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Naturally Occurring Substances Can Expose Construction Firms to Environmental Liability

What do silica, mercury, arsenic, pyrite, and asbestos have in common? They all are recognized as toxic substances, or contain toxic substances as defined by the U.S. Environmental Protection Agency. Their very presence on a construction site presents a serious exposure for a construction contractor.

There are potentially hazardous consequences when these toxic substances are uncovered during construction:

·   Mercury – is a human neurotoxin; meaning it acts specifically on neurons or nerve cells. It is most hazardous to developing fetuses and small children. Eating mercury-contaminated fish is the way most humans become exposed. When mercury enters water, certain conditions can cause it to convert to methyl mercury. Methyl mercury is ingested by aquatic creatures and becomes more concentrated as it moves along the food chain. Humans receive the highest forms of concentration because they are at the end of this food chain.

·   Pyrite – has a high sulfur content, which if exposed to oxygen or water will form sulfuric acid. When a construction project releases significant amounts of pyrite into the surrounding area, it can result in high amounts of acid drainage, which enters surrounding bodies of water. The acid drainage contaminates streams and water wells of area residents.

·   Asbestos – has little or no impact on the environment and human health if left undisturbed. However, when construction releases natural asbestos fibers into the atmosphere, it exposes workers and residents of the surrounding area to respiratory hazards. Asbestos is known to cause cancer of the lungs and of the lining of internal organs.

·   Silica – is most dangerous in the crystalline form known as silicon dioxide. People who have been exposed to silica and contract silica-related respiratory conditions usually have inhaled tridymite or crystobalite contained in the dust released during construction. Although all forms of crystalline silica are different in chemical structure, all can eventually be deadly.

·   Arsenic – has been linked to cancer of the bladder, lungs, skin, kidney, nasal passages, liver, and prostate. Non-cancer effects can include thickening and discoloration of the skin, stomach pain, nausea, vomiting, diarrhea, numbness in hands and feet, partial paralysis, and blindness.

What specific implications does the presence of these toxic substances have on environmental liability insurance?  Many of these policies contain wording that excludes these naturally occurring substances from the coverage. In Contractor’s Pollution Liability Insurance (CPL), there are several ways exposure to naturally occurring hazards may be excluded. For example, the insurer could include a specific exclusion for naturally occurring substances in the exclusions section of the policy. No coverage would apply to claims based upon any naturally occurring substances in their unaltered form, or in an altered form due to naturally occurring processes.

A second way to exclude these substances from coverage is to exclude them by definition. In the policy’s definition of covered pollution conditions, the definition does not include naturally occurring substances. Pollution conditions are defined as the emission, discharge, dispersal, release or escape of pollutants, which are not naturally occurring. This negates coverage for these substances.

Does this mean you shouldn’t purchase a CPL policy? The answer to that question would be “no.” There are a number of different policy forms. Talk to your insurance agent to get the one that is best suited to your needs. 

Save Money by Avoiding These Costly Insurance Mistakes

When it comes to purchasing insurance, fear is an important motivator. We are justified in our worries about protecting assets such as homes and automobiles, and we buy insurance to protect our financial integrity. Despite our best efforts, sometimes our insurance does not offer full financial protection. This is not necessarily because there is a problem with the insurance policy; it can be a result of human failure. When purchasing an insurance policy, many people fail to look at the true level of coverage that is necessary to restore assets to their pre-disaster conditions.

Below are five common insurance mistakes to avoid at all costs:

*Trying to do it all on your own – Shopping for insurance is complicated, and it is best to seek professional advice. While it is fine to use the Internet to educate yourself, you should ultimately work with an independent agent who can offer multiple options for your consideration. An agent will help you untangle the complex issues involved in purchasing the proper amount of coverage to meet your needs.

*Buying into the hype – If it sounds too good to be true, it probably is. Where insurance is concerned, you often get what you pay for. A company that promises large discounts is most likely offering less coverage.

*Slicing it too thin– In a difficult economy, many people try to cut their living expenses to the bone. While it may be prudent to cut out some of the “extras” we enjoy such as eating out and going to the movies, reducing an insurance policy is risky. If and when disaster strikes, you’ll be glad you didn’t cut back on insurance premiums, which can result in thousands of dollars of uncovered damages.

