GENERAL LIABILITY CLAIMS

FRANK FORETFRANK FORET

OFFICE OF RISK MANAGEMENTOFFICE OF RISK MANAGEMENT

Who We Are

Ann Wax Ann Wax Claims OfficerClaims Officer

Kathleen Gasser Kathleen Gasser Claims ManagerClaims Manager

Frank Foret Frank Foret Claims SupervisorClaims Supervisor

James Lea James Lea Claims Supervisor Claims Supervisor

(225) 219-0012(225) 219-0012

(225) 342-8433(225) 342-8433

(225) 342-8463(225) 342-8463

(225) 342-8399(225) 342-8399

WHAT DO WE COVER?

The State of Louisiana The State of Louisiana provides insurance provides insurance coverage for third coverage for third party bodily injury and party bodily injury and property damage property damage claims for which the claims for which the agency could be held agency could be held legally liable. legally liable.

General Liability Claims

Claims alleging damages in tort due to negligence Claims alleging damages in tort due to negligence by the state of Louisiana.by the state of Louisiana.

The CGL unit handles claims that are not The CGL unit handles claims that are not Worker’s Comp, do not involve state owned Worker’s Comp, do not involve state owned automobiles, do not involve Medical Malpractice, automobiles, do not involve Medical Malpractice, and do not involve damages attributed to the state and do not involve damages attributed to the state highways. highways.

Claims range from trip and falls to property Claims range from trip and falls to property damage to wrongful acts, for example. damage to wrongful acts, for example.

The General Liability Policy covers: Premises and Premises and

OperationsOperations Completed Operations Completed Operations

and Products Liabilityand Products Liability Elevator and EscalatorElevator and Escalator Watercraft under 26’Watercraft under 26’ Contractual LiabilityContractual Liability Wrongful ActsWrongful Acts Errors and OmissionsErrors and Omissions

Professional LiabilityProfessional Liability Public Officials Public Officials CustodialCustodial Garage KeepersGarage Keepers Foster ParentsFoster Parents Protective LiabilityProtective Liability Fire Damage Legal Fire Damage Legal

LiabilityLiability

CIVIL RIGHTS CLAIMS

Claims alleging discrimination, harassment Claims alleging discrimination, harassment and or retaliation are also covered under the and or retaliation are also covered under the General Liability policy.General Liability policy.

FALSE ARREST

• False ArrestFalse Arrest

• False ImprisonmentFalse Imprisonment

• Illegal DetentionIllegal Detention

OTHER PERSONAL INJURY

• DefamationDefamation– LibelLibel– SlanderSlander

• Malicious ProsecutionMalicious Prosecution• Wrongful Entry Wrongful Entry • Wrongful EvictionWrongful Eviction

Reporting CGL Claims

In writing to: In writing to: General Liability ClaimsGeneral Liability Claims Office of Risk Management Office of Risk Management P. O. Box 91106P. O. Box 91106 Baton Rouge, LA 70821-9106Baton Rouge, LA 70821-9106 If loss is serious in nature, also telephone it in to If loss is serious in nature, also telephone it in to

(225) 219-0168.(225) 219-0168. E-mail: firstname.lastname@la.govE-mail: firstname.lastname@la.gov

HOW TO REPORT A CLAIM

For injuries sustained For injuries sustained by visitors to your by visitors to your agency, have agency agency, have agency contact complete the contact complete the CGL claim form found CGL claim form found on our website:on our website:

www.doa.la.gov/ormwww.doa.la.gov/orm

When a Loss Occurs

All Property which has been damaged is to All Property which has been damaged is to be protected against further damage and is be protected against further damage and is to be made available for inspection by a to be made available for inspection by a claims adjuster assigned by ORM.claims adjuster assigned by ORM.

The agency is not to assume any obligation The agency is not to assume any obligation or incur any expenses without the authority or incur any expenses without the authority of ORM.of ORM.

Where to send report of claim

1. Mail it 1. Mail it Attention Frank Foret:Attention Frank Foret: Office of Risk ManagementOffice of Risk Management Post Office Box 91106Post Office Box 91106 Baton Rouge, LA 70821-9106Baton Rouge, LA 70821-9106

2. Fax it to:2. Fax it to: (225) 342-4470(225) 342-4470

How a claim is processed

An Adjuster is assigned.An Adjuster is assigned.

