Division of Risk Management Florida Department of Financial Services Program Information

Division of Risk Management Program Responsibilities Provides six major types of “insurance” coverage to State of Florida agencies by administering a self– insurance fund per Chapter 284, F.S. Processes claims filed against state agencies for these coverages Collects premiums from participating state agencies to pay claims Purchases private insurance as necessary to control risk exposure of state agencies Provides assistance to state agencies in the areas of loss prevention  loss control

Major Coverage Lines Provided Workers’ compensation  state employee injuries  Property  state owned buildings and contents  General liability  state agency premises and operations  Auto liability  state employees on state business  Federal civil rights  actions of state officials alleged to have violated someone’s Constitutional rights  Employment discrimination  discriminatory employment practices 

Organization of Risk Management Office of the Director State Liability Claims  general liability, auto liability, federal civil rights, employment discrimination  State Employees’ Workers’ Compensation Claims  workers’ compensation for injured state employees  Property, Financial and Risk Services  property claims coverage, loss prevention  loss control services, financial support services 

What/Who is Extended Coverage? State owned buildings and contents Workers’ compensation (employees, volunteers, and “statutory” employees) Liability – state employees, agents and volunteers in course and scope of their employment or duties State owned automobiles and personal autos used in the course and scope of employment

Limits of Liability Property – pay actual cash value or cost of repairs (whichever is less)(less deductible of $2500) Workers’ Compensation – pay medical, indemnity and death benefits according to chapter 440 General Liability and Automobile Liability - $100K per person, $200K per occurrence

Limits of Liability Federal Civil Rights – no monetary limits Employment Discrimination – subject to limits stated in Title VII, Federal Civil Rights Act of 1991, and Florida Civil Rights Act of 1992

Reporting Claims to Risk Management WC claims normally reported by agency WC coordinators or supervisors to our managed care provider – CorVel Property claims reported by agency property coordinators Liability claims reported by claimant, their attorney, agency legal office, field personnel, etc.

Managing Claim Files Property claims are assigned to staff in the Property Section for adjustment WC claims are assigned to either a WC Examiner (no lost time) or a WC Specialist (lost time claims)

Managing Claim Files Liability claims are assigned to a Risk Management Program Specialist or Insurance Specialist II Specialist will request investigative report from agency May utilize outside vendor (York STB) for field investigative work Determines facts, liability and damages Normally consults with agency about resolution of claim

Managing Litigation Files RM retains a lawyer to defend action (s ) RM notifies agency general counsel when suit is sent out for defense Governor’s agencies are provided drafts of all substantive motions or pleadings for review prior to filing Agency legal counsel are kept advised of case developments

Managing Litigation Files Mediation is ordered in most cases (agency will usually send a representative) Agency legal counsel is consulted about case management and case resolution (s ) Agency usually sends a representative to attend trials Agency consulted on post trial decisions

Negligence Claims Negligence is the commission or omission of an act that a reasonable person would or would not do. Authority or basis for negligence claims is F.S , the state’s waiver of sovereign immunity. Negligence claims coverages include general liability, auto liability, and professional malpractice.

Facts About Negligence Claims Claims must be presented to the agency and DFS in writing, within 3 years from the date of occurrence. State has 6 months to investigate before suit can be filed. Monetary limits are $100K per person, $200K per occurrence. State employees cannot be named personally as long as they were acting in course and scope of employment and were not willful, wanton, malicious, etc.

Auto Liability Claims RM coverage is for liability only – no coverage for damage to state vehicle or employee’s personal vehicle. Agency must collect for damage to state vehicle when other party is at fault. Avis assumes all losses for vehicles rented under contract with the state. RM covers liability of state employees using their personal vehicle in course and scope of employment.

Auto Coverage – Course and Scope Most state employees are not allowed to use a state car to commute from home to office. Exceptions are agency heads, sworn law enforcement officers, employees subject to call outs for protection of life or property, and employees who work from home. (F.S and FAC Chapter 60B-1.008). Using state vehicle to go to lunch, doctor, or for personal errands (cleaners, WalMart) is not in course and scope. Using state car on out-of-town trips for non-essential trips (go to a movie, the mall, etc.) is not in course and scope. Employees who have a state car may be able to purchase a “non-owned automobile” rider to cover liability when auto is not used in course and scope.

