employment. Absent intentional acts or gross negligence, workers compensation coverage is usually an absolute bar to claims for liability. Failure to carry workers compensation insurance or to otherwise meet a state s regulations can result in the employer becoming liable for the employee s injuries and also for penalties imposed by the state for not having the required coverages. Most employees are covered by workers compensation, though some classes of employees are not required to be covered. Although it can vary by state, examples of these excluded classes are owners, independent contractors, casual workers, farm workers, maritime workers, railroad employees and volunteers. Maritime workers and railroad employees are covered under federal laws. Some states don t require an employee to be covered if the employee is solely compensated by commission. Most states allow for the purchase of workers compensation insurance from commercial insurers or a state run fund that competes with the private insurance market. A few states are monopolistic, meaning the only available option for workers compensation insurance is to purchase it from a compulsory state fund or qualify as a self-insurer. In a monopolistic workers compensation state, Stop-Gap Employers Liability coverage is an important consideration. Cross Border

3 Workers compensation laws provide for comprehensive and specific benefits to workers who are injured during the course of their employment. Benefits include medical expenses, death benefits, lost wages, and vocational rehabilitation. Benefit levels are set by state legislation and vary significantly by state. Premiums are highly regulated at the state level and are based on a company s payroll and the job function of its employees. This medley of regulations results in a great deal of work to understand the requirements of workers compensation in each state for Canadian companies as they seek to expand their business across the U.S. Workers compensation premiums and benefit levels probably will not be the deciding factor for Canadian companies in deciding where to site U.S. operations, but they certainly should be a part of the decision process. Employment Practice Liability (EPL) EPL coverage is not compulsory, but has become a very important coverage for companies doing business in the U.S. to purchase and understand. The potential for a lawsuit alleging an employment practices violation is an increasing risk for companies doing business in the United States. EPL claims are claims brought by employees (sometimes prospective employees or former employees) against their employer, typically alleging discrimination (race, gender, age 40 and over, sexual preference, etc.) or harassment (sexual and otherwise). Such actions are illegal in the U.S. pursuant to many state and federal laws. Employment practice liability lawsuits can be brought in both state and federal courts. The foundation for protecting employees against discrimination in the workforce was established with the passage of Title VII of the Civil Rights Act of Other legislation regulating employers conduct in the workplace include the Pregnancy Discrimination Act, the Equal Pay Act, and Age Discrimination in Employment Act of 1967 (ADEA). EPL suits are sometimes brought as class actions, and some cases against very large firms have settled in the hundreds of millions of dollars. EPL coverage is not compulsory, but has become a very important coverage for companies doing business in the U.S. to purchase and understand. The modern birth of EPL coverage in the United States occurred in the1990 s following the promulgation of significant pro-employee legislation including the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA). Smaller companies (less than 50 employees) are exempt from some of the regulations because the small size does not allow them to fiscally be able to comply with the requirements. However, EPL suits are a concern for companies of all sizes. The first step towards filing an EPL suit against an employer is usually filing a complaint with the U.S. Equal Employment Opportunity Commission (EEOC).The EEOC is responsible for enforcing the federal laws that make it illegal to discriminate. Employers with at least 15 employees are covered by EEOC laws (20 employees in age discrimination cases). The most important step to take as an employer to prevent against EPL claims is to have a well written, easy to understand employee handbook that sets rules in accordance with the requisite laws. EPL is advisable for all employers with employees in the U.S. Cross Border

4 Auto Insurance Product liability is critical in the U.S. due to its highly litigious environment. Just as in Canada, third-party auto liability coverage is compulsory. While insurance is regulated for the most part at the state level, because of the interstate nature of motor carriers, the federal government has a key role in regulating insurance for truckers. According to the U.S. Department of Transportation, Motor carriers of property operating commercial motor vehicles in interstate, foreign, or intrastate commerce, and for-hire carriers of passengers operating in interstate or foreign commerce must have at least the minimum amount of insurance required by law. Additionally, The motor carrier must have proof of the minimum level of insurance at the company s principal place of business. Minimum limits can be as high as US$5 million depending on the commodity transported. While the federal government plays a role in motor carrier financial responsibility requirements, liability issues usually remain a state matter. Thirty-six states follow a tort-fault based system in which the insurance of the driver who is at- fault for causing an accident is responsible for paying the other party s damages. Fourteen states follow the no-fault system in which the insurance company of the person involved in an accident pays the medical costs of its insured. Medical coverage (referred to as personal injury protection, or PIP) is required in these states. Pain and suffering lawsuits are not precluded in no-fault states, but persons bringing lawsuits for pain and suffering in no-fault states must meet a minimum threshold in order to bring a lawsuit. Until very recently it was necessary for Canadian cross-border motor carriers to be insured by a U.S. company or maintain a policy reinsured by the American issuer. In July 2010 The U.S. Federal Motor Carrier Safety Administration officially published a final rule that eliminated the need for Canadian insurance companies to link with a U.S. insurer to legally cover Canada-domiciled motor carriers operating in the U.S. The rule takes effect August 2, The rule has no effect on the minimum insurance levels required of Canadian carriers who cross into US. Products liability Products liability claims are most typically based on theories of negligence, strict liability, failure to warn or breach of warranty of fitness depending on the state in which the claim is brought. Each type of products liability claim requires different elements to be proven to present a successful claim. Under strict liability, which applies in many product liability cases, a defendant is liable when it is shown that the product is defective and that the defect caused injury. If there is a defect in the product that causes harm, then the defendant corporation will be held liable. Trial by jury is a right guaranteed under the United States Constitution, and therefore it is likely that a products liability case will be decided by a jury if the suit goes to trial. As a result, many suits are settled before going to trial to avoid the uncertainty of jury verdicts. Product liability is critical in the U.S. due to its highly litigious environment. 4 Cross Border

5 Conclusion The insurance needs for companies operating in the U.S. can vary substantially from the requirements in Canada, and may vary materially from state to state in the U.S. The best way to mitigate the exposures of Canadian companies doing business in the U.S. is to purchase policies issued by insurers licensed in the U.S. Insurance buyers are encouraged to discuss their cross border needs with a broker. Zurich 400 University Avenue Toronto, Ontario M5G 1S7 This is intended as a general description of certain types of insurance and services available to qualified customers through the companies of Zurich in North America. Your policy is the contract that specifically and fully describes your coverage. The description of the policy provisions gives a broad overview of coverages and does not revise or amend the policy Zurich Insurance Company Ltd (08/10)

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