RM33: Be in the Winner’s Circle: Lessons Learned from Large Losses

1. APRIL 3-6, 2013, LONG BEACH, CA RM33: Be in the Winner’s Circle: Lessons Learned from Large Losses These materials have been prepared by the CASBO Risk Management Professional Council (or CASBO Associate Member). They have not been reviewed by State CASBO for approval, so therefore are not an official statement of CASBO.

2. Introductions Eric Lucas, JD, CPCU, ARM Interim Chief Executive Officer Schools Excess Liability Fund Dan Mellon, ARM-P Director Risk Management and Human Resources Chino Valley USD Executive Committee President SCSRM Neal Meyers, Esq. Partner Meyers Fozi, LLP 2013 CASBO ANNUAL CONFERENCE & SCHOOL BUSINESS EXPO

3. What is a “Large Loss”? • From excess carrier’s perspective, a claim that might touch the excess layer at any time during the course of litigation • From the school’s perspective, any claim that might exceed its self-insured retention (SIR) or primary insurance limits or that might be an uncovered loss • Politically charged or matter of significant community concern

4. Common “Large Loss” Claims • Catastrophic injury such as death, brain trauma, loss of use of limbs • Molestation, sexual abuse and assaults • Environmental contamination and exposures • Employment claims • Any claim that allows for recovery of attorney’s fees

5. Lesson One:Early Intervention • Robust early fact and document investigation • Don’t learn the bad facts just before trial if an early investigation can find them • Early expert analysis? • Attorney initial opinions and analysis • Obtain a realistic litigation budget • Be objective and not defensive • The politics can be difficult • Put your excess carrier/reinsurer on notice • Pre-lawsuit mediation/case intervention

6. Lesson Two:Don't Forget Your Excess Carrier/Reinsurer • Notice. Notice. Notice. Notice. Notice. • Your excess carrier is your friend and could be your savior, don’t forget them • Consequences of late or no notice • Get to know early your excess provider, excess claims manager, members of the excess claims committee

7. Lesson Two:Don't Forget Your Excess Carrier/Reinsurer • Team with your excess carrier early in a large loss • Regular reports • Significant events • Continuous re-evaluation • Immediate notice of settlement conferences and mediations • Excess monitoring counsel, if assigned • Remember, the excess has it own job to do to protect its program too • Understand excess pool/carrier contract obligations and settlement control rights

8. Lesson Three:Large Loss Control Strategies • Very early and meaningful CCP 998 or Federal Rule 68 offers of compromise in cases that may award attorney’s fees • Use them to create risk that fees may not be awarded • Early analysis and evaluation of MediCare conditional payments and set-asides • Well before mediation, if possible • SMART Act

9. Lesson Three:Large Loss Control Strategies • Mock trial and related jury behavior analysis pre-mediation and trial • Witness assessment • Valuation assessment • Helps develop trial strategy • Government code 985 collateral source set-off assessments and pre-settlement conference notices to providers • Hanif/Howell cost reductions and in limine strategies

10. Lesson Four: The “Courthouse Steps” and Post-trial Strategies • “Courthouse steps” remain a powerful settlement tool against plaintiff • Good or bad in limine rulings • Is that “good evidence” getting in after all? • Is that “bad” evidence getting in that shouldn’t be? • During trial • Post trial • New Trial Motions • Set-off and periodic payment motions • Appeal

11. Case Discussions