Category: Liability

A few years ago, in a relatively small town in a quiet (not known for big lawsuits) area of the country, an Ob/Gyn (Obstetrics and Gynecology) doctor opened his new practice.  In helping the community while beginning to raise his family, he earned $300,000 in his second year.  Only seven years later, his malpractice insurance cost $300,000-and he had not reported a single claim!

Jury awards for medical malpractice in the U.S. have reached dizzying heights, prompting young doctors to flee states like Florida, New Jersey, Pennsylvania and others. For example, a March 20, 2003 article in the Pittsburgh Tribune-Review reported that the number of practicing doctors in the state, younger than 35, had fallen from 12.4% in 1989 to a mere 4.7% in 2000.  Other states report similar rates of defection.

Two other adverse results are astronomical insurance premiums for malpractice insurance, especially for thoracic and neurosurgeons, anesthesiologists and other specialists, and equally skyrocketing costs for healthcare (malpractice premiums alone can’t cover the claims).  Now the gloves are off, and several states have introduced legislation to cap pain-and-suffering awards at $250,000, though no one seems to be able to say how that figure is calculated.  There are mountains of data, of course, to support arguments for outright caps, no caps, graduated award tables and other approaches to the issue.  In many cases, it’s the same data.

How much is pain worth?  A 20 year old, maimed or disfigured for life through a doctor’s error, who gets a $250,000 award and lives to age 77 (life insurance table), has been awarded $12. a day or $8. a day after the attorney took 33%.

How much was Jesica Santillan worth?  Jesica died in the esteemed Duke University Medical Center in February 2003, after doctors transplanted lungs and a heart that were an obvious mismatch.  You might argue that she was an illegal immigrant whose parents smuggled her into the country to get medical care not available to her in Mexico.  But doctors could easily have made the same mistake to a Rhodes Scholar or Nobel Laureate.  Some argue that a person is a person, that all lives have the same value.  The passion on every side of the issue-and there are more than two sides-is sincere.

California passed MICRA, the Medical Injury Compensation Reform Act, in 1975, setting a $250,000 cap on non-economic damages.  $250,000 1975 dollars are worth $84,000 today.  Adjusted for inflation, the MICRA “cap” should be $897,000 today.

Another critical element to the malpractice mosaic is the fee structure attorneys enjoy.  It’s an element under siege.  Should an attorney get a third or half of a jury award?  There may not be an all-purpose answer to the question.  Litigating a complex medical claim can be very time-consuming for attorneys, paralegals, and the experts hired to provide expert testimony.  Obviously, all the money in that fee doesn’t wind up in one lawyer’s pocket.  Defense is equally expensive, and those costs are borne by the malpractice carrier.  Lawyers who file frivolous suits cloud the picture even further.

Proposals abound to deal fairly with this complicated aspect of our culture.  Some advance sliding scale fees for attorneys; some propose different caps for different injuries.  New ideas appear almost daily.  But “local” climates prevail, as they have in other instances.  For example, you might suffer a malpractice injury in a Minnesota hospital, but you’re allowed to sue in your home state of Texas, which may be a friendlier jurisdiction.

Answers are neither fast nor easy, but with the problem out in the open in so many states, fair, rational solutions that reach across state lines and political ideologies may at least be on the horizon.

It seems as though virtually anything created can be patented, copyrighted, trademarked or otherwise protected.  Oddly enough, even with patent protection there is danger. It is easy to believe that if you hold a patent, copyright or trademark you cannot possibly infringe on someone else’s intellectual property – but that’s not true. George Harrison certainly had a copyright on his song “My Sweet Lord” but that didn’t prevent highly publicized and successful litigation against him due to its similarity to the old Shirelle’s hit “He’s So Fine” in the 1970’s.

With an average cost of $1.2 million to litigate, patent infringement trials weigh in as one of the most expensive types of litigation in the US today.  What was once the realm of the individual like Ben Franklin or Thomas Edison, or the very nearly individual (think Wright Brothers), has now become big business.  IBM, which annually tops the list of companies applying for and receiving patents, has received over 22,000 patents from 1993 to 2002, with patents accounting for about $10 billion in royalties during that ten year period according to the company’s website.  Complicating matters is the relatively recent innovation in its own right of the “Business Method Patent.”   Examples of these controversial patents are Amazon’s Internet shopping cart, or the “reverse auction” process that Priceline created and patented.

