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Employers Vulnerable to Associational Discrimination Claims

Most employers are aware of the employee protections found in Title VII of the Civil Rights Act of 1964. Employers may not discriminate against employees on the basis of race, color, religion, sex or national origin. Also, they may not retaliate against employees who have protested against an illegal employment practice or who participated in an investigation or other activities against the employer for an illegal practice.

Further, recent court decisions have applied Title VII’s protections to an employee’s association with another person whose characteristics fall under those protections. The U.S. Supreme Court held in 2006 that employers cannot discriminate against someone closely related to or associated with a person who is exercising protections under Title VII. Two federal courts earlier this year ruled that employers violated the law by discriminating based on association. One allegedly fired a white basketball coach because his wife was African-American; the other allegedly fired an employee whose coworker’s fiancé filed a complaint with the Equal Employment Opportunity Commission.

All employers are vulnerable to these types of accusations, even those who strive to obey the law. Employment practices liability insurance (EPLI) policies cover many types of losses resulting from employee claims. How will they respond to association discrimination claims?

EPLI policies vary somewhat from one insurance company to another, but most provide coverage for acts such as discrimination, wrongful termination, harassment, retaliation, and inappropriate employment conduct. A typical policy covers discrimination against an employee for termination of the employment relationship, demotion, failure to promote, denial of an employment benefit or other adverse action based on a number of characteristics such as color, race, sex, ethnicity, age and religion. It also covers retaliation claims if the employee engaged in a protected activity, the employee suffered an adverse action, and the protected activity caused the adverse action. Because they specifically apply to employees who have these characteristics or who perform protected activities, these policy provisions do not appear to cover actions against employees because of their association with others.

However, the policies usually also cover “inappropriate employment conduct.” Among the acts that may fall within this category are coercion, wrongful demotion, wrongful discipline, retaliatory treatment, and others. The definition of “inappropriate employment conduct” will be different from one policy to another. One insurance company may cover association discrimination while another may not. As such, employers should discuss specific terms of coverage with their insurance agent.

The policies might cover the employer, but not the employee alleged to have committed the act, if a court determines the employee deliberately acted illegally or with intent to harm the other employee. For example, if a court ruled that a supervisor was acting maliciously when he fired an employee for marrying someone of a different race, the insurance might pay for the employer’s defense and liability but not for that of the supervisor.

In this era where job cuts and lawsuits are common, employers face a real exposure to actions against them for the decisions they make. Lawsuits can be costly even if they are groundless; the costs of defending them can mount rapidly. EPLI provided by a financially solid company is an important part of every employer’s risk management program.

EPLI, coupled with a well-executed loss prevention program, will help any employer survive employee accusations.

Using Airbags Without Seat Belts Increases Risk of Spinal Cord Injury

The National Safety Council reports that significant cervical spine injuries can result from car crashes occurring at speeds as low as 5 miles an hour and that result in little or no damage to the car itself. According to a recent study conducted by the University of Pittsburgh, the risk of injury increases when airbags are deployed during a crash and the driver and passengers aren’t wearing seat belts.

The cervical spine is the seven vertebrae of the spinal cord that comprise the neck. It can be damaged when it is compressed against the shoulders during a collision or when the head is violently jerked either backwards or forwards, causing injuries to the muscles and ligaments of the neck. The resulting neck sprain is commonly referred to as whiplash.

The research team, lead by Dr. William F. Donaldson III, used data gathered from a Pennsylvania trauma database to identify crashes resulting in spinal cord injuries from 1990 to 2002. They examined approximately 12,700 spinal injury patient records and of these, 5,500 were identified as either drivers or passengers who experienced fractures of the cervical spine.

After studying the cervical spine injury records, researchers found that drivers who were not wearing a seatbelt had a 54 percent rate of cervical spine fractures. However, drivers who used both an airbag and seatbelt had only a 42 percent rate of injury. After adjusting for other factors, the relative risk of cervical spine fracture was 70 percent higher for drivers using an airbag alone compared to drivers who used an airbag and seat belt.