The adjusting process:

1. Investigation1. Investigation 2. Evaluation2. Evaluation 3. Negotiation3. Negotiation 4. Settlement4. Settlement

Investigation of Claim

The adjuster investigates to determine The adjuster investigates to determine coverage by ORMcoverage by ORM

Liability and exposure are determined after Liability and exposure are determined after obtaining the facts of the incident. obtaining the facts of the incident.

What is Our Negligence?

What did we do wrong, or fail to do What did we do wrong, or fail to do right?right?

Limitation of Liability for Public Entities

R.S. 9:2800R.S. 9:2800 ……No person shall have a cause of action based No person shall have a cause of action based

solely upon liability imposed under CC Article solely upon liability imposed under CC Article 2317 against a public entity for damages caused 2317 against a public entity for damages caused by the condition of things within its care and by the condition of things within its care and custody unless it had actual or constructive notice custody unless it had actual or constructive notice of the vice or defect, had reasonable opportunity of the vice or defect, had reasonable opportunity to remedy it and failed to do so. to remedy it and failed to do so.

Constructive Notice

The existence of facts which infer actual The existence of facts which infer actual knowledgeknowledge

Example: Example: defective sidewalk in front of administrative defective sidewalk in front of administrative

building orbuilding or Defective sidewalk somewhere in middle of Defective sidewalk somewhere in middle of

campus where there are miles of sidewalk.campus where there are miles of sidewalk.

Evaluation of the claim

Do we have liability?Do we have liability? Are we 100% at fault or was there comparative Are we 100% at fault or was there comparative

fault by the claimant or fault by another party?fault by the claimant or fault by another party? What damages were suffered:What damages were suffered: MedicalsMedicals Lost wages or lost timeLost wages or lost time Out of pocket expensesOut of pocket expenses Property damageProperty damage

Negotiation of Claim

Claims may be filed “Pro Se” by the injured Claims may be filed “Pro Se” by the injured party or by an attorney.party or by an attorney.

The adjuster will negotiate directly to settle The adjuster will negotiate directly to settle a claim.a claim.

When a lawsuit is filed, the adjuster will When a lawsuit is filed, the adjuster will work with our defense counsel in work with our defense counsel in negotiations. negotiations.

Settlement of a Claim

The adjuster must have settlement authority in The adjuster must have settlement authority in order to negotiate and settle a claim.order to negotiate and settle a claim.

The adjuster may present requests for settlement The adjuster may present requests for settlement authority to supervisors or to Claims Council authority to supervisors or to Claims Council depending on the level of authority sought.depending on the level of authority sought.

He/she must obtain a full and final release of all He/she must obtain a full and final release of all claims and a dismissal of any legal action in order claims and a dismissal of any legal action in order to settle a claim.to settle a claim.

Frequently Asked Questions

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Were we negligent in maintaining a safe Were we negligent in maintaining a safe environment?environment?

Take pictures of area of fall.Take pictures of area of fall. Note whether claimant was wearing glasses, Note whether claimant was wearing glasses,

carrying things, type of shoes worn.carrying things, type of shoes worn. Provide witness information.Provide witness information.

Do we cover trip and falls?

How You Can Help

Tell us about conditions that contributed to the Tell us about conditions that contributed to the accident:accident:

Wet floor, any warning signs?Wet floor, any warning signs? Holes, barriers, irregular surfaceHoles, barriers, irregular surface LightingLighting WeatherWeather HandicapHandicap EyeglassesEyeglasses Carrying anything that might obstruct vision Carrying anything that might obstruct vision

Take Photographs of the Scene

Label with name of injured party and dateLabel with name of injured party and date Take some photos that show location and Take some photos that show location and

landmarks landmarks

Falls that involve a chair?

Only if the agency is negligent in Only if the agency is negligent in maintaining a chair in a safe condition.maintaining a chair in a safe condition.

If chair broke, remove it from service, save If chair broke, remove it from service, save it and label it with name of person who fell it and label it with name of person who fell and date of incident.and date of incident.

Note the manufacturer and supplier of chair.Note the manufacturer and supplier of chair. Take pictures Take pictures Provide witness namesProvide witness names

Damage to private cars?

Falling tree branches? Depends on whether Falling tree branches? Depends on whether it was live or visibly dead. Need photos.it was live or visibly dead. Need photos.

