Indiana Business Lawyer Blog

How to Avoid the CBS Evening News

The next question is what can employers do to protect their employees or to avoid being in the headlines for the CBS Evening News? Employees should have zero tolerance policy towards workplace violence against or by employees, whether the violence originates inside or outside the workplace. Employers should establish a workplace violence prevention program and incorporate that into an accident prevention program, employee handbook, and/or standard operating procedures.

An employer should consider establishing and implementing a written workplace violence prevention program that includes and/or provides for the following:

§ Workplace Violence Policy Statement (statement should include that there is zero tolerance for work place violence and encourage reporting without retaliation)
§ Management commitment and employee involvement (involvement by all and system of accountability)¹
§ Worksite analysis (identify existing hazards)
§ Hazard prevention and control (practice controls and procedures in the event of a violent incident)
§ Training and education for supervisors and employers
§ Incident reporting, investigation, follow up
§ Recordkeeping evaluation program (OSHA 300 log and analyze impact)

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Background

According to the Occupational Safety and Health Administration (“OSHA”), approximately 2 million American workers are victims of workplace violence each year. See www.osha.gov. In 2008, homicide was the third leading cause of fatal occupational injury in the U.S. and the second leading cause of death for females in the workplace. See Bureau of Labor Statistics, Census of Fatal Occupational Injuries Summary 2008, available at http://www.bls.gov/news.release/cfoi.nr0.htm.

The National Institute for Occupational Safety and Health (“NIOSH”) defines workplace violence as follows: “violence acts, including physical assaults and threats of assaults, directed towards a person at work or on duty.” See NIOSH, http://www.cdc.gov/niosh/about.html. OSHA expands the definition as follows: “Workplace violence is a physical assault, threatening behavior or verbal abuse occurring in the work setting. It includes, but is not limited to, beatings, stabbings, suicides, shootings, rapes, near suicides, psychological trauma, such as threats, obscene phone calls, and intimidating presence, harassment of any nature, such as being followed, sworn at or shouted at.” See OSHA, www.osha.gov.

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XI. The Insured Always Loses.

The sad part about a catastrophe such as a fire is that it leaves the insured always in a worse position than they were before the fire. In addition to the obvious emotional toll, the time needed to devote to the developing of a claim is substantial and impossible to replace. Additional living expense, usually a maximum of $5,000.00, would provide some immediate cash to replace clothing and living essentials necessary within a few days of the fire. Then comes the issue of where does the insured live? Initially there would be accommodations provided by the insurance company in a hotel that may or may not be adequate for the insured’s needs. Longer term requirements include the renting of a house or other facilities, as well as furniture and household goods necessary to maintain a living during the pendency of the claim. Depending upon the policy, additional living expenses can be for a “reasonable period of time” or a specific limitation of one year or more depending upon the terms of the contract.

Continue reading " If You Have A Fire Don't Get Burned By: Peter L. Obremskey and Michael L. Schultz " »

IX. Actual Cash Value vs. Replacement Cost.

Insurance provided by any fire insurance policy is either an indemnification policy that indemnifies the insured for the loss, or a replacement policy. Depending on coverage, the loss can be based on the actual cash value of the property loss or on the replacement cost of rebuilding and replacing the lost buildings and property.

The actual cash value of property typically is not defined in the policy. Indiana courts employ the “Broad Evidence Rule” to determine the actual cash value of property subject to a loss. See, Travelers Insurance Co. v. Armstrong, 442 N.E.2d 352 (1982). In simplest terms, this means that any information that is available to the insured can be included in a determination of what constitutes actual cash value. The insurance company will attempt to limit the actual cash value to the cost of the item less depreciation. It is a mistake to let them determine the actual cash value on that basis. For example, a couch lost in a fire in a home with four active children has had a lot more wear and tear and the actual cash value is significantly reduced when compared to the same couch purchased at the same time by an elderly, retired couple. Actual cash value should be determined on a case-by-case, item-by-item basis and not by broad determinations of depreciation as determined by the insurance company’s adjuster for each item in the loss.

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VIII. Proof of Loss.

Within a day or so of the fire, an insurance adjustor will provide to the insured claims forms for what is called the “Proof of Loss.” The Proof of Loss itself is a one page document in which the insured summarizes the amount of the loss and then signs it and swears to it that it is accurate and does not contain any fraud, etc. The insured needs to be careful when sending in the Proof of Loss and must make sure that it is reasonably accurate. This does not mean, however, that the Proof of Loss can’t be amended; it can and should if new evidence indicates that the loss is greater than initially anticipated. Also along with the Proof of Loss will be a great many pages of forms provided by the insurance company in which the insured is obligated to identify the items of personal property that were lost in the course of the fire as well as the extent of the damage to the structure.

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VII. Special Investigations Unit (SIU).

If, after taking the statement under oath and conversing with the fire or police authorities, the insurance adjustor calls in the Special Investigations Unit (SIU), look out. It’s time to seriously begin protecting your own interests. The insurance company’s SIU investigator is there for the sole purpose of attempting to find the cause and origin of the fire to be the insured and to deny coverage. That is the sole purpose of his existence. If not before, it is now time for the insured to hire a cause and origin expert of his own to obtain a balanced approach to determining the cause and origin of the fire. In order to do so, it is important that the fire scene remain intact and no efforts be made for cleanup until your investigator has an opportunity to view the fire scene. There are many competent cause and origin investigators available.

Continue reading " If You Have A Fire Don't Get Burned By: Peter L. Obremskey and Michael L. Schultz " »