The risk of cervical fracture was approximately seven times higher for passengers who used only an airbag. For both drivers and passengers, men were more likely than women to be injured when using an airbag alone.

Another important discovery the researchers made was that drivers and passengers who used an airbag alone were more severely injured than those who used both. They also spent more time in the intensive care unit and more total time in the hospital.

The results of the study indicate that drivers and passengers who use airbags without seatbelts have a higher rate of cervical spine fractures and have more severe injuries, including injuries to the chest, abdomen, and head. Dr. Donaldson and his team concluded that using a seatbelt with an airbag and maintaining at least 10 inches between the steering column and the sternum may decrease the severity of injuries in general, in addition to reducing the instances of airbag induced cervical spine injuries.

Tips for Evaluating Contractor’s All Risk Policies

Construction is a high risk industry. Personal injuries and property damage occur frequently, and these events ultimately cost the contractor money. Many times such claims could be covered under a Contractor’s All Risk (CAR) policy.

CAR policies, commonly referred to as Course of Construction or Builder’s Risk policies, insure against physical loss or property damage to works, plant, equipment and materials during the course of construction. Such policies can be complicated so contractors should take care to ensure that any coverage adequately covers the risks of the construction project to be undertaken. Many contractors can be caught short by failing to evaluate their potential liability risks in relation to the policy they are considering.

Here are some important rules to evaluate CAR policies:

* Conduct an insurance audit with a risk manager or broker to determine potential liability and any risk not covered by your current policy.
* Consult with your broker because many insurers can customize the coverage to match the needs of the project. The insurer needs time to do this effectively, so don’t wait till the last minute.
* Take note of exclusions because while most are expressly stated, others can be implied and can radically limit your protection. One frequently implied exclusion is consequential loss relating to loss of profits and expenses as an indirect result of the cause of the claim. Naturally occurring events such as deterioration due to mildew, rust, or obsolescence may also be deemed as implied exclusions.
* Confirm there are no unusual limitations on the measure of damages. The method in which your insurance carrier determines damages can significantly affect your bottom line.
* Carefully consider the period of coverage as it normally only extends to when the contractor is on site and ceases when the client takes possession. Ensure there is extended coverage should problems develop later on.
* Technological changes using business information technology opens many contactors to new risks if they incorporate design management in the construction project. Additionally, construction companies which use BIM also have to consider potential losses due to hacking or data corruption that would not likely be covered under a CAR policy.
* Review the excesses and deductibles to be applied by your insurer to determine if they are reasonable.
* Fully document your damages with the aid of an experienced consultant, as CAR carriers will strive to reduce the cost of damages. Costs stemming from prolongation of the claim may be restricted to maximum excess limitations.
* Use a legal consultant especially when preparing a major claim. They can guide you through any potential red tape and aid in negotiating a proper settlement.

When Your Adult Kids Move Back Home, Double-Check the Insurance

The slow economy of the past few years has exacerbated a trend that was already underway, that of adult children moving back in with their parents. A 2007 study found that one-third of people aged 18 to 34 were living in their parents’ homes. In addition to the issues this trend raises in households with regard to cost-sharing, work-sharing and personal boundaries, insurance issues arise. Home and auto insurance forms are very clear that minor children have coverage under their parents’ policies. This becomes less clear the older the children get, and it becomes ambiguous when they return home after living on their own for some period of time. Parents and their adult children may be risking thousands of dollars in financial loss if they do not handle the insurance correctly.

