The beginning months of this winter snow season were extremely busy for snow & ice management companies, but they have also resulted in a significant number of claims unlike anything I’ve ever seen in such a short period of time. My clients, large and small, are receiving claims – most from alleged personal injury and property damage caused by snow and ice-covered surfaces – almost daily. When you are served with a complaint or receive notice of a claim, there are immediate steps you should take and details to address to help mitigate the impact of the claim.
Give it your immediate attention
No matter how busy you are, promptly respond the claims by immediately calling your insurance agent. Advise your agent of the claim and send any documentation you received. If you are too busy to tend to this task, assign the responsibility to a member of your staff.
Your insurance policy has language requiring you to supply prompt notice of claims to your insurance company, and also requiring your cooperation. Failure to do so may result in your insurance company denying coverage. You pay a lot of money for your insurance coverage, and you don’t want to jeopardize your coverage by failing to report a claim.
Depending on who notifies you, there are certain ways to proceed:
Claimant notification. If you receive the claim through a call from the injured party, take down any information the claimant will provide, and ask him to send you all available documentation on the claim an injury. It is somewhat unusual for claimants to make direct contact with a snow management company, but it happens. In an effort to immediately shift potential liability and save costs, claim departments are starting to identify the snow contractor and directing claimants to contact them directly. If the claimant calls, document where and when the alleged incident occurred, and the cause of the claim. Note: There is nothing to be gained by being rude to the claimant – any information the person supplies will be helpful in defending the claim.
Attorney notification. If an attorney calls you on behalf of the injured party, make sure you know with whom you are speaking before continuing the discussion. Although it is unethical, some law firms will use investigators who don’t properly identify themselves. You are required to speak with your insurance company, but you are absolutely not required to speak with an investigator retained by the claimant’s attorney. Do not discuss details with either an investigator or a claimant’s attorney, especially about the services your company provided. The attorney will use any information you offer against you, no matter how beneficial you believe the information may be. Ask the attorney to send you a letter and immediately forward it to your insurance agent.
The proof is in the details
Your insurance company will need information from you to defend the claim. You should have copies of all signed contracts and keep detailed records on the services you provide.
Keep weather and news reports discussing significant storm events. This information is extremely helpful should a lawsuit arise. We are often successful in defending large claims by arguing claimants venture outside in the middle of snowstorms and/or fail to take proper precautions for their own safety.
When you receive a claim, try not identify your supervisor and employees who were working at the subject location. You may not be aware of a claim until a year or two after the accident, and you may net remember the employee(s) actually performing the services. However, I have recently found notice delivered to my clients within days or weeks of the occurrence of a claim, and at that point it is generally fairly easy to identify the employees working at the location. The injured party will describe premises in poor condition, with snow and/or ice throughout the parking lot or covering the walkway. You need to refute this with documentation of services, and, if possible, with testimony from the supervisor responsible for inspecting the location.
The more complete and accurate the information you can provide your insurance company, the more helpful it will be toward your legal defense and the proper evaluation and defense of the claim. This results in lower defense costs for your insurer, potentially lower settlements, and lower insurance premiums for your company.
Many snow & ice contractors complain of insurance companies settling frivolous claims, resulting in an increase in premiums. Insurance companies are faced with a tremendous number of claims, and while they may settle a claim for a minimal amount to save defense costs, insurance companies will generally use their best efforts to pay only those claims where there is a legitimate basis for payment. This is why it is so important to cooperate with your insurance company. If you do not, you can’t really complain if it settles a claim where you feel payment is not required.
Similarly, when I defend a lawsuit, I need my client’s cooperation. If you don’t make time to assist with your defense, my ability to present a defense is negatively impacted. I may be the best attorney in the state, but I can’t craft a defense without at least minimal assistance from my clients.
IF you hired a subcontractor to service the location where the accident occurred, make sure you provide information about the vendor’s services, including the contract, to your insurance company. It will need contact the subcontractor and will promptly present the claim the subcontractor’s insurance company.
If you are a subcontractor and are notified of a claim by the snow company for who you are doing business, promptly place your insurance company on notice. The company that hired you will expect you to address and claims. You risk losing an important source of business if you are not administratively equipped to respond to claims.
It is impossible to catch the snow as it is falling, and if the snow & ice contractor timely responded and properly performed services, it should not be responsible for any injury or damage suffered in an accident. Proper documentation and services and timely, truthful response to the receipt of claims can go a long way toward a successful defense.
Whatever you do, NEVER:
Throw away notice of a claim. It won’t go away if you ignore it, plus your insurance company may deny coverage if you adversely affect the insurance company’s ability to investigate and respond to the claim.
Try to resolve a claim on your own. Do not think the claim is minor and you can simply give someone $100 and he will go away. It is always better to allow your insurance company’s claim professionals to resolve claims. If you have an attorney, you can allow him to speak with the injured party and attempt to resolve the claim, but do not fail to give prompt notification of the claim to your insurance company.
Darryl Beckman founded Beckman Roth Ogozalek, which has offices in New Jersey and Pennsylvania.