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60 th Annual School for Highway Superintendents. Record Keeping & Liability Robert Bambino NY Municipal Insurance Reciprocal June 7, 2005 Ithaca College. What We’ll Cover:. Insurance Coverage for Highway Employees Claims Reporting Prior Written Notice Sidewalk/Tree Inventories

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60 th annual school for highway superintendents

60th Annual School for Highway Superintendents

Record Keeping & Liability

Robert Bambino

NY Municipal Insurance Reciprocal

June 7, 2005

Ithaca College


What we ll cover
What We’ll Cover:

  • Insurance Coverage for Highway Employees

  • Claims Reporting

  • Prior Written Notice

  • Sidewalk/Tree Inventories

  • Employee Record Keeping


Why this topic
Why this Topic?

  • Poor record keepingcan establish liability

  • It often implies liability or fault

  • It creates an appearance of disorganization

    Why?

    However …

    When done properly – it can help prove facts

    or win a law suit.



1 insurance coverage
1. Insurance Coverage

General Liability Policy

  • Includes employees as “insureds” for accidents that arise out of employment for the Town. Includes defense and indemnification.

    Automobile Liability Policy

  • Anyone using a covered auto with permission

    Public Officials Policy

  • Employees as insureds

    Excess Insurance

  • Additional limits of coverage above the liability policies


2 record keeping claims reporting

Contractual Requirements

Report claims

(or potential claims) promptly

Forward legal papers immediately

Safeguard damaged property

Claims Management

If possible – protect evidence (store or photograph)

Don’t speak with investigators or attorneys unless they are properly identified

2. Record Keeping: Claims Reporting


3 prior written notice pwn
3.Prior Written Notice (PWN)

  • PWN laws require written notice as prescribed in the law to the Town Clerk or Town Superintendent of Highways

  • They don’t prevent accidents – they help win lawsuits

  • In general – actual notice isn’t sufficient to create liability (major exception: Town creates the condition)


Pwn record keeping

Superintendent of Highways

Record date, location and reported defect

Refer to Clerk

Keep copy of the notice

Record response (repairs, removal, etc.)

PWN – Record Keeping


What is reasonable time
What is “Reasonable Time?”

“…address the removal of the defect withina

Reasonable period of time…”

  • Nature of defect

  • Workload

  • Staff

  • Budget

  • Miles of streets/roads Town maintains

    …ultimately – it’s a question for the jury to decide


Pwn sidewalks transferring liability to property owners
PWN – Sidewalks: Transferring Liability to Property Owners

  • Towns can transfer responsibility for sidewalk repair/ maintenance to property owners

  • Towns can pass tort liability to property owners as well

  • Local ordinance must specifically mention tort liability – not just repair and maintenance


Challenges to the pwn defense

Telephone/ Walk-In Notices

Don’t accept as formal notice

Give complainant a copy of the PWN law

Check out defect regardless

Defects in PWN

Doesn’t include a reference to snow and ice conditions

Doesn’t include a reference to the clerk or highway superintendent

Challenges to the PWN Defense


4 sidewalk tree inspections and inventories

Sidewalks

Prioritize in terms of the potential for injury

-- location

-- severity

Then repair, replace or cordon off

Trees

Keep an inspection record

-- can be part of supervisor’s daily log/notes

Indicate why tree wasn’t removed

Usual issue if there is a claim: “If you inspected a tree, why didn’t you take it down?”

4. Sidewalk/Tree Inspections and Inventories


5 documentation and employee record keeping

Snowplow Operations

Dates, employees (or contractors) and routes

Helps prove what roads were paved – or not paved – why and when

Contractors

Maintain contracts and work records

Certificates of insurance also

If Town has additional insured status – notify the insurer if an accident occurs

5. Documentation and Employee Record Keeping


Documentation and employee record keeping
Documentation and Employee Record Keeping

  • Inconsistency = creates problems

  • Records are subject to scrutiny during complaints hearings and litigation

  • Affects wrongful termination claims:

    -- If fired for cause

    -- If basis for civil service hearing


Employee record keeping
Employee Record Keeping

  • Records must reflect actual performance

    -- if employee has weaknesses/performance issues – personal reviews must reflect the issues

    -- if late, absent/ time sheets must reflect it

    -- if counseling sessions held – memorialize the discussion

  • E-mail and Internet Sites

    -- permanent record


Questions
Questions?

This Presentation is on NYMIR Web Site:

www.nymir.org

In the Risk Management Section