The standard homeowner’s policy provides coverage for the person named on the policy’s information page, that person’s spouse if a resident of the household, residents of the household who are that person’s relatives, and a full-time student under age 24 who is a relative and who resided in the household prior to moving out for school. Therefore, the policy covers parents and minor children, and it covers college students while they’re away from home. However, it is questionable whether an adult child moving back in with her parents is a resident of the household. Even courts have had trouble setting a precise definition of residency. For example, suppose a woman and her son relocate to her hometown following a divorce and they move in with her parents while she looks for an apartment. Is she a resident of her parents’ household while she’s living with them? Does it depend on how hard she’s looking for a new place? What if she is looking but falls ill and is unable to actively search for a period of weeks? At what point does she become a resident and not merely a guest? There is no hard and fast rule. In situations like these, the best way to eliminate any doubts about coverage may be for her to buy a renter’s insurance policy.

Auto liability insurance, which insures against a person’s legal responsibility for injury or damage to others, has a few other wrinkles. The standard policy covers the person named on the information page, the resident spouse, and any family member for the use of any auto. The policy defines “family member” as a person related to the named insured person by blood, marriage or adoption and who is a resident of the household. Therefore, the woman in the previous example has coverage for the use of any vehicle if she is a resident of her parents’ household (other policy provisions eliminate coverage for certain vehicles.) However, even if she is not a resident, she has some coverage: The insurance covers any person while using a vehicle listed on the policy if she is using the vehicle with a reasonable belief that she has permission. If she is temporarily living with her parents and her father loans her his car to run to the store, she has coverage. However, she does not have coverage while driving a vehicle she owns if her father’s policy does not list it. Again, the solution here is for her to carry her own auto insurance; this makes moot the question of whether she is a resident of her parents’ household.

Insurance companies have designed policies to easily fit households with parents and minor children, but they did not have returning adult children in mind. Because these situations can be complex, it may be best to consult with a professional insurance agent to determine the right approach. The wrong decision can result in a nasty surprise when a claim occurs.

Do You Have Coverage If You Damage a Customer’s Property?

A plumbing contractor’s employee is soldering two lengths of pipe together when a fellow employee asks him to assist with another task for a moment. The first employee lays the soldering torch on a ceiling joist, forgetting that it is still hot. While he is away, the joist begins to smolder, then small licks of flame form and ignite combustible material in the ceiling. By the time someone notices, fire is consuming the ceiling. Firefighters’ efforts to extinguish the blaze cause water damage to portions of the building and walls near the fire’s starting point suffer smoke damage.

The building owner will most likely hold the contractor responsible for the cost of repairing the damage. In turn, the contractor will look to his general liability insurance policy to cover that cost. Will the insurance company pay for the repairs?

The Insurance Services Office’s Commercial General Liability Coverage Form states, “This insurance does not apply to…’property damage’ to…(t)hat particular part of real property on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the ‘property damage’ arises out of those operations…” What does this mean, and how does it apply to an incident like this one? What does the form mean by the phrase, “that particular part”? Several courts have weighed in on this question.

A Tennessee court in 1975 ruled against an electrical contractor whose employee, while installing circuit breakers in a switchboard, caused a short circuit that destroyed the entire switchboard. The court said that the employee was performing operations on the switchboard, not just the individual circuit, and therefore liability coverage did not apply. Similarly, a Massachusetts court ruled against a cleaning contractor in 1989. The contractor was cleaning the bottom of an underground oil storage tank when an explosion occurred, destroying the entire tank. The contractor argued that the insurance should cover all of the damage except that to the bottom of the tank, but the court ruled that the entire tank was “that particular part” on which the contractor was performing operations.

Conversely, a Minnesota court granted coverage for a contractor that had been hired to clear trees and brush from a construction site but that also cut down trees on an adjoining property. The court said that, while the liability policy would not cover damage to property the contractor had been hired to work on, it did cover damage to the property of a third party. A New York court ruled in 1974 that a liability policy covered damage that occurred after the contractor had completed operations.

The courts have not established firm rules about what constitutes “that particular part” of property on which a contractor is performing operations. Case law will vary from one state to another. Because of this, contractors should discuss the exposure with their insurance agents. To reduce the chances of an uninsured loss occurring, an agent may recommend the purchase of a builders risk or installation floater policy. These policies cover property that the contractor is installing on a construction site while it’s in storage, in transit, on the job site and during installation. They also usually cover property of others for which the contractor may be liable. Unlike the general liability policy, there are no standard versions of these policies, so contractors must review them carefully and ask their agents questions about anything that is unclear.

