Risk & Insurance Chalkboard : Risk Management & Commercial Insurance Consultants : Risk Resources : Audits, Claims Assistance, Litigation Support & Testimony

Today's property and liability insurance policies provide very limited coverage for claims arising out of pollution. All organizations should conduct an analysis of the potential pollution/contamination loss exposures within their operations. They should review how their present insurance program provides coverage for claims arising out of pollution including mold, fungus and bacteria contamination.

Pollution claims not covered by your current insurance may arise from the following areas: 

1. Use of any chemicals including solvents, degreasers, paints, cleaning products, fuels, pesticides, herbicides, etc. One of our clients recently had an incident where workmen mixed the wrong chemicals together creating dangerous fumes and the part of the building where they were working had to be evacuated for several weeks.
2. Waste disposal practices. 
3. Mold, fungus and bacteria contamination.  
4. Malfunction of heating or ventilation equipment, e.g. carbon monoxide poisoning.
5. Fire to old electrical equipment including transformers containing PCB's.  One of our clients had this happen and PCB's were released into the ground.  The clean up cost was over $300,000. 
6. On site pollution clean up costs when there is a serious property loss, e.g. asbestos removal and disposal after a fire.
7. Transportation of hazardous materials within your operations. 
8. Leakage of underground or above ground storage tanks.
9. Contamination of your products.

Consider obtaining a quotation for separate pollution insurance. Once a separate pollution insurance quotation has been obtained, you can evaluate the benefits of purchasing this coverage versus self insuring the potential pollution/contamination exposures not covered by your present property and liability insurance policies. 

• Email This
• Print
• Comments
• Trackbacks

Your shop superintendent calls in sick today and says he has the H1N1 flu virus. He indicates he caught it from the shop machinist or others who have been out several days with the virus, that he should be getting work comp benefits. Sounds logical, so what do you tell him?

According to Chris Boggs in his LexisNexis post, Is H1N1 Compensable Under Workers Compensation?, injury must arise out of an illness or disease that is peculiar to the work. Hearing loss as a result of years of working on a printing press or respiratory complications due to industrial chemical exposure are clearly occupational.

Since H1N1 can easily be contracted in a grocery store or simply at home it does not qualify as a disease that has exposure that is unique to a work environment. Now at this point, you might think this is contradictory to some work related accident injuries. You can injure your back while lifting a box as a warehouse employee as easily as you can taking out the garbage at home. Since it is not an injury that is unique to the workplace is it not covered by workers compensation?

The distinction here is that the injury occurred at a specific time and place (while working). It is normally the result of a specific event that can be attributed to the injury, lifting the box.  In this example it may be difficult to disprove the injury is work related since the manifestation of the injury may not be immediate. All too often employers are forced to pay for soft tissue injuries that have no work related origin. How do you prove the back strain occurred lifting the garbage can on the weekend vs. last Friday in the warehouse?

This type of uncertainty as to the origin and the cause is one of the reasons industrial commissions and courts tread very cautiously in determining whether a disease is occupational. Over the years certain illnesses, such as Asbestosis, have been directly linked to the industries that  use asbestos in their manufacturing process. The CDC records a doubling of the death rate from this over the past 20 years. Other areas, such as exposure to chemical fumes or dust that can exacerbate existing respiratory ailments, may not be as clear.

Healthcare workers can be exposed to communicable diseases through contact with a patient's blood. In most jurisdictions this would be considered occupational disease. An employee who alleges that a coworker who is HIV positive infected him where there is no evidence of work related blood contact would not be covered.

The arguments regarding the compensability of certain illnesses or diseases will continue on for years to come. Litigation often results and this can change the landscape as to what is covered as a work related illness. For the time being it is best to be cautious when informing employees as to what may be covered under workers compensation. If there is doubt submit it to the insurance company and let them decide.

As for the H1N1, stock up on hand sanitizers.

• Email This
• Print
• Comments
• Trackbacks

Most states today require insurers to offer uninsured motorists insurance and documentation if rejected. As noted by Insurance.com:

Uninsured or underinsured motorist coverage can pay for injuries to you and your passengers, and in some locations damage to your property, when there is an accident and the other driver is both legally responsible for the accident and considered "uninsured" or "underinsured."

Mose states that prohibit outright rejection require minimum limits, typically around $25,000. For larger  businesses limits are often set at policy limits of $1,000,000 with a minimal additional premium charge. The original intent of this insurance was to provide some financial remedy for the injured driver/passengers when the responsible party is uninsured.

There is a common misunderstanding as to who has access to this insurance. I have a client that several years back had U/M insurance at policy limits, simply because the insurer saw it as a "throw in" for an insured that had a large deductible. At the time the client had an employee involved in an automobile accident with another driver who was uninsured. The thinking at the time was that the employee would be covered by workers compensation for injuries suffered, since it was work related. The client thought the work comp benefits would be the sole remedy for the injured employee.

Since the other driver had no insurance the injured employee had the ablilty to make an uninsured motorists claim against his employer's automobile policy. At the time we thought "How can the employee access the employer's auto insurance without their permission"? The scope of uninsured motorists coverage extends "Insured" status to anyone occupying a covered auto, including an employee, as noted in the sample form (PDF).

Now one might think that if an employee recovered damages for bodily injury under uninsured motorists, it would set off or reduce the payments made by the workers compensation insurer. Often the damages that are claimed under uninsured motorists pertain to such things as pain and suffering that are not compensable under workers compensation. This allows the injured employee to "double dip" for sustained injuries. In my situation it was to the tune of several hundred thousand dollars.

What to do to prevent this? Always reject higher limits where offered.  Accept only the minimum statutory limits required and reject the coverage outright in those states that permit it. If you don't have the coverage or have only minimal limits, it will prevent or limit this double recovery. It is essential to maintain the signed rejection document (PDF) to validate your intent.

The only exception to this rule might be where the business owners seek to include this broadened coverage feature for personal protection. In these situations the specific vehicles need to be identified as the ones where full uninsured motorist coverage is desired.

• Email This
• Print
• Comments (1)
• Trackbacks