*Neglecting regular protection reviews – Consider how much your life can change in a short amount of time. For instance, has the value of your home gone up or down in the last few years? Has a new car been purchased or has a teenager just gotten their driver’s license? Has an adult child finished their higher education? These are just a few of the changes that can cause either an overlap or gap in your insurance protection.

*Restricting your options – There are quite a few insurance companies that advertise a “one size fits all” approach to insurance. In some cases, these companies do not have your best interests at heart. It is best to consider multiple options, rather than limiting yourself to one choice.

Is Your Cyber-Policy Really Covering Your Technology-Related Exposures?

As businesses become increasingly reliant on technology to store sensitive information, the incidences of security breaches are becoming more prevalent. Each security breach increases the risk that a lawsuit or regulatory action could financially ruin a company and permanently damage its reputation. The situation is so bad, that some retailers and financial institutions targeted by litigation and regulatory actions are trying to hold their technology vendors accountable so they can transfer some of the fallout.

Many companies find themselves financial victims because they don’t buy insurance that addresses the many exposures related to security breaches. In some instances, a breach can trigger the need for a number of coverages, including crime, errors and omissions, employment practices liability, general liability, property and directors and officers liability. The so-called “cyber” policies address only one aspect of the exposure, the theft of information, money and identities through the Internet. That’s because these are major problems that are on the rise. According to Privacy Rights Clearinghouse, since February 2005, there have been more than 260 major security breaches involving nearly 100 million personal records. But if a company has only this basic coverage, they may not be prepared if disaster strikes. They should consider a more company-wide approach that includes insurance coverage for all possible exposures associated with a breach.

At the very least, your cyber policy should provide coverage in the following general risk areas:

·   Defense Coverage – Some policies limit the insurer’s duty to defend to actual lawsuits. That means that the insurer isn’t required to defend the insured against a claim, which may or may not result in a lawsuit. Others extend the duty to defend to all claims. You should look for the provision to defend against all claims in a cyber policy. You also need to review the policy in terms of who has the right to choose the attorney who will defend the claim. Many insurers can provide a choice of counsel provision that allows the company to make that choice. Talk to your insurer about having this provision incorporated into your policy.

·   Business-to-Business Coverage vs. Business-to-Consumer Coverage – If you want coverage for either or both of these risks, you have to make this known to your insurer. You need to be sure that the various exclusions and/or conditions necessary to minimize gaps in either coverage are present in your policy. These include electric/mechanical breakdown exclusion; breach of security exclusion; bodily injury/property damage exclusion; and employee malicious conduct exclusion.

·   Intellectual Property Infringement Coverage – All cyber insurance policies provide some level of intellectual property infringement coverage. However, some policies offer less coverage than others. Some even exclude coverage for software copyright infringement. Review the policy before you purchase to understand how much protection you have in this area. Most insurers are willing to insure software copyright infringement risk for an additional premium.

Remember, cyber insurance is like health insurance, you should customize your coverage to suit your company’s needs. Your best defense is to talk with your insurance agent to develop a plan that is right for you.

Five Things You Should Know about Your Condo Association’s Insurance

A condominium unit-owner usually has her own insurance policy that covers her for loss of her personal belongings, parts of the building that the condominium agreement makes her responsible for insuring, the additional cost of living elsewhere after a fire damages her unit, and her legal liability for injuries or damages suffered by others. In turn, the condominium association has its own policy, which may cause some unit-owners to wonder why they have to buy separate insurance. Doesn’t the association’s insurance cover the same things that her policy does? Depending on the property at issue, the answer is maybe yes and maybe no. Insurance companies designed the two types of policies to complement each other in some cases and to overlap in others. Here are five things unit-owners should know about their associations’ insurance.

The association’s policy covers the building. Depending on the wording in the contract between the association and the unit-owner, the word “building” may mean several different things. If the contract requires the association to insure them, “building” can include fixtures, improvements and alterations that are part of the building and that are within a unit. For example, if a unit-owner installs new track lighting or an attached island in the kitchen, the association’s insurance would cover the cost of repairing or replacing them after a loss. Also if the contract requires, the association’s insurance will cover various appliances such as refrigerators, stoves and dishwashers.