Tips for Preventing Negligence Claims Maintain premises and equipment in a safe condition. Have a scheduled maintenance program. Warn of all dangerous conditions and defects. Establish policies and procedures for operations and train employees to follow these policies and procedures, state laws, rules, etc. Encourage employees to act as a reasonable person would act.

Employment Discrimination Claims Employment Discrimination: Treating a person differently with respect to terms, conditions, and privileges of employment due to _________(an unlawful reason). Disparate Treatment (individuals) Disparate impact (usually groups) Neutral policy or practice that has a discriminatory impact

Both state and federal laws exist that allow claims by state employees against state agencies. Examples are: Title VII of the Civil Rights Act of 1964 Enacted to eradicate employment on the basis of race, color, religion, national origin and/or sex. Every aspect on the employment process is covered, including recruitment, hiring, job classifications, transfer, promotion, compensation and termination Employment Discrimination Claims

The Florida Civil Rights Act of 1992 (Chp. 760, F.S.) This act protects employees from discrimination based on race, color, religion, sex, national origin, age, handicap or marital status This act is broader than Title VII and is the only avenue to bring an action for age, handicap or marital status against the state because recent US Supreme Court decisions have held that the Americans with Disabilities Act and the Age Discrimination in Employment Act of 1967 are not applicable to the state (for monetary damages) due to 11 th Amendment immunity Employment Discrimination Claims

Sexual Harassment (A Form of Sex Discrimination) Quid pro quo (this for that): Employee benefits are conditioned on sexual favors (usually supervisor/subordinate) Hostile work environment: Unwelcomed conduct pervasive and severe

Tips for Preventing Employment Claims Examine your claims. Identify problem practices, employees, work units, etc. Correct the problem Have independent, knowledgeable, party review all employment decisions Make sure employment decisions can be justified with legitimate, objective, non-discriminatory reasons Document, Document, Document! – Decision-maker is often not available Educate and train employees about discrimination and proper employment practices

Section 1983 Imposes Liability On: Persons (individual state employees), who, acting under color or authority of state law, deprives a citizen of any rights, privileges or immunities secured by the Constitution and laws Civil Rights Claims 42 U.S.C Claims

Constitutional Amendments 1 st : right of freedom of speech, press, religion and assembly 4 th : security from unreasonable searches and seizures; no warrants issued without probable cause 8 th : no cruel or unusual punishments inflicted 11 th : states may not be sued in Federal or State court by a citizen unless the state has consented to the suit (does not confer rights – used by states to dismiss suits)

14 th Amendment – Due Process Procedural Due Process: State will not deprive a person of life, liberty, or property unless fair procedures are used in making the decision Substantive Due Process: State will not deprive a person of rights for an arbitrary reason regardless of how fair the procedures used to make the decision Will not deny equal protection of the laws

Importance of s.1983 law to state officials: Claims for monetary damages are against the state official as a “person” in their individual capacity, not against the state agency; assets of the state official can be taken to satisfy a judgment if insurance program is not available If employee clearly “intended to cause the harm,” Risk Management cannot provide a defense or pay judgment Risk Management cannot pay punitive damages There are no monetary caps on damage awards Attorney fees and costs can be awarded to prevailing claimants Civil Rights Claims

Importance of s.1983 law to state agencies Claims for declaratory or injunctive relief may be brought against agencies Injunctive relief could cost agency millions and disrupt programs Attorney fees and costs can be awarded to prevailing claimants Agency must pay to defend D&I suits Civil Rights Claims

Defenses to FCR Claims Employee did not commit the act Employee did not act under color or authority of state law Employee actions did not deprive claimant of a constitutional right or privilege Absolute immunity (Judges, Prosecutors, Legislators) Qualified or “good faith” immunity

Qualified Immunity Claimant must show employee violated clearly established statutory or constitutional rights of which a reasonable person would have known Would a reasonable employee have thought their actions were lawful in light of clearly established law and the information they possessed at the time the conduct occurred? Court ruling – “Should protect all but plainly competent or those who knowingly violate the law”

Tips on Preventing FCR Claims Examine FCR claims. Determine problem. Take corrective action (training, education, discipline, procedure change, etc.) Educate employees about their rights and the rights of citizens they deal with. Supervise. Discipline. Examine agency statutes, rules, policies, procedures, and programs. Make sure they are constitutionally sound and in compliance with state and federal rules Use monitoring systems or have at least 2 staff members present in “FCR” situations