DC BAR PRO BONO PROGRAM Non-profit Insurance Webinars

Transcription

1 PRESENTATION TITLE DC BAR PRO BONO PROGRAM Non-profit Insurance Webinars Webinar 4 Loss Prevention Date: February 16, 2011 Presented by: Barry J. Fleishman, Kilpatrick Townsend and Stockton LLP Jennifer Rasile Everitt, Kilpatrick Townsend and Stockton LLP Margaret L. Ackerley, Senior VP & General Counsel of World Wildlife Fund Monica Irvine, Associate General Counsel & Director of Risk Management of World Wildlife Fund

2 INTRODUCTION Moderator: Regina Hopkins, District of Columbia Bar Pro Bono Program Purpose, Schedule and Format of Webinars Introduction of Presenters Barry J. Fleishman, Partner, Kilpatrick Townsend & Stockton LLP Jennifer Rasile Everitt, Counsel, Kilpatrick Townsend & Stockton LLP Margaret L. Ackerley, Senior VP & General Counsel of World Wildlife Fund Monica Irvine, Associate General Counsel and Director of Risk Management of World Wildlife Fund

3 OVERVIEW OF WEBINAR SERIES Overview of Webinar Series November 17, 2010 Understanding Insurance December 15, 2010 Buying Insurance January 12, 2011 Filing an Insurance Claim February 16, 2011 Loss Prevention

4 Loss Prevention A Legal Framework Accidents Happen

5 Loss Prevention Negligence NEGLIGENCE 1. Legal duty to perform or to use reasonable care 2. Failure to perform that duty (breach) 3. Plaintiff suffered an injury or a loss as a result of defendant s breach 4. The injury was a reasonably foreseeable consequence of the defendant's breach

6 Loss Prevention Gross Negligence WHAT IS GROSS NEGLIGENCE?

7 Loss Prevention Gross Negligence GROSS NEGLIGENCE 1. Legal duty to perform or to use reasonable care 2. Reckless, willful or voluntary disregard of the need to use even the slightest amount of reasonable care 3. Plaintiff suffered an injury or a loss as a result of defendant s action or inaction 4. The injury was a reasonably foreseeable consequence of the defendant's action or inaction

8 Loss Prevention Reasonableness REASONABLENESS Reasonable care: The degree of care that a reasonably prudent person would use under like circumstances. Primary factors to consider in ascertaining whether the person's conduct lacks reasonable care are: the foreseeable likelihood that the person's conduct will result in harm; the foreseeable severity of any harm that may ensue; the burden of precautions to eliminate or reduce the risk of harm circumstances surrounding activity

9 Loss Prevention Ramification of Accidents Ramifications of an Accident 1. Damages 2. Punitive Damages 3. Insurance Coverage

10 Loss Prevention Ramification of Accidents Damages Damages Monetary compensation that is awarded by a court in a civil action to an individual who has been injured through the wrongful conduct of another party. The purpose of damages is to restore an injured party to the position the party was in before being harmed. As a result, damages are generally regarded as remedial rather than preventive or punitive.

11 Loss Prevention Ramification of Accidents Punitive Damages Punitive Damages

12 Loss Prevention Ramification of Accidents Punitive Damages Punitive damages are damages awarded in a lawsuit, in addition to actual damages, as a punishment and a deterrent to others from engaging in malicious, evil or particularly fraudulent acts. Plaintiff must prove that the defendant's conduct was malicious, willful or in reckless disregard of plaintiff's rights.

13 Loss Prevention Ramifications of Accidents Insurance Coverage Accidents Happen That s what insurance is for Insurance provides coverage for those events that are unexpected and unintended Property CGL Automobile Environmental Pollution Directors & Officers Employment Practices Liability (EPL) Errors & Omissions Workers Compensation Specialized Policies

14 Loss Prevention Identifying Risk WHAT ARE YOUR RISKS?

15 What are your Risks? Experiential History Experiential History ~Those who ignore history are bound to repeat it~ Identify accidents that have occurred in the past Analyze how you could have prevented the accident from occurring What was the result of the accident? Damages incurred?

16 What are your risks? Actuarial History Actuarial History Statistics for accidents in your particular industry/field Types of accidents that typically occur in your field and resulting damages

17 What are your risks? Like - Market History Like -Market History Research accidents/events that others in your industry have encountered Talk with other risk managers / officers regarding accidents and resulting damages

18 Loss Prevention Identifying Risk Resource Resources to Identify Risks Insurance Broker Insurance Company Trade Organizations External consultants Local embassy/ other NGOs For-profit companies Interviews with Staff

19 Loss Prevention Protecting Against Risk Resources Addressing Risks Standards Forms (i.e. waivers, releases) Schedules Policy Manuals Best Practices Training Oversight Background Check Talk to broker/insurance company

20 Loss Prevention Protecting Against Risk Culture of Safety Promote a Culture of Safety Provide guidelines on safety Messaging from top management Reinforce in trainings Weekly newsletter tips Encourage employees/volunteers to report hazardous situations

21 Loss Prevention Protecting Against Risk Building a Safety Infrastructure Building a Safety Infrastructure Incorporate safety expenses into donor proposals Implement incident reporting and log Identify avenues of communication/expertise Safety focal points/network Emergency line Contingency Fund

22 Loss Prevention Protecting Against Risk What is a Reasonable Response? What is a Reasonable Response? Consult with attorney Have persons with knowledge be part of the decisionmaking process Notify insurance company

23 Loss Prevention Protecting Against Loss The Financial Response/Insurance Financial Response/ Insurance Review insurance portfolio Review policies Check limits of insurance Specialty coverage offered? Require additional insured status where possible

24 Loss Prevention Protecting the Protection Document Reasonable Action Document Reasonable Action Keep records of those programs/ steps taken to prevent loss Provide written training materials to employees/ volunteers Take pictures of Property that is at risk

25 Loss Prevention Protecting the Protection Review and Reanalyze Regularly Review and Reanalyze Regularly Establish timetable to review and reanalyze risk (i.e. quarterly, bi-monthly) After each accident, analyze the cause, damage and research ways to prevent the same in the future Regular meetings with insurance broker/ insurance company

26 Develop an Immediate Response Plan Establish a protocol for responding to incident Identify first responders Identify contacts (lawyers, internal corporate officials, communications team, PR, public safety officials) Emergency financing Emergency communication methods

27 Questions QUESTIONS