WCIA Executive Director City of Lakewood City Manager Are You Exposed? Ann Bennett WCIA Executive Director Rob Roscoe WCIA Deputy Director John Caulfied City of Lakewood City Manager

What is Risk? Any uncertainty about a future event that threatens an individual’s or organization’s ability to accomplish its mission

Why Worry? $51 million- Wrongful Termination/Discrimination $63 million-Auto Liability (10 killed, five injured) $750 million- Tree Hit Utility Electric Line ( 2 fatalities, 549 homes, 368 outbuildings,4 commercial properties, 44 structures) $65.7 million- Auto Liability (brain damage) $15 million- Police Excessive Force (1 killed)

Who Pays ? Often with a large verdict/settlement it is a combination of the below Entity Itself Commercial Insurer Self Insurance Risk Pool Most risk pools use a level of self-funding and purchase commercial insurance above their self-funded layer

Coverage Every claim is analyzed for coverage Who is being sued? What is the claimant/plaintiff alleging? What types of damage are they seeking? What is the date of loss? What grants coverage and what takes it away? Exclusions Often can be starting point of analysis Common Liability Exclusions Intentional Acts Fines, Penalties, Punitive Damages Pollution, Nuclear Energy, War, Asbestos Airports, Aircraft, Watercraft

Coverage Who does insurance cover? Other coverage Look to definitions under coverage/insuring document Employees, Volunteers, Elected Officials Subject to the terms and conditions of the document Other coverage City Indemnification Ordinances Covers Officials, Employees and Appointees Often doesn’t cover fraud, actual malice or willful misconduct Some cover punitive damages by act of governing body With both the question is “are they in the course and scope of their duties?”

Public Entity Claims & Lawsuits General Liability Sidewalks, Road Design, Premises, Parks Public Safety Police, Fire & Jails Excessive Force, Negligence, Civil Rights Violations Land Use Arbitrary Capricious, Due Process Personnel Harassment/Discrimination, Wrongful Termination

Public Entity Claims & Lawsuits Negligence Duty Owed, Breach of Duty, Proximate Cause, Damages as a Direct Result Duty Owed-Standard of Care Reflect normally accepted methods or practices of other persons or agencies performing the same activities May be defined by internal policies and procedures Breach of Duty Notice of problem Actual and Constructive Knew or should have known

Public Entity Claims & Lawsuits Litigation Plaintiff brings action Burden of proof on the plaintiff Degree of proof is preponderance of the evidence Judge and/or Jury decide liability and damages Reservation of Rights are often asserted by the insurer when a suit is tendered and claims alleged may not be covered but a defense is needed.

Joint and Several Liability Plaintiff is fault free Two or more defendants are at fault parties Plaintiff can seek payment of judgment from any defendant as long as they are at least 1% at fault Road Design Pursuits Passengers & Children

Fee Shifting Under certain statutes plaintiff attorneys can be awarded their fees and costs as prevailing party Most often found in cases regarding police, personnel and land use Multipliers can also be awarded by judge Jury can find no, or nominal damages for plaintiff but fees still awarded Intent is to encourage attorneys to take cases and provide legal recourse for injured parties

Wrongful Death New Legislation Regarding Wrongful Death Allows parents to sue for wrongful death of adult children Removes requirement that family members live in the United States Expanded Damages Non-economic damages also available where only economic damages were previously available Retroactive and applied to all claims not time barred or pending in court on effective date of bill

Risk Management The process of making and carrying out decisions that will minimize the negative affects of accidental loss upon the individual or organization Risk Avoidance Risk Retention Risk Transfer

Exposures & Controls Police Source: Law 360

Exposures & Controls Police Civil Rights Negligence Officers will be sued individually (Qualified Immunity) Chief and City may have liability if ratify actions or have a custom policy and practice which violates rights Fee Shifting Negligence Public Duty Doctrine? Training and policies can assist in defense (or harm)

Exposures & Controls Police Interlocal Agreements (SWAT) Pull all and review with City Attorney & Risk Pool Language should be straight forward and unambiguous Insurance, indemnification, claim/lawsuit handling Equal sharing, each responsible for their own, hybrid?? Signed by Mayor or City Manager (not Chief)

Exposures & Controls Road Design Duty to design and maintain roadways in a reasonably safe condition for ordinary travel Do not “politically engineer” Crosswalks, Signs, Speed Limits Avoid promises, assurances and inflammatory statements Autonomous vehicles, Bike/Scooter Ride Share are emerging exposures for roads

Exposures & Controls Personnel Harassment & Discrimination Have a policy, know your policy, train on policy Model zero tolerance, observe interactions in workplace Can have personal liability Social media

Questions?