Contrary to popular belief, however, intellectual property is not the patent or copyright that one applies for, but rather the idea behind it.  The registration process, be it copyright, patent, or other method, is merely a form of evidence or proof of the origin of the idea, and its timeline.   The piece of paper that one might receive acknowledging a copyright is merely a statement that the Office of Copyrights has not received anything else prior to the submission of the material that resembles it enough to call into question the authenticity of the work.   Conceivably, one may apply for and receive a copyright or patent for a piece of work and yet be sued.  But where’s the coverage you say?  Good question.  The answer is – it depends.

Take the Recording Industry Association of America’s litigation against numerous individuals in the summer of 2003.   Would your homeowners’ policy apply if you were sued for negligent supervision of your teenager leading to the illegal uploading of music to the Internet?  The answer is probably “no” because there is no bodily injury or property damage (theft of intellectual property is unlikely to be perceived as a form of property damage), and the policy is not designed to respond to pure financial loss claims.   So in a personal sense, you are probably out of luck.

For businesses the news is not as grim.  In a business scenario, the CGL has often been called upon for coverage in patent, copyright and trademark infringement cases.   If there is coverage to be found, it is the Advertising Injury portion of the policy but the catch is that the offense must then occur in the course of advertising one’s product, and not, for example, in the delivery of the product.  So although a computer-consulting firm may infringe on another firm’s copyright or patent (source code is patentable), it is probably not covered under the CGL because the offense did not occur while advertising the firm’s services.

The good news is that there are an increasing number of products that are available for intellectual property coverage in the course of business operations.   Patent Infringement Liability Insurance is available from a select few niche insurance markets, though premiums are usually high, and coinsurance and retentions can be steep too.  Professional Liability for technology consultants and other companies with an intellectual property exposure can often be endorsed to cover copyright or trademark infringement, though usually not patents.  Advertising agencies or media businesses may find intellectual property coverage available for their operations as well.  If you are concerned about your intellectual property exposure, you need to talk to your agent to see what coverages are available.  Another good idea would be to speak to a lawyer who is well-versed in intellectual property law to learn what steps you should be taking to protect your intellectual property and minimize the risk of infringement.

Depending on whom you talk to, the Sarbanes-Oxley Act of 2002 was either a panacea to cure the ailing stock market and restore trust in Corporate America or a shot to the bow of America’s capitalist vision.  Just what is Sarbanes-Oxley and whom does it affect?

Sarbanes-Oxley is a complex patchwork of legislative reform of the American system of corporate governance, legal counsel and financial oversight of publicly traded companies.

Among the key implications of the Act:

—      CEOs and CFOs must certify the financial reports of their companies and face stiffer penalties for knowing or willful violations, including personal liability for noncompliance.

—      Added disclosures are required on the company financials.

—      The SEC must adopt new rules requiring that independent audit committees be created that are authorized to engage advisors.

—      New criminal and civil penalties for directors and officers for, among other things, destroying or changing records and knowingly executing a scheme to defraud investors.

—      Takes away some of the self-policing capability of the accounting industry by creating a five member Public Company Accounting Oversight Board, which is overseen by the Securities Exchange Commission.

—      Similar to the effect on the accounting profession, the legal profession is hit with new regulations, some of which run counter to the self-policing activities of the state bars and presents lawyers with the conundrum of trying to comply with the law while retaining a main cornerstone of the legal profession – attorney client privilege.

 

Some say Sarbanes-Oxley has had a chilling effect on the American Dream.  Where the rallying cry of the ’90’s was “Go public!,” Sarbanes-Oxley might have turned that into “Go private!” for the future, particularly for the small public companies for whom the new regulations create a cash drain.   But, despite the lure of going private, some insurance industry and legal experts theorize that Sarbanes-Oxley’s effect on public company accounting will put a new onus on private companies as well.  They recommend that private companies follow some of the same rules on a voluntary basis to avoid potential common law negligence.

Sarbanes-Oxley’s exacting standards have had a dramatic impact on the Directors and Officers Insurance market, which was already reeling from the effects of corporate scandals, and the shrinking of capital in the reinsurance marketplace that was sharpened by the effects of 9/11.  Rates have gone up dramatically and capacity has shrunk, leaving some companies underinsured when they need it most.

Accountants, particularly CPAs that do public audit work, have felt similar effects.  Fewer companies today are willing to write Accountants Professional Liability for such firms.  The same goes for law firms that specialize in securities law.