The law of averages suggests that most contractors will accidentally damage a customer’s property at some point. Now is the time to make sure that there will be no insurance surprises when it happens.

Protect Your Child from the Dangers of Electrical Outlets

When bringing a child into the home, parents take many safety precautions. Unfortunately, those precautions do not always ensure that the child will avoid harm. Electrocution may not happen often, but its effects can be deadly.  Household wiring and large and small appliances cause the majority of electrocutions in the U.S each year. In 1997 (which is the most current data available), the CPSC found that 86 percent of reported injuries involved children 1 to 4 years old. The most common foreign objects stuck into electrical outlets were keys and hairpins. There are several options you can implement to help protect your children against this preventable safety hazard.

Most parents know to install plastic outlet protectors for all the outlets within their child’s reach. But do they really protect as well as we assume? A 1997 Temple University study tested the effectiveness of the different types of plastic outlet protectors with 37 children ages 2 to 4 years. For the round, flat face style protector with two prongs, 47% of the 4-year-olds and 31 % of the 2-year-olds were able to remove this protector. Another oval style had a 3/16″ thick oval face with tapered sides. Again, 47% of the 4-year-olds but only 18% of the 2-year-olds could remove this type of protector. Yet another style with a 1/16″ thick face and lacking tapered sides could be removed by all of the 2- and 4-year-olds!

However, you do have other choices. Some manufacturers make a child tamper-resistant outlet, rather than a cover. They resemble regular outlets, but behind the face of the outlet are plastic shutters. The shutters remain closed until something is inserted into both vertical outlet holes at the same time, at which point the shutters open and the plug can be inserted. This design is based upon the premise that most children will not stick two objects in the same two vertical outlet holes at the same time. This type of outlet costs between $6.00 to $8.00 each compared to a typical electrical outlet receptacle that usually costs no more than $5.00 a piece.

Outlet face covers are another option for you to consider. These covers have faces that swivel or slide over the outlet holes, requiring you to push the cover away while inserting the plug for a secure fit. These covers range from $6.00 to $10.00 each. Both the tamper-resistant outlet and the face covers should be available at your local home improvement or electrical supply store. Whatever type of protection you choose, ensure that you take some of these simple steps to protect your children from this very real safety hazard.

Primary and Noncontributory: What Does It Mean?

Construction contracts often require a subcontractor’s general liability insurance policy to name the owner or general contractor as an additional insured on a “primary and noncontributory” basis. This seemingly simple requirement can cause a lot of difficulty and may hamper the sub’s ability to start the project. The International Risk Management Institute recommends that risk managers not include this requirement in contracts. Insurance agents can add wording to a certificate of insurance only if the insurance company approves it. Insurance companies tend to resist adding this language to their policies and certificates. Why are the words “primary and noncontributory” such a problem?

In liability insurance claims, when two policies cover the same loss, one usually applies on a primary basis and the other on an excess basis. This means that one will pay first (the primary policy), and the other will pay only if the primary policy either does not cover the loss at all or if the amount of insurance is not enough to pay for the entire loss. For example, if the primary policy has a limit of $1,000,000 each occurrence and the amount of the loss is $1,500,000, the primary will pay its limit of $1,000,000 and the other policy, which applies on an excess basis, pays the remaining $500,000.

If both the general contractor and the subcontractor have bought modern editions of the Insurance Services Office’s Commercial General Liability Coverage Form, the subcontractor’s policy is automatically primary. The form’s wording makes the insured’s coverage excess over any policy that has added the insured as an additional insured by endorsement. Therefore, the “primary” part of the requirement is a minor issue.