Gate arm? If it malfunctioned.Gate arm? If it malfunctioned. Vandalism by unknown person? No.Vandalism by unknown person? No. Our mower? Yes if the auto is insured.Our mower? Yes if the auto is insured. Need proof of liability insurance required Need proof of liability insurance required

by LA Law.by LA Law.

Loss of personal property ?

Must determine care, custody and controlMust determine care, custody and control If property was left behind and then If property was left behind and then

discovered to be lost, that would be discovered to be lost, that would be abandonment on the part of the owner, and abandonment on the part of the owner, and would not be negligence on the part of the would not be negligence on the part of the state.state.

Theft or Burglary of Privately Owned Auto Parked on Agency Grounds. The state is not the insurer of a privately The state is not the insurer of a privately

owned automobile. We act as the gratuitous owned automobile. We act as the gratuitous depository only. depository only.

Trip and Fall in Elevators

We must determine the Maintenance Co. We must determine the Maintenance Co. that services the elevator and review the that services the elevator and review the contract.contract.

Check to see whether a malfunction has Check to see whether a malfunction has been previously reported to the been previously reported to the Maintenance Co.Maintenance Co.

Do We Cover Injuries or Damages Caused by Wildlife? Vehicle traveling on state highway hits a Vehicle traveling on state highway hits a

deerdeer Visitor to state park receives insect Visitor to state park receives insect

bite/snake bitebite/snake bite

Lawsuits filed against your Agency

Immediately forward all lawsuits, demands, Immediately forward all lawsuits, demands, or legal documents pertaining to a claim to or legal documents pertaining to a claim to ORM for further handling.ORM for further handling.

What if Lawsuit names a State Employee as a Defendant?

Louisiana Governmental Claims Act R.S. 13:5101 et seq. states this (Act) applies R.S. 13:5101 et seq. states this (Act) applies

to any suit in contract or for injury to person to any suit in contract or for injury to person or property against the state, a state agency, or property against the state, a state agency, an officer or employee of the state or a state an officer or employee of the state or a state agency arising out of the discharge of his agency arising out of the discharge of his official duties or within the course and official duties or within the course and scope of his employment…scope of his employment…

R.S.13:5108.1

Indemnification of officers and employees Indemnification of officers and employees of the state; civil rights; representation by of the state; civil rights; representation by the Attorney General.the Attorney General.

ORM is the insurerORM is the insurer State employee is the insuredState employee is the insured DOJ is defense counselDOJ is defense counsel

Named Defendant Must Request Representation by Attorney General Send a copy of the petitionSend a copy of the petition Send a cover letter to Attorney General Send a cover letter to Attorney General

Charles C. Foti requesting representationCharles C. Foti requesting representation Provide information regarding service of Provide information regarding service of

the petition the petition Within 10 days of date of service of petitionWithin 10 days of date of service of petition

Our Duty to Defend:

The state shall defend and indemnify a covered The state shall defend and indemnify a covered individual against any claim, demand, suit, individual against any claim, demand, suit, complaint or petition seeking damages filed in any complaint or petition seeking damages filed in any court over alleged negligence or other act by the court over alleged negligence or other act by the individual, including any demand under any individual, including any demand under any federal statute when the act that forms the basis of federal statute when the act that forms the basis of the cause of action took place while the individual the cause of action took place while the individual was engaged in the performance of the duties of was engaged in the performance of the duties of the individual’s office or employment with the the individual’s office or employment with the state.state.

Who is Covered?

R.S.13:5108.1(e)R.S.13:5108.1(e) 1. An official, officer, or employee holding 1. An official, officer, or employee holding

office or employment: office or employment: Executive branchExecutive branch Legislative branchLegislative branch State Supreme Court, courts of appeal, State Supreme Court, courts of appeal,

family, juvenile or judicial district courtsfamily, juvenile or judicial district courts Deep-water ports Deep-water ports

TORTTORT• A private or civil wrong or injury,…for which

the court will provide a remedy in the form of an action for damages.

• A legal wrong committed upon the person or property independent of contract. It may be either 1. A direct invasion of some legal right of the individual; 2 the infraction of some public duty by which special damage accrues to the individual; 3 the violation of some private obligation by which like damage accrues to the individual.