Perhaps the most disconcerting aspects of Sarbanes-Oxley, at least for corporate officers, are the punitive provisions for knowingly or willfully committing “white-collar” crimes.   The problem with discerning the effects of these provisions is the difficulty in assessing culpability.   It is possible that fingers might point at parties, who should have known what was going on during their watch, but did not “knowingly” or “willfully” perpetrate a fraud.  The line between benign incompetence and intentional acts might be blurry at times, but directors and officers still face the risk of being caught in the maelstrom of public outrage.

The best advice that anyone can be given, who is entertaining the notion of becoming a board member of a public corporation, is think twice.  Make sure you know that the company has adequate D & O Insurance with a reputable carrier, and the coverage provides defense against fraud allegations until guilt is proven (in many cases the insurer will settle out of court before guilt becomes a factor in coverage determination).  Moreover, make sure that the limits are adequate for the size of the company.  Although there is no one rule of thumb for adequate limits, most public companies should have at least $25 million in coverage to afford adequate protection. The Microsoft’s and IBM’s of the world should obviously carry much more.

Private companies can purchase D & O Insurance too, often at more reasonable prices, and with a host of other pertinent coverages such as Employment Practices Liability, Kidnap & Ransom, Fiduciary Liability and sometimes-even Professional Liability comprised under one insurance program.   Whether you purchase on a package basis or a la carte, if you have not looked into D & O Insurance before, now may be the right time.

Navigating the winding straits of various state workers’ compensation systems can be difficult to do for companies traversing state lines, but what if the company employs people at sea?  If your business employs dockworkers or seamen of any sort, there are two acts you should be aware of.

The Jones Act (1920) – The Jones Act is a set of cabotage, or “admiralty” laws.  Cabotage defines who has the right to engage in air, rail, truck or waterborne transportation in a country and its coastal waters.  The Jones Act focuses on the latter.

Modeled in part after the Federal Employers Liability Act, which provides benefits to rail workers, the Jones Act governs the liability of vessel operators and marine employers for the work-related injury or death of an employee.  The Jones act provides heightened legal protections to seamen because of their exposure to the perils of the sea but does not define the term “seamen.”  Federal court decisions have narrowed the definition to exclude land-based workers, though.  Workers on offshore oil rigs, ships, barges, riverboat casinos, tug boats, shrimp boats, fishing boats, trawlers, tankers, crew boats, ferries and water taxis are among those who are eligible for Jones Act relief if injured.

The Longshore and Harbor Workers’ Compensation Act (1927), a companion of sorts to the Jones Act, provides scheduled pay for injury or death, to a broad range of land-based maritime workers, excluding those covered under The Jones Act.  Usually, employees who load or unload vessels, build or repair ships, and stevedores are among those eligible for LHWCA status.  Unlike The Jones Act, which is not administered by a federal or state agency, The Department of Labor administers LHWCA.

Although differentiating among employees eligible for consideration under the two acts seems simple, much litigation has ensued over the years since the two acts came into being, because “the myriad circumstances in which men go upon the water confront courts not with discrete classes of maritime employees, but rather with a spectrum ranging from the blue-water seamen to the land-based longshoreman.” Brown v. ITT Rayonier, Inc., 497 F.2d 234, 236 (CA5 1974)

Broad P & I (Protection and Indemnity) policies, Maritime Employers Liability and Maritime Workers’ Compensation products are available to cover Jones Act or LHWCA liability.  Some products combine coverage for state workers’ compensation acts and Jones Act or LHWCA exposures.  There are also policies available for employers with no “known” Jones Act exposure.

Although coverage for the liability imposed by employers under these acts may be more expensive than state workers’ compensation coverage, there may be penalties for non-compliance.  LHWCA, for example, imposes a fine of up to $10,000 and/or imprisonment of up to a year.  Talk to your agent to discuss your exposures and to see what options are available.

“Managing Diversity” is a critical human resources function for organizations large and small.  All too often, though, executives and managers lose sight of what diversity means from a legal and moral perspective, and the message then gets lost in the translation when it comes to the rank and file employee.