The “noncontributory” requirement is more of a problem. Most contracts do not define the term’s meaning, and most insurance policies and endorsements do not include it at all. The GC may believe it means that its policy will not pay even on excess basis; if the sub’s limit of insurance is not large enough to cover the loss, the GC may expect the sub to pay the remainder out of pocket.

The standard additional insured endorsement to a general liability policy covers the additional insured with respect to liability for injury or damage caused at least in part by the sub’s acts or omissions. It also covers liability for acts or omissions of those working for the sub. Coverage lasts as long as the sub has ongoing operations for the additional insured. It does not say anything about the additional insured’s coverage being noncontributory. This is the problem: It is not standard insurance industry practice to cover additional insureds on a noncontributory basis. Insurance companies are reluctant to change that, as they want the additional insured’s coverage to contribute toward paying for the loss. A GC has less incentive to prevent losses when it knows that its own insurance will not be needed.

A contractor who runs into this requirement should notify his insurance agent immediately and ask the insurance company to provide the coverage. If it won’t, he must notify the GC and negotiate alternative terms in order to avoid breaching the contract. The GC may agree to accept the standard endorsement with a promise not to reduce its coverage. He should also consider asking the agent to seek this coverage at the next policy renewal. Most importantly, he must understand what the contract requires and ask questions about provisions that are unclear. No one wants to find out after an insured loss that he must pay part of it with his own money.

Why Does My Auto Insurance Cost so Much?

It’s hard to have a conversation about auto insurance without at least one person complaining that their rates are too high. What most people don’t understand is that their rate is not some magical amount they are required to pay, but rather a precise calculation that takes into account personal and lifestyle attributes.

One of the biggest factors that determine insurance rates is the type and value of the vehicle being insured. Smaller, more conservative vehicles are much cheaper to insure when compared to convertibles and luxury SUVs. This is because sportier vehicles carry higher sticker prices and are more likely to be stolen.

Where the car is parked has a lot to do with insurance rates, as well. Insurance companies study the amount of vandalisms, thefts, and accidents in each neighborhood and adjust their premiums accordingly. In most cases, car owners who reside in more populated areas pay higher rates than those who live in rural areas.

A third factor that affects the cost of insurance is the amount of driving you do every day. Drivers with long commutes or who put a consistently high amount of miles on their car each year are more likely to be involved in an auto accident, so companies charge these drivers a higher rate. On the other hand, insurance companies discount the rates of drivers who only use their vehicle recreationally or on the weekends.

Personal information, such as your age, gender, driving record and marital status, has an effect on what premium you are charged. Younger drivers pay more than experienced ones, especially drivers under the age of 25, and statistically speaking, women are safer drivers than men, so they pay less for insurance. Married individuals are also less likely to be involved in a car accident, so their rates are lower than single drivers. Regardless of everything else, having an accident and citation-free driving record will keep rates low and affordable.

Fortunately, drivers who are unhappy with their current insurance costs can do something about it. First, you can begin by asking your provider what kinds of discounts are offered. There may be some new discounts that can be applied to reduce your rate, like going a certain amount of time without filing a claim, owning your home, etc. If not, then shop around to see if a comparable policy is cheaper elsewhere. Changing from one insurance company to another is usually easy and hassle-free.

When out shopping for a new car, review consumer reports for the vehicle’s reliability and find out where it ranks on the list of frequently stolen vehicles. Cars that are expected to maintain a good service record and utilize anti-theft features have a lower overall cost of ownership and are cheaper to insure.

Also, consider taking public transportation or carpooling with co-workers to get to and from work. This will keep miles off of your vehicle and take dollars off of your insurance premium.

Five Ways to Control Workers’ Comp Costs

Most businesses are required by law to provide workers’ compensation insurance. It protects employees, providing income and medical care if they’re injured on the job. It also protects employers; the liability portion provides coverage for lawsuits filed as a result of a work-related injury.

As an employer, the amount you pay for workers’ compensation coverage varies according to your industry and claim history. Workers’ compensation insurance for companies that engage in office-based work is generally much less expensive than insurance for industries like construction or trucking.

