The beginning months of this winter snow season have been extremely busy and hopefully profitable months for snow and ice management companies, but have also resulted in a significant number of claims. In over 25 years of practice as an attorney, I have not encountered as many claims in as short a period of time as I have seen this winter. My clients, large and small, are receiving claims on a daily basis. Most of the claims arise from personal injury and property damage reportedly caused by snow and ice covered parking lots and walkways.
When you are served with a Complaint, or receive notice of a claim in the mail or through a phone call, there are immediate steps you should take. I will discuss these steps below, but I must emphasize the importance of your prompt attention to claims. No matter how busy you may be, especially in the middle of the winter snow season, it is extremely important you promptly respond to legal claims.
Immediately upon receipt of a claim, whether notice of the claim comes through a phone call, a letter from an attorney, or a formal lawsuit, pick up the phone and call your insurance agent. Advise your agent of the claim, and if you receive notice of the claim through a letter or legal complaint, send the document immediately to your insurance agent. If you are too busy to tend to this task, assign the responsibility to a member of your office staff.
Your policy of insurance has language requiring you supply prompt notice of claims to your insurance company, and also requiring your cooperation. A failure to promptly advise your insurance company of a potential claim may result in your insurance company denying coverage. You pay a lot of money for your insurance coverage, and you do not want to jeopardize your coverage by failing to report a claim.
If you receive the claim through a phone call from the injured party or claimant, take down whatever details the claimant will provide, and ask the claimant to send you all available documentation on the claim and injury. It is somewhat unusual for claimants to make direct contact with a snow and management company, but it does happen, especially if you work for big box stores. In an effort to immediately shift potential liability and save costs, claim departments of big box stores are starting to identify the company performing snow clearing and deicing services and directing claimants to contact the snow management company.
If the claimant does call you, ask where the claim occurred, when the claim occurred, and the cause of the claim. This is important information you should supply to your insurance company. Importantly, there is nothing to be gained by being rude to the claimant, any information the person supplies will be helpful in defending the claim.If an attorney calls you on behalf of the injured party, you do not want to have a discussion with the attorney about the services provided by your company. 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 the letter to your insurance agent. Do not engage in a conversation with the attorney.
Make sure who know whom you are speaking with 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 a representative of your insurance company, but you are absolutely not required to speak with an investigator retained by the claimant’s attorney.
Your insurance company will need information from you to defend the claim. Hopefully, you are keeping records of snow clearing and deicing services, along with contracts for your snow clearing and deicing clearing services. Your insurance company will need all of this information, and the more accurate the information, the more helpful it will be towards your defense. Additionally, promptly supplying the insurance company with necessary information will significantly enhance the ability of the insurance company to evaluate and defend the claim. A proper evaluation and defense of the claim results in lower defense costs incurred by your insurer, potentially lower settlements to claimants, and lower insurance premiums for your company.
Many snow and ice contractors complain of insurance companies settling frivolous claims, resulting in an increase in insurance premiums. You must understand your insurance company is faced with a tremendous number of claims, and needs your assistance and cooperation to defend the claims. Although there are times an insurance company 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. Importantly, the insurance company needs your help. If you do not cooperate with your insurance company, do not complain if the insurance company settles a claim where you feel payment is not required.
Similarly, when I defend a lawsuit, I need the cooperation of my client. If my client is a snow contractor, and is too busy to assist with the 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 or vendor to work at the location where the accident took place, make sure you provide information about the vendor’s services, including the contract with the vendor, to your insurance company. Your insurance company will need to contact the subcontractor, and will also promptly present the claim to the subcontractor’s insurance company. It is important you supply this information, and it is extremely important the information is updated and correct.
If you are a subcontractor and are notified of a claim by the regional snow company for whom you are doing business, promptly place your insurance company on notice of the claim. Notice to your insurance company of any claim is extremely important, and it does not matter whether your notice of the claim comes from the claimant or the regional company for whom you work. Additionally, and importantly, the regional company expects you to address any claims. You risk losing an important source of business if you are not administratively equipped to respond to claims.
When you receive a claim, try to identify your supervisor and employees who were working at the subject location. There are times you may not be aware of a claim until a year or two years after the accident leading to the claim, and at that point, it is likely you are not aware of the employee or employees actually performing the snow clearing and deicing services. However, I have recently found claim 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. Remember, 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 expected testimony with documentation of services, and if possible, with testimony from the supervisor responsible for inspecting the subject location when services are complete.
Never throw away notice of a claim. The person bringing the claim is not going to forget about the claim because you don’t respond to a notice. Equally as important, your insurance company, as discussed above, may decide to deny coverage if by failing to give notice of the claim, you adversely affect the insurance company’s ability to investigate and respond to the claim.
Never try to resolve a claim on your own. Do not think the claim is minor and you can simply give someone $100 and they will go away. It is always better to allow claim professionals, most likely those persons working for your insurance company, to resolve claims. If you have an attorney with whom you are comfortable, you can allow your attorney to speak with the injured party and attempt to resolve the claim, but again, do not fail to give prompt notification of the claim to your insurance company.
Lastly, keep weather and news reports discussing significant storm events. This information is extremely helpful should a lawsuit arise. We are often successful in court defending large claims by arguing claimants venture outside in the middle of snowstorms, claimants fail to take proper precautions for their own safety, it is impossible to catch the snow as it is falling, the snow and ice contractor timely responded and properly performed services, and the contractor is not responsible for any injury or damage suffered in an accident.