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Disputed Matters: Following Proper Claims Procedure and Avoiding Pitfalls

Disputed Matters: Following Proper Claims Procedure and Avoiding Pitfalls. MAISL ANNUAL MEETING THURSDAY, JULY 24, 2014 FRANKENMUTH, Michigan. Presenter : Kevin T. Sutton Lusk & Albertson PLC. Want to download this presentation? Do it now: www.luskalbertson.com/maisl2014. Overview.

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Disputed Matters: Following Proper Claims Procedure and Avoiding Pitfalls

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  1. Disputed Matters:Following Proper Claims Procedureand Avoiding Pitfalls MAISL ANNUAL MEETING THURSDAY, JULY 24, 2014 FRANKENMUTH, Michigan Presenter: Kevin T. Sutton Lusk & Albertson PLC Want to download this presentation? Do it now: www.luskalbertson.com/maisl2014

  2. Overview • Recent confusion regarding what is a “claim” that should be reported • Failure to report a “claim” in a timely manner could result in the denial of coverage • Central question: • When Do I Have a “Claim” That Needs Reporting? • Primary questions to be answered… • What things should you be looking out for? • What do these various things mean? • What should you do when you are confronted with these things?

  3. What to Watch Out For … • Lawsuits • Filed with the circuit court or federal court • Typically served via process server or certified mail • Charges of Discrimination • Filed with the EEOC or Michigan Department of Civil Rights • Typically arrive in the mail, with little fanfare • Demands for Pre-Suit Resolution • Often sent to Superintendent or HR directly Q: HOW ARE THESE DIFFERENT? THE SAME?

  4. Lawsuits Most obvious need for help – you’ve been sued! Send copy of lawsuit to Gallagher Bassett upon receipt Make notation of when you received and how it was delivered Begin gathering documentation/materials Place a hold on destruction of documents, emails Wait for assignment of counsel Cooperate with counsel to defend

  5. Complaint identifies … • The court filed in • The case number • The name of the party bringing suit • The name(s) of the Defendants • The name and contact information of the attorney filing the suit • The specific allegations lodged • The amount of “damages” sought (don’t get too excited)

  6. Charge of Discrimination Typically also called a “complaint” Packet of information to employer A complaint to the EEOC or the MDCR is an allegation by an employee that their employer violated one of the statutes administered by the agency It is the first step in the process that leads to an investigation into the allegation by the administrative agency A complaint to the EEOC or MDCR is not a lawsuit, but it may be the precursor to one

  7. Do I Report an EEOC/MDCR Charge? YES! Not a lawsuit, but a possibility that Charge will become a lawsuit Need to alert carrier about claim when you know about it, receive packet of information Coverage frequently provided for EEOC/MDCR charges under SBLL policy Failure to report Charge could result in denial of coverage later if lawsuit is filed

  8. Complaint Resolution - Good • Once the investigation is complete, a finding is made • If the agency does not find “reasonable cause” to believe a statute has been violated, it will issue a “right to sue letter” • “Right to sue” doesn’t mean district did anything wrong; just advises employee that they can file a lawsuit • Realistic chance of success?

  9. Pre-Suit Demands • Not a lawsuit • Not a Charge • Not filed with anyone • Typically, a letter from an attorney • Threatening a lawsuit • Claiming mistreatment, discrimination, etc. • May enclose a “draft” EEOC/MDCR Charge or Complaint • Expressing desire to “work something out”

  10. Do I Report a Pre-Suit Demand Letter? • YES! • Want to make carrier aware of potential dispute • Coverage may be available • Want to protect coverage if there is a lawsuit • Coverage esp. helpful if decide to mediate - carrier may be able to contribute to resolution • If litigation is inevitable, gives time to get organized, review situation, make coverage determinations early • Time is on your side

  11. Other Events to Watch For • Student injuries • Think big, esp. head • Think about injuries in a global fashion; not just sprained ankles and broken bones • Sexual assault • Employee issues • Harassment/bullying • Hostile work environment

  12. Remember • Is this issue something that it likely to turn into a claim? • Likely? • Possible? • Better to err on the side of caution • Report and have nothing happen • Better than being aware of claim, not reporting, and potentially missing out on coverage

  13. A Difficult Reality • Cannot avoid … • Charges of Discrimination (EEOC/MDCR) • Lawsuits • Demands for pre-suit resolution • Can … • Follow proper procedure to ensure coverage • Prepare your District to be in the best possible position to respond to claims when they arise • Rely on MAISL and partners to navigate treacherous waters

  14. Questions? Kevin T. Sutton 40950 Woodward, Suite 350 Bloomfield Hills, MI 48304-5129 Direct: (248) 988-5695 Cell: (734) 377-7400 Email: KSutton@LuskAlbertson.com

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