The association’s policy covers personal property “owned indivisibly by all unit-owners.” Furniture in the building’s lobby, hand carts and other moving devices, and exercise equipment in an exercise room available to all residents are examples of the types of property that the association’s policy insures.

The association’s policy does not cover the unit-owner’s personal property. A unit-owner must buy her own insurance to cover her furniture, electronics, clothing and other belongings. Assume, for example, that the condominium contract requires the association to insure appliances. If fire damages a unit-owner’s space, the association’s insurance will cover the refrigerator but not the sofa. The unit-owner’s policy will cover the sofa. The association’s policy also does not cover an individual unit-owner’s legal liability for injuries or damages suffered by others. The unit-owner needs her own insurance to provide for her legal defense and to pay any judgments.

It is possible that both policies may apply to the same item of property. In the above example, both the association’s and unit-owner’s policies may cover the refrigerator. In that situation, the association’s policy will apply first; if it does not completely pay for the repair or replacement, the unit-owner’s policy will cover the balance. For example, if the cost of replacing the refrigerator is $5,000, and for some reason the association’s policy covers only $4,000, the unit-owner’s policy will pay the other $1,000 (the example doesn’t include deductibles that may apply.)

The association’s insurance company will not try to get its money back from a unit-owner. Suppose a unit-owner left a candle burning overnight and the unwatched candle caused a fire that damaged part of the building. Many types of insurance policies would allow the insurance company to pay its customer for the damage, then try to recover its payment from the person who caused the damage. However, a condominium association policy specifically states that the company waives its right to recover from a unit-owner. It still has the right to seek recovery from a person who is not a unit-owner and is responsible for the damage.

While comprehensive, the association’s policy is no substitute for a unit-owner’s own insurance. Unit-owners should work with professional insurance agents to ensure that they have the proper coverage.

More Workers’ Compensation Claims Made As the Result of Work-Related Traffic Accidents

According to the Network of Employers for Traffic Safety, both on- and off-the-job motor vehicle crashes cost employers $60 billion annually from 1998 through 2000. The problem is so widespread, that in a recent study, the National Council on Compensation Insurance Inc (NCCI) noted that traffic accidents are the leading cause of accidental deaths in the United States. The study also said that workers’ compensation claims resulting from motor vehicle accidents are more severe than the average claim. Although they make up approximately 2 percent of all claims, they account for more than 5.5 percent of all losses because they cover a disproportionate share of the most severe claim types.

While workers’ compensation claims from motor vehicle accidents are growing, their frequency is declining but at a slower pace than for workers’ compensation claims in general. There are some other important characteristics about these claims that the NCCI noted in its study:

·   They almost always involve time lost from work.

·   Neck injuries are the most frequent diagnoses in these claims.

·   The average duration for a motor vehicle claim is 70 percent longer than for other types of claims.

·   They are three times as likely to involve a claimant attorney as compared to other types of claims.

The leading cause of these claims is a traffic accident that happened because the driver became distracted. The study revealed that almost 80 percent of the crashes and 65 percent of the near crashes resulted from the driver becoming distracted within three seconds of the event. The chief causes of the distraction were drowsiness and cell phone use.

The researchers had some specific suggestions regarding the steps employers can take to reduce the frequency and severity of these claims:

·  Encourage your employees to use seat belts – Failure to use seat belts cost employers roughly $2.1 billion yearly from work-related crashes between 1998-2000.

·  Be sure your employees never drive under the influence of alcohol – During 1998-2000, work-related crashes that resulted from drivers being intoxicated cost employers $3.1 billion annually.

·  Encourage employees to take defensive driving courses – These courses teach drivers how to react during an emergency so as to lessen the severity of the accident or avoid it all together.

·  Provide internal driver’s education courses – Teach employees good driving practices like pre-planning the trip route, realistically estimating how long the trip will take, being sure the vehicle is in good condition before hitting the road, and informing colleagues about travel plans.