In 1997 the Department of the Interior identified diversity for its workforce as a crucial issue and provided the following definition of diversity for its own management purposes:

“The term ‘diversity’ is used broadly to refer to many demographic variables, including, but not limited to, racial, religious, color, gender, national origin, disability, sexual orientation, age, education, geographic origin, and skill characteristics…  Managing diversity is a comprehensive process for developing a workplace environment that is productive for all employees… The term ‘diversity’ is also used narrowly in employment recruiting and retention efforts to refer to race/national origin, gender, or disability…”

The EEOC (US Equal Employment Opportunity Commission) is the federal watchdog that oversees compliance for legislation such as Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, religion, sex and national origin.  Discrimination complaints filed with the EEOC have been on the upswing over the past four years, going from 77,444 in 1999 up to 84,442 complaints in 2002.  Small businesses with as few as fifteen employees are subject to Title VII, but determining who qualifies as an employee for the purposes of Title VII and other federal legislation is a tricky proposition and should be determined through consultation with an attorney or by researching the legislation directly.

Title VII is not the only federal law that applies to employment discrimination cases.    For example, the Immigration Reform and Control Act of 1986, the law that created the I-9 requirements for employers, also furnishes protection against discrimination because of national origin or U.S. citizenship. It applies to any employer with at least four (4) employees. The Civil Rights Act of 1866 (42 U.S.C. 1981) forbids employment discrimination because of race or color and applies to any employer, even if there is only one employee.

State laws such as the Texas Commission on Human Rights Act of 1983 (Texas Labor Code, Chapter 21) also apply to employment matters, so it is important to be aware of the complex patchwork of laws that may or may not apply to any employment situation.

The national jury-award median for employment-practice liability cases, which includes discrimination and retaliation claims, rose 44% in one year – from $151,000 in 1999 to $218,000 in 2000 – according to Jury Verdict Research’s ® report, Employment Practice Liability: Jury Award Trends and Statistics – 2001 Edition.

Though these facts and statistics point to the growing need for employers of all sizes to carry Employment Practices Liability Insurance (EPLI), the news is not entirely negative.   According to Risk and Insurance (online at www.riskandinsurance.com) there are more than 70 insurers providing EPLI coverage and companies with fewer than 50 employees can expect to pay as little as $5,000 to $10,000 annually for the coverage.   Also, many EPLI policies come with pre-arranged legal services such as hot lines for attorneys versed in employment practices law, often at no additional charge.  Contact us to explore your EPLI options and to find out more about managing diversity in your workplace.

Responding to a number of scandals involving fraud at publicly owned companies, the U.S. Congress in 2002 enacted a new law intended to make undetected fraud less likely to occur.  The law applies only to public companies, mainly those whose securities are registered in accordance with the Securities Exchange Act.  Even so, experts predict that it will have an enormous impact on private companies as well.

Among the changes many businesses, public and private, will undergo are creating mechanisms for fraud whistle blowing by employees, adapting to a different relationship with their external auditors, upgrading internal financial controls, becoming much more aggressive at preventing fraud, and improving audit committee accountability.  This magnitude of change is why the Sarbanes-Oxley Act has been variously described as “a paradigm shift” in how companies do business and “a whole new way of thinking about corporate governance.”

Some of the most notable of the act’s requirements include:

• Management must certify the accuracy of their companies’ financial statements.
• Management must attest to the effectiveness of their internal financial controls.
• Outside auditors must attest to the accuracy of management reports.
• The internal audit committee must have independence and must include financial experts.
• Steps must be taken to improve fraud detection and prevention (e.g., an employee hot line for reporting fraud, training about fraud, a written corporate anti-fraud policy).
• Auditors must proactively look for material misstatements in financial reports, evaluate opportunities to commit fraud, and maintain a skeptical attitude to the company’s reports.

 

Some experts predict that more private companies will fall under new rules similar to or the same as Sarbanes-Oxley as states enact new laws and apply them to private companies doing business in the state.

Many banks and insurance companies are demanding a higher standard of action to prevent fraud and are closely examining a borrower or insured’s fraud prevention efforts.  Private companies that deal regularly with banks and insurance companies, and those that are potential acquisition targets, might find that they must comply with new rules even though they are not required to do so by law.  While previously a banker’s only concern was whether they would get paid, now they are more likely to be concerned with whether management has done enough to avoid the risk of financial mismanagement.

Insurers, too, are engaging in increased oversight.  Prices are going up on coverage in every area of financial fraud and mismanagement risk. Underwriters are reviewing private companies’ financial statements much more carefully and sometimes require interviews to obtain additional explanations.