Regardless of your industry, there are proactive steps you can take to keep workers’ compensation costs under control. Here are some tips:

Thoroughly train new employees: Surveys show that nearly a third of workers’ compensation claims result from accidents involving newly hired employees. Take a look at your orientation program and see if you can improve overall safety by beefing up new employee training.

Make safety a top priority: The best way to keep costs down is to not incur claims in the first place. Create a safety culture throughout the company, and engage employees directly in the effort. For example, you could establish safety councils and solicit ideas from employees on how to create a safer workplace.

Pre-screen employees: Another preventive action you can take is to make sure you hire the right employees in the first place. Statistics show that workers who are substance abusers are far more likely to have an on-the-job accident. An investment in pre-employment drug screening can save a significant amount in claims down the road.

Manage claims proactively: When an employee is injured, make sure you keep tabs on the worker’s condition and plan for their return to work as quickly as possible. In some cases, injured employees can rejoin your workforce on light duty, which can reduce the amount of the claim.

Make sure employees are classified properly: There are hundreds of classification codes used to determine the appropriate level of workers’ compensation coverage. If employees are misclassified, you may not have the coverage you need, and misclassifications can result in fines.

Workers’ compensation is essential to protect your employees ― and your company. To sharpen your company’s competitive edge, it’s important to control costs. Take a fresh look at your company’s approach to safety, hiring, classification and claims management. You may find new ways to keep costs under control.

Market Value – How Much is My Home Actually Worth?

Homeowners always seem to have a ballpark estimate of their home’s worth, but when it comes down to the real value, they can be a little off target. People tend to view their home through rose-colored glasses as they calculate its value, remembering all of the tender moments that happened over the years. The open market, however, removes sentimental value from the formula and only assesses value based on features and characteristics.

In order to talk about how houses get rated, you must first understand what the term “market value” means. To real estate agents, it refers to the price a house can be bought and sold for within a practical time frame. This would be at a price that is considered fair by both the seller and buyer, and within a time frame ranging up to three months.

If you are interested in figuring out your home’s market value, you must concentrate on the types of things buyers look for when browsing around. Remember that the housing market can change in the blink of an eye and that the value of houses can vary drastically from one neighborhood to another. To establish a good starting point, take a look at the asking price of similar homes for sale in your area.

What to look for when doing a market value analysis of your home:

Location, Location, Location – What school district is the home located in? How desirable is the neighborhood? Is it near local parks, shopping centers, or public transportation?

Design and Overall Appeal – Is the layout of the home aesthetically pleasing? Does the home look nice or like a fixer-upper? Is there landscaping?

Quality of Construction – Does the house appear to be in good condition? Are there visible and obvious repairs?

Maintenance – Has the wiring and plumbing been maintained or updated? Does the home need new shingles or siding? Is there peeling or faded paint on the back porch?

Home Improvements – Is the back patio enclosed or has the bathroom recently been remodeled?

Distinguishing Features – Is there an in-ground pool for swimming or is the basement finished? Is there room in the backyard to plant a garden?

Another way real estate agents measure market value is by looking at the home’s price per square foot. This figure is calculated by taking the amount of livable square feet in the home and dividing it into the home’s most current appraised value, which can usually be found in your property tax paperwork. Look in the newspaper to see what similar houses in your neighborhood are selling for and determine their price per square foot. To prime your house to sell, you will want to price your house at a comparable rate.

Finally, you must take into consideration the current condition of the housing market. Thousands of dollars can be gained or lost depending on real estate trends. Changes in interest rates, the local economy, and even national issues have an effect each home’s market value. A booming economy improves interest rates and leads to higher home values, and on the other hand, in times of recession, home values sink below what owners think is fair. By completing a market value assessment on your home each year, you will have a better idea whether or not your home is properly insured. Be proactive, as an undersized policy will not offer much protection if something terrible would happen.