Insurance Advice for after the Storm

Severe weather can come in many shapes and sizes.  It may take the form of heavy rain or snow, strong winds, thunder and lightning, and/or flooding.   When it comes to protecting your home and auto, you must prepare for the worst.  If damaging weather does come your way, here are some suggestions on what to do when the storm has passed:

1.   Contact your agent or insurance company as soon as possible to arrange a visit from an adjuster.

2.   Take photographs of any damage before doing repairs to your home.  Also, make an itemized list of all damage sustained during the storm and its aftermath.

3.   Protect your home from further damage by making only temporary repairs until your insurance company advises you further. Save all receipts for materials purchased for repairs.

4. Exercise caution when beginning repairs and clean up. Be careful with power tools such as chainsaws, and use proper safety equipment like safety helmets and/or glasses.

5.   Do not have permanent repairs made until your insurance company has inspected the property and you have reached an agreement on the repair costs.

6.   If necessary, rent temporary shelter. If your home is uninhabitable, most policies pay additional living expenses while it is being repaired. Before renting temporary shelter, check with your insurance company or agent to determine what expenses will be reimbursed.

7.   Unless you have purchased extra coverage, food lost in a power outage is most likely not covered. Consider buying an endorsement to cover future food losses.

8. Damages to appliances from a power surge are typically covered; however some electronic components may not be. Check with your agent to see what your policy covers.

9.   Most damage to your home or surrounding structures from fallen trees is covered. Check with your agent or company before calling a tree removal service; those costs may be covered, too.

10.   Damage to your vehicles from fallen trees or debris may be covered by your auto policy. Check with your agent.

Federal Rules Governing Civil Litigation Require Businesses to Keep Better Tabs on e-Documents

New rules, which took effect on December 1, 2006, require U.S. companies to keep better track of their employees’ e-mails, instant messages and other electronic documents in the event the companies are sued. These new rules are part of amendments to federal guidelines governing civil litigation and were approved by the Supreme Court in April 2006 after a five-year review.

Under the new rules, a company that is party to federal litigation must produce electronically stored information as part of discovery. This is the process by which both sides share evidence before a trial. Federal and state courts have already been requiring such evidence in individual cases. The new rules now make the production of such evidence mandatory for companies involved in federal lawsuits. Furthermore, any information technology employee who copies over a backup computer tape once a lawsuit has been filed could be accused of committing “virtual shredding.” Companies are still permitted to purge databases if the information they contain isn’t relevant to pending cases or cases the company anticipates being a party to in the future. However, sectors, such as financial services, remain subject to the data-retention rules they have always followed. In-house attorneys and IT staff will have to work together to ensure routine erasing of backup data doesn’t present legal issues. Lawyers must also know where company data is stored.

Many large companies are unaware of the data they have on hand, which makes them unprepared if sued. Because they lack a real knowledge of what data they house and where it is located, these companies are more likely to settle lawsuits to avoid the costs associated with electronic discovery. Better organization of the data will lower these costs and enable companies to avoid settling.

On the other hand, large companies are likely to face higher costs from organizing their data. The new rules make it necessary for companies to know about items more difficult to track, like work-related digital photos on employee cell phones and information on removable memory cards. As a result, firms that help businesses track and search their electronic data are experiencing a huge surge in new business.

Most legal experts agree that it isn’t a question of companies changing how they keep electronic files, but rather a question of having a more complete knowledge of where documents are stored. The new rules also provide more direction as to how electronic evidence is to be handled in federal litigation. This includes guidelines on how companies can be exempted from providing data that isn’t reasonably accessible, which could lessen the burden of electronic discovery.

Don’t Let Obsolete Driving Techniques Put You in Harm’s Way

It can be hard to hear your kids call your beloved television show reruns, choice of music, hairstyle, and/or clothes old school, but you’ll have to remember that you probably didn’t exactly jive with your parent’s choices either. While Elvis’s Rubbernecking may forever play in your head and never become dated in your eyes, you should realize that your driving techniques may be one dated area truly in need of an update. The advances made to automotive technology and in safety research have likely made most of what you learned as a new driver not only dated, but dangerous.

Here are six tips to bring your driving skills up-to-date and avoid jeopardizing your safety, as well as those around you.