Customers, clients, professional services providers, and business partners of privately held companies want to avoid the spotlight of scandal and may insist on adherence to the principles of Sarbanes-Oxley.

Private company directors are also likely to push for stricter fraud-prevention efforts in light of a recent federal court decision that will hold them responsible for fiscal misconduct by company management under a standard of due care and loyalty just as directors of public companies are.  In Pereira v. Cogan, et al. (294 B.R. 449, S.D.N.Y. 2003) the judge ruled that directors at bankrupt Trace International Holdings Inc. failed in their responsibilities by allowing Marshall Cogan, Trace’s chairman and controlling shareholder, to drain company funds by drawing excessive compensation, loans, and dividends.  Significantly, the Trace directors were found to have violated their fiduciary duties irrespective of whether Mr. Cogan’s self-dealing actions were the result of, or enabled by, board action.

The court noted that, during the period in question, the Trace board held no meetings and that, when it acted, it did so by written consent.  The directors argued that they should not be liable, since they had not taken any action nor played any part in the improper transactions. But the court rejected this idea, noting that directors have a duty to be informed of significant corporate expenditures and to disapprove of those that are not in the best interest of the corporation or its shareholders.

It will be years before the full effects of this new climate of corporate financial accountability will be realized.  For many private companies, as for public ones, the likelihood is that there will be little choice but to change some of their practices and to spend more to prevent fraud and other financial mismanagement.

If your company manufactures any kind of product, from lemonade to engines, computers to clothing, it could easily find itself on the wrong side of a lawsuit by a plaintiff claiming your product(s) caused some kind of injury or damage. In today’s litigious society, it is not even necessary for you to be the manufacturer of the product. Sellers are often sued alongside the manufacturers.

It’s only natural that people want to be safe from injury and property damage whether from food poisoning, getting into an auto accident due to tire failure, or having the foundation of their home crack, but how do protect your company from liability? The answer may be with product liability insurance.

Most liability claims are covered as part of your company’s commercial general liability (CGL) policy. However, products that are particularly likely to lead to liability may be handled separately. As part of a sound risk management program, you should know well in advance how your current coverage would respond to such claims.

The CGL policy covers any bodily injury and property damage occurring away from your business premises that happens as a result of your product or completed work. If a product is consumed on the same premises, such as food served in a restaurant, the policy provides coverage once the insured has relinquished possession of the product whether the injury or damage occurs on or away from the premises.

The standard policy excludes damage to the product when the damage was caused by some part of the product itself or faulty workmanship in its manufacturing. For example, one small part in a complex, expensive piece of equipment may fail and cause tremendous damage to that equipment. If the part that fails was purchased from an independent subcontractor, the insurer of the manufacturer of that part would cover damage to the equipment. By contrast, if the manufacturer of the expensive equipment itself produced the piece that failed, the damage is not insured under the CGL policy.

Product liability exposure lasts as long as the product is in use. Someone may be injured or damage may result from use of the product years after it was manufactured and the product may no longer be in production. Product liability insurance should be kept in force as long as the products are being used and could cause injury or damage. Partnerships and sole proprietorships are especially vulnerable. These business owners cannot evade personal liability exposure by taking cover behind a corporate shield; thus, they need to take particular care to keep product liability coverage continuously in force. Because of the continued liability exposure, insurers require insured’s to provide detailed information about discontinued products.

The CGL provides coverage for product liability that may arise when products are sold internationally, but only if liability is determined by a lawsuit in the United States, Puerto Rico, or Canada. Since product liability lawsuits are often filed in the country where the alleged injury or damage occurred, any business whose products are sold overseas will need a foreign coverage endorsement added to its CGL policy.

Another type of coverage not provided by the CGL policy is the expense of a product recall, though this can be expensive and severely damaging to a company’s reputation. Separate product withdrawal expense insurance may be available depending on the particulars of your business and its product.

The basic premise of most product liability lawsuits is that the product manufacturer or vendor failed to take appropriate steps to insure the product was safe and sound. It is impossible to eliminate all hazards in connection with many products. No matter what you do, someone could fall off a ladder or burn themselves with a hair dryer, and so forth. To show that you did everything possible to prevent such injuries, it is critically important to communicate with buyers and users of the product about such hazards. The thing to remember is that if there is a lawsuit, your best defense is to prove you took all reasonable measures to assure no one would be injured.