• BLACK’S LAW Dictionary

NEGLIGENCENEGLIGENCE

The tort or negligence consists of the existence of a legal duty owed

the plaintiff by the defendant, breach of the duty, proximate

causal relationship between the breach and plaintiff’s injury and

damages.

Claim, demand, suit, complaint or petition seeking damages

Remedy sought determines whether Remedy sought determines whether complaint with be handled by ORM.complaint with be handled by ORM.

Suits seeking contractual damages or Suits seeking contractual damages or suits on open accounts are not handled by suits on open accounts are not handled by ORM.ORM.

Limitations

Suits against the state must be filed in Suits against the state must be filed in Louisiana state courtsLouisiana state courts

Suits for personal injury to any one person Suits for personal injury to any one person total recoverable exclusive of property total recoverable exclusive of property damages, medical care, loss of earnings, damages, medical care, loss of earnings, shall not exceed five hundred thousand shall not exceed five hundred thousand dollars. dollars.

Future Medical Care Fund

In personal injury suits wherein the court In personal injury suits wherein the court awards medical care and benefits awards medical care and benefits subsequent to judgment, this is paid subsequent to judgment, this is paid according to R.S. 39:1533.2according to R.S. 39:1533.2

Medical care benefits are paid directly to Medical care benefits are paid directly to providers as incurred.providers as incurred.

Civil Rights Lawsuits

What is Title VII of the Civil Rights Act of 1964? It prohibits discrimination in employment It prohibits discrimination in employment

on the basis of:on the basis of: RaceRace SexSex National OriginNational Origin Religion Religion

Employment Practice Liability

Claims of Improper or Discriminatory:Claims of Improper or Discriminatory: -Hiring, Firing, Discipline-Hiring, Firing, Discipline -Compensation Classification-Compensation Classification -Treatment, Training, Opportunities-Treatment, Training, Opportunities -Terms and Conditions of Employment -Terms and Conditions of Employment

DiscriminationIs Illegal in the Following: Hiring and FiringHiring and Firing Compensation, Compensation,

assignment, or assignment, or classificationclassification

Recruitment, testingRecruitment, testing Use of facilitiesUse of facilities

TrainingTraining BenefitsBenefits Pay, retirement plansPay, retirement plans LeaveLeave Other terms of Other terms of

employmentemployment

To Prove Discrimination

There must be an adverse employment There must be an adverse employment action such as failure to hire or promote, or action such as failure to hire or promote, or termination.termination.

What is Title I of ADA?

Americans with Disabilities Act prohibits Americans with Disabilities Act prohibits discrimination in employment against a discrimination in employment against a qualified individual with a disability qualified individual with a disability because of the disability.because of the disability.

It is unlawful to take retaliatory action It is unlawful to take retaliatory action against any individual for opposing against any individual for opposing unlawful practices or for filing a charge. unlawful practices or for filing a charge.

What is the Age Discrimination in Employment Act? It prohibits discrimination in employment It prohibits discrimination in employment

on the basis of age with respect to on the basis of age with respect to individuals who are 40 years of age or individuals who are 40 years of age or older.older.

Who Enforces these Acts?

Equal Employment Opportunity Equal Employment Opportunity Commission (EEOC)Commission (EEOC)

Employment Litigation Section, Civil Employment Litigation Section, Civil Rights Division, U.S.Department of Justice Rights Division, U.S.Department of Justice enforces Title VII against state governments enforces Title VII against state governments

What Does EEOC Do?

EEOC investigates claims of discrimination filed EEOC investigates claims of discrimination filed by employees.by employees.

If there is reasonable cause to believe a violation If there is reasonable cause to believe a violation of the law has occurred and conciliation efforts are of the law has occurred and conciliation efforts are unsuccessful thenunsuccessful then

EEOC refers the charge to the U.S. Department of EEOC refers the charge to the U.S. Department of Justice to initiate litigation,Justice to initiate litigation,

Or issues a right to sue letter to complainant. Or issues a right to sue letter to complainant.

Is There a Time Limit to File?

Charges filed against the state must be filed Charges filed against the state must be filed within 300 days of the act of discriminationwithin 300 days of the act of discrimination

EEOC does their investigationEEOC does their investigation After a Right to Sue letter is issued, there is After a Right to Sue letter is issued, there is

an additional 90 days in which to file a an additional 90 days in which to file a lawsuit.lawsuit.

Questions?