1. Seat position – airbags have made seat positioning an important safety issue for drivers and passengers. When airbags were first placed in vehicles, they caused some serious injuries to drivers seated too close during a deployment. Even modern de-powered airbags can deploy at 150 mph and cause serious injuries if the driver isn’t seated at a safe distance. Position your seat 10-12 inches from the steering wheel.

2. Hand position – you probably learned to keep your hands palm-side down at 10 o’clock and 12 o’clock as you grip the steering wheel. Today, it’s recommended that your left hand be at 8 o’clock and your right hand be at 4 o’clock to help prevent your arms from tiring during prolonged driving. It’s also recommended to place your thumbs atop the steering wheel and wrap your fingers underneath the wheel.

3. Wheel turns – you probably learned the hand-over-hand method of turning the steering wheel. It’s now recommended to use a push-pull-slide method where one hand pushes the wheel up as the other hand pulls it down. Neither forearm will cross the steering wheel hub, and neither hand will leave the steering wheel. The upward pushing hand continues to push as it slides back to it’s original positioning. Meanwhile, the other hand is sliding back as it continues to pull. The driving technique is aimed at reducing the risk of hitting yourself in the face if your airbag were to deploy.

4. Normal breaking – it’s been discovered that you have the greatest control over breaking when you keep your heel on the floorboard and normally break with the toes. Ensure that you judge stopping distances accurately in order to use the same degree of braking pressure from the time you first break until the vehicle actually comes to a complete stop.

5. Breaking on slick surfaces – leave the transmission in drive and remove your foot from the accelerator if you’re breaking on a slick surface area. The drag of engine compression will help the vehicle to slow down quicker.

6. Emergency breaking – anti-lock breaking systems, or ABS, mean that you no longer need to pump the breaks. During emergency breaking, just maintain a firm, steady pressure on the brake pedal. Remember to steer in the direction you need the vehicle to go.

Third Party Coverage Is a Key Coverage of Employment Practices Liability Insurance

The purpose of third-party coverage in an Employment Practices Liability (EPLI) policy is to protect an organization and its employees from accusations of wrongful acts committed against customers, clients, vendors, and suppliers. Some EPLI policies also cover wrongful acts committed by third parties against the insured’s employees.

Harassment and all forms of discrimination are covered under wrongful acts. Discrimination claims include discriminatory practices against a person based on their race, religion, age, sex, national origin, disability, pregnancy or sexual orientation. Harassment involves unwanted sexual advances or requests for sexual favors. Both verbal and physical conduct, as well as other forms of harassment that create a hostile or offensive work environment, are covered. Some policies also cover accusations of mental anguish, emotional distress, humiliation and assault.

If your organization has a lot of interaction with the public, it is especially vulnerable to third-party claims like those described above. In some cases, EPLI carriers may not provide third-party coverage to firms with a high potential for claims. What they might offer instead is limited coverage, such as covering accusations of discrimination, but not harassment claims.

To protect your organization from third-party claims, you need to go beyond just purchasing coverage. You must implement policies and procedures that address discrimination and harassment issues, both from the standpoint of an employee’s actions and the actions of third parties. EPLI insurers are increasingly requiring employers to implement these practices before they will issue a policy.

Having policies in place will offer little help to stop third-party claims if employees aren’t adequately trained. New employee orientation programs should include a presentation outlining the organization’s harassment/discrimination policies. The training must also include how to report and handle a third-party claim. However, hearing the information once is not enough to insure compliance. Employees must be periodically retrained through departmental meetings. To maintain the effectiveness of departmental training sessions, be sure that supervisors are provided with copies of all policy updates and procedural changes.

One important caveat to keep in mind is that most EPLI policies don’t provide third-party coverage for accusations involving the violation of the Americans with Disabilities Act. Nevertheless, you should review your EPLI policy’s definition of a claim to determine the policy’s interpretation. Many policies define a claim as a “demand for monetary damages.” This definition can present a problem in an ADA claim, because many of these claims are asking for reasonable accommodations, not monetary awards. That’s why it is important to ensure that your policy’s definition of a claim includes claims for non-monetary damages. A policy with this expanded definition will cover defense costs and indemnity connected with an ADA claim, but will not provide the funds to bring your organization into compliance with the provisions of the law.