SIU LIABILITY What is it ? and How to Avoid it !

SIU LIABILITYWhat is it ?andHow to Avoid it ! 10 Tower Office Park Suite 415 Tel.: 781-939-0901 Fax.: 781-939-0902 WWW.ParrParenteau.com

Definition of Liability • A comprehensive legal term that describes the condition of being actually or potentially subject to a legal obligation • It means legal responsibility for one’s acts or omissions

SIU LIABILITY • Failure of a person or entity to meet that responsibility leaves him/it open to a lawsuit for any resulting damages, or a court order to perform the obligation • JOINT LIABILITY – obligation for which more than one person is responsible

SIU LIABILITY • Joint & Several Liability – those who are responsible together as one unit as well as individually for their conduct. • Vicarious Liability – when one person is liable for the negligent act(s) of another person, even though the first person was not directly responsible for the injury.

SIU LIABILITY • Insurer’s Liability to Insureds • Express • Contractual • Policy conditions • Obligations • Implied covenants

SIU LIABILITY • EXPRESS POLICY CONDITIONS • Legal contract between parties; • Insurer agrees to provide benefits to which the insured is entitled; • All parties agree applicable law is part of the policy; • We will pay……. • We will not pay……. • We have a duty…….

SIU LIABILITY • IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING • People will act in good faith and deal fairly without breaking their word, using shifty means to avoid obligations, or deny what the other party understood

SIU LIABILITY • Implied Contractual Obligation of Good Faith • Insurer must not impair rights to receive policy benefits; • Insurer will diligently investigate the facts to determine whether the claim is valid • Insurer will fairly evaluate each claim. • Insurer will not seek to discover only evidence that will defeat claims.

SIU LIABILITY • POTENTIAL CLAIMS AGAINST INSURERS • Contractual – monetary injury • Torts – personal injury

SIU LIABILITY • CONTRACTUAL CLAIMS • Breach of Contract • Bad Faith (G.L. c. 93A and G.L. c. 176D)

SIU LIABILITY • Potential Tort Claims • Intentional Torts – wrong or damage caused deliberately and knowingly.

SIU LIABILITY • DEFAMATION– that which tends to injure reputation; to diminish the esteem, respect, goodwill or confidence in which the injured party is held, or to excite adverse, derogatory or unpleasant feelings or opinions against him. Statements which exposes the person to contempt, hatred, or ridicule.

SIU LIABILITY • ELEMENTS OF DEFAMATION • 1. a publication to one other than the person defamed • 2. a false statement of fact • 3. that is understood as; • A. Being of or concerning the plaintiff; and • B. Tending to harm the reputation of the plaintiff • 4. If the plaintiff is a public figure, he/she must also prove actual malice.

SIU LIABILITY • LIBEL – Written • SLANDER - Oral

SIU LIABILITY • INFLICTION OF EMOTIONAL DISTRESS • INTENTIONAL • 1. the defendant must act intentionally or recklessly; • 2. the defendant’s conduct must be extreme and outrageous; • 3. the conduct must be the cause • 4. of severe emotional distress.

SIU LIABILITY • Extreme and Outrageous? • The conduct must be “so outrageous in character, and so extreme in degree, as to go beyond the bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”

SIU LIABILITY • Trespass – a trespasser is a person who enters or remains on land in the possession of another without a privilege to do so created by the possessor’s consent or otherwise

SIU LIABILITY • At common law Invasion of Privacy encompasses four distinct torts. • 1. intrusion on seclusion • 2. public disclosure of private facts • 3. false light in the public eye, and • 4. misappropriation of a person’s name or likeness.

SIU LIABILITY • INVASION OF PRIVACY • G.L. c. 214 § 1B • RIGHT OF PRIVACY • A person shall have a right against unreasonable, substantial or serious interference with his/her privacy. The Superior court shall have jurisdiction in equity to enforce such right and in connection therewith to award damages.

SIU LIABILITY • STALKING • G.L. c. 265 § 43 • Whoever (1) willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person which seriously alarms or annoys that person and would cause a reasonable person to suffer substantial emotional distress, and (2) makes a threat with the intent to place the person in imminent fear of death or bodily injury, shall be guilty of the crime of stalking.

SIU LIABILITY • Criminal Harassment • G.L. c. 265 § 43A • Whoever willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person, which seriously alarms that person and would cause a reasonable person to suffer substantial emotional distress, shall be guilty of the crime of criminal harassment.

SIU LIABILITY • Stalking and Criminal Harassment • Such conduct, acts or threats described in this paragraph shall include, but not be limited to, conduct, acts or threats conducted by mail or by use of a telephonic or telecommunication device including but not limited to, electronic mail, internet communications and facsimile communications

SIU LIABILITY • CIVIL RIGHTS – DISCRIMINATION CLAIMS • In order to establish a claim under federal or state civil rights laws a plaintiff must not only show that they are members of a minority, but an intent to discriminate on the basis of race, and that the discrimination is part of a pattern of conduct.

SIU LIABILITY • SIU INVESTIGATOR’S USE OF DECEPTION • NO! • NO! • NO! • NO!

SIU LIABILITY • Government investigators may lie to gain investigative advantage. • SIU investigators are governed by the contract of insurance. An insurance contract is a contract of utmost good faith. SIU personnel must adhere to the same rules as any other person involved in claims.

SIU LIABILITY • PRETEXTING • Remember the last slide? • A ruse, lie or deceit most often used to elicit information from someone who would not have otherwise willingly assisted you. • Creating and using an invented scenario to engage a target in a manner that increases the chance the victim will divulge information or perform actions that would be unlikely in ordinary circumstances

SIU LIABILITY • CONDUCT GIVING RISE TO LIABILITY • Interviewing an insured jointly with the police, insured may allege he gave the statement only because he was threatened with prosecution. • SIU investigator threatens criminal charges. • Providing law enforcement with information you advised the insured would be confidential. • Vendor hired by the company flashes a badge and demands favorable testimony from an insured. • Asking law enforcement to intimidate an insured for settlement purposes.

SIU LIABILITY • TOP TEN LIST OF PROPER SIU HANDLING • 1. Be able to explain and justify each and every act and decision made on a claim. • 2. Never say anything bad about your insured to anyone. • 3. Your investigation, and the demands you make upon your insured must be reasonable .

SIU LIABILITY • 4. Never insist law enforcement file criminal charges against your insured. • 5. Be direct and diplomatic with your insured and be objective with all friends, family, neighbors, and witnesses you interview. • 6. Always remember that everything you say, write, or include in your claim or SIU file will, most likely, be discoverable during litigation.

SIU LIABILITY • 7. Follow established SIU procedures. • 8. Investigate all material facts and do not ignore potential witnesses/evidence/information offered by the insured. • 9. Never ignore your insured. Respond to his/her inquiries quickly and in writing whenever possible. • 10. Always provide precise and specific written explanations for a denial or delay.

SIU LIABILITY • Declaration of Homestead • G.L. c. 188 § 1 and 1A • Massachusetts First $500,000 in equity. • If 62 years of age or disabled, each qualified person may file a declaration of homestead and be protected up to $1,000,000.00 in residential equity

SIU LIABILITY • Umbrella Policy of Insurance

SIU LIABILITY • THE ENDTHANK YOU • Jack Parenteau & Audrey Parr

SIU LIABILITY What is it ? and How to Avoid it !