Howard J. Franco, Esq. Michael L. Wroniak, Esq. Special Guest Star: Luci Thompson

WHAT TO LOOK FOR WHEN INVESTIGATING CLAIMS HOW TO TAKE STATEMENTS RESPONDING TO CLAIMS DEALING WITH THE MEDIA

 Types of Claims Trip/Slip and Fall Workplace Injury Third Party Liability Distinction and Scope

 Depends on the Type of Claim Tort Based Contract Based  Public Entity v. Private Entity Statutory Requirements Common Law

 ELEMENTS TO ESTABLISH LIABILITY DUTY BREACH OF THE DUTY CAUSATION DAMAGES

 ELEMENTS TO ESTABLISH LIABILITY HARMED BY A PRODUCT THAT CONTAINED…  MANUFACTURING DEFECT  DESIGN DEFECT  FAILURE TO WARN

 USE THESE ELEMENTS TO CONDUCT YOUR INVESTIGATION! Keys to the investigation OWNERSHIP CONTROL NOTICE

FIRST: THE INCIDENT OR RECEIVE CLAIM FORM SECOND: BEGIN INVESTIGATION THIRD: CLAIM RESPONSE FOURTH: LAWSUIT

 INCIDENT FORM PROTOCOL Develop Protocol Communicate and Follow Protocol “CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION” or “PREPARED AT THE REQUEST OF COUNSEL” or “PREPARED IN ANTICIPATION OF LITIGATION”

INCIDENT FORM Time, Date and Activity Observations ONLY NO Opinions

 GATHER INFORMATION IMMEDIATELY Determine if claim has merit Preservation of evidence  FIX THE PROBLEM?

 Respect  Courtesy  Understanding  Professionalism  Sincerity  DO NOT EXPRESS ANY OPINIONS! Avoid commentary Stick to Facts…remember Joe Friday

CLAIMANT THIRD PARTY WITNESSES EMPLOYEES INDEPENDENT CONTRACTORS

Inspection Reports Maintenance Records Citizen Service Requests/Complaints s and other correspondence Prior Tort Claims Original Design Documents

Contracts  Indemnity Provisions  Insurance Endorsements Meeting Minutes City Council Agenda’s/Reports Municipal Codes

 Photographs  Videos  OF WHAT? Physical Injuries Property Damage Accident location  Many different angles  Alleged dangerous condition

 Preserve Documents!  Create Paper Trail of Investigation NO OPINIONS  Tender to Third Parties Independent Contractors Contractors Insurance Carriers Insurance Brokers Public Entities  May need to do your own Tort Claim

 Deny  Settlement  Worker’s Compensation  Disability

Claims investigation is a collaborative effort… especially once litigation begins  Attorney  Claims Representative/Risk Manager  Organizational personnel Define roles and responsibilities at outset of investigation  Division of labor  Avoid duplication of efforts  Cost savings

Attorneys and claims/risk managers need to communicate with each other regularly  , Phone or In-Person  Attorney reports should contain critical analysis and recommendations  Open and honest communication  BOTH GOOD AND BAD!

Media shapes and forms public opinion with how it reports your case in several different ways…

 Places officials in the public light  Pressure on company and claims handlers  Causes public uproar regardless of “real” facts  Makes case seem larger than it is  Puts your company in a defensive position

 Develop relationships and cooperate with local media  Have your communication network set up  Be first to report?

Common Mistakes  Too many people making statements One Person One Agency  Not making a statement or talking to the press  Statements that fuel the fire

YOUR INVESTIGATION PROVIDES GROUNDWORK FOR DEFENDING LAWSUIT!

 The Good  The Bad  The Ugly

INVESTIGATIONEVIDENCE  Claim Report  Documentation  Photographs/videos  Statements  Assess Liability  Assess Damages  Direct Evidence  Indirect Evidence  Impeachment Evidence  Depositions  Develop Theme(s)  Assess Liability  Assess Damages