2013 CASBO ANNUAL CONFERENCE & SCHOOL BUSINESS EXPO RM33: Be in the Winner’s Circle: Lessons Learned from Large Losses APRIL 3-6, 2013, LONG BEACH, CA

2013 CASBO ANNUAL CONFERENCE & SCHOOL BUSINESS EXPO

RM33: Be in the Winner’s Circle: Lessons Learned from Large Losses

APRIL 3-6, 2013, LONG BEACH, CA

These materials have been prepared by the CASBO Risk Management Professional Council (or CASBO Associate Member). They have not been reviewed by State CASBO for approval, so therefore are not an official statement of CASBO.


IntroductionsEric Lucas, JD, CPCU, ARM

Interim Chief Executive Officer

Schools Excess Liability Fund

Dan Mellon, ARM-P

Director Risk Management and Human Resources

Chino Valley USD

Executive Committee President

SCSRM

Neal Meyers, Esq.

Partner

Meyers Fozi, LLP



What is a “Large Loss”?

From excess carrier’s perspective, a claim that might touch the excess layer at any time during the course of litigation

From the school’s perspective, any claim that might exceed its self-insured retention (SIR) or primary insurance limits or that might be an uncovered loss

Politically charged or matter of significant community concern


Common “Large Loss” Claims Catastrophic injury such as death, brain trauma, loss of

use of limbs

Molestation, sexual abuse and assaults

Environmental contamination and exposures

Employment claims

Any claim that allows for recovery of attorney’s fees


Lesson One:Early Intervention

Robust early fact and document investigation Don’t learn the bad facts just before trial if an early

investigation can find them

Early expert analysis? Attorney initial opinions and analysis

Obtain a realistic litigation budget

Be objective and not defensive The politics can be difficult

Put your excess carrier/reinsurer on notice Pre-lawsuit mediation/case intervention


Lesson Two:Don't Forget Your Excess Carrier/Reinsurer

Notice. Notice. Notice. Notice. Notice.

Your excess carrier is your friend and could be your savior, don’t forget them

Consequences of late or no notice

Get to know early your excess provider, excess claims manager, members of the excess claims committee


Lesson Two:Don't Forget Your Excess Carrier/Reinsurer

Team with your excess carrier early in a large loss– Regular reports– Significant events– Continuous re-evaluation– Immediate notice of settlement conferences and mediations– Excess monitoring counsel, if assigned– Remember, the excess has it own job to do to protect its

program too Understand excess pool/carrier contract obligations and

settlement control rights


Lesson Three:Large Loss Control Strategies

Very early and meaningful CCP 998 or Federal Rule 68 offers of compromise in cases that may award attorney’s fees– Use them to create risk that fees may not be

awarded

Early analysis and evaluation of MediCare conditional payments and set-asides– Well before mediation, if possible– SMART Act


Lesson Three:Large Loss Control Strategies

Mock trial and related jury behavior analysis pre-mediation and trial– Witness assessment– Valuation assessment– Helps develop trial strategy

Government code 985 collateral source set-off assessments and pre-settlement conference notices to providers

Hanif/Howell cost reductions and in limine strategies


Lesson Four: The “Courthouse Steps” and Post-trial

Strategies “Courthouse steps” remain a powerful settlement tool

against plaintiff Good or bad in limine rulings

– Is that “good evidence” getting in after all?– Is that “bad” evidence getting in that shouldn’t be?

During trial Post trial

– New Trial Motions– Set-off and periodic payment motions– Appeal


Case DiscussionsYear Settlement County Description

2013 $8.6 million Orange Positional asphyxiation of a 3 year old.

2012 $4.375 million San Diego Traumatic Brain Injury-HS Football.

2010 $17.9 million Merced Cheerleader fell form the bed of a pick-up en route to a parade-Traumatic Brain Injury.

2010 $5.0 million Los Angeles 3 developmentally disabled students – ages 7- 8 – molested by an aide.

2008 $18.4 million Los Angeles Student horseplay resulting in quadriplegia.

2008 $14.1million Riverside Recess dodge ball game resulting in Traumatic Brain Injury.

2006 $10.1 million Orange Classroom science experiment resulted in 2nd & 3rd degree burns over 40% of student’s body.

Documents

2013 CASBO ANNUAL CONFERENCE & SCHOOL BUSINESS EXPO RM33: Be in the Winner’s Circle: Lessons Learned from Large Losses APRIL 3-6, 2013, LONG BEACH, CA