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Things Your Defense Attorney Wishes You Knew

A RIZONA M UNICIPAL R ISK R ETENTION P OOL. Things Your Defense Attorney Wishes You Knew. August 29, 2013 Lisa Wahlin, Ryley, Carlock & Applewhite Bill Doyle, The Doyle Firm Andrew Petersen, Humphrey & Petersen Rich Cohen, Jackson Lewis. Context.

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Things Your Defense Attorney Wishes You Knew

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  1. ARIZONA MUNICIPAL RISK RETENTION POOL Things Your Defense Attorney Wishes You Knew August 29, 2013 Lisa Wahlin, Ryley, Carlock & Applewhite Bill Doyle, The Doyle Firm Andrew Petersen, Humphrey & Petersen Rich Cohen, Jackson Lewis

  2. Context • Information from the Arizona Municipal Risk Retention Pool • Credible data spanning 26 years of municipal participation • Panel of experts in municipal defense

  3. Context • Over 70 percent of premium paid to AMRRP goes directly to claims related expenses • Claimants & attorneys • Doctors, hospitals, providers • Plaintiff attorneys • Expert witnesses, fraud investigation • The only true way to pay less is to avoid claims

  4. Context • In 2012, AMRRP paid over $8.5 million in liability loss costs • 2012 liability premium collected was just over $13 million • In 2012, AMRRP paid nearly $7.6 million in workers’ compensation loss costs • 2012 workers’ compensation premium collected was just over $9.8 million

  5. Liability Which liability claims are most costly for Arizona cities and towns? • Police (e.g. excessive force or civil rights) • Negligent road design and maintenance • Employment claims • Public officials D&O (including contracts, land use decisions) • Slips and falls on city/town property • Automobile accidents

  6. Today’s Areas of Focus • Police Liability: Multi-Agency Use of Force Exposures • Public Officials D & O: Avoiding Liability for Acts of Consultants • Street/Road Design/Maintenance: Risk Transfer • Employment: Terminations

  7. Police Liability: Multi-Agency Use of Force

  8. Police Liability • Multi-agency Use of Force Scenario • Prepare for incidents BEFORE they happen • Policies • Training • Anticipate issues when working with other agencies

  9. Police Liability • Multi-agency Use of Force Scenario • Prepare for litigation after an incident happens • Documentation • Investigation • Preservation • Statements to the public or press • Post-incident review

  10. D & O Exposures: Avoiding Liability for Acts of Consultants

  11. Occurrence with Significant Exposure • Attorney directed investigation • Identify and interview potential witnesses • Secure pertinent records and documentation • Preliminary evaluation of exposure

  12. Claims Involving Consultants Supervising Municipal Employees • Identify basis for claim – independent claim against consultant or vicarious for employees • Has consultant agreed to indemnify or provide AI coverage • Tender to consultant, if appropriate

  13. Pre-Incident Mitigation Efforts • Confirm consultant’s qualification • Confirm employees qualified to do work • Establish clear chain of command • Implement and enforce documentation policies and procedures

  14. Exposure due to Inadequate Documentation • “If it’s not documented, it wasn’t done” • Unable to identify witnesses to defend conduct • Appearance of lack of care

  15. Exposure Due to Consultant’s Safety Recommendations • Consultant acting as town representative recommended installation of a crosswalk by a date certain • Failure to timely act on recommendation created exposure when accident occurred • Mitigate by monitoring and tracking recommendations

  16. Practice Pointers • Confirm contractual indemnity in subcontracts with consultants • Confirm AI coverage is obtained • Timely implement safety recommendations • Timely and accurate documentation

  17. Street/Road Design Maintenance: Risk Transfer

  18. Transferring Risk • Non-delegable duty • Assumed duty

  19. Transferring Risk • Ways risk may be transferred to a responsible tortfeasor • Local ordinances • Hold harmless agreements • Indemnity provisions • Contracts • Additional insured provisions • Other insurance • Intergovernmental agreements

  20. Employment Liability: Terminations - High Risk/High Rewards

  21. Terminations • High risks for the employer • High rewards for the plaintiff’s lawyer and former employee

  22. Terminations • “But he was an at-will employee” • No need to worry about a breach of contract claim • That only leaves constitutional, federal and state discrimination and AEPA claims (and more!)

  23. Terminations • “But we had good cause” • The proper analysis is not that simple and good cause may not be good enough • Will any claim survive a summary judgment motion? • Jurors are very different from hiring officers • Was the termination fair? Will sympathy dominate? • Is it likely the case will settle? • What’s the exposure – monetary and non-monetary?

  24. Terminations • Did the plaintiff receive due process? • Pre-termination “hearings” • Post-termination appeal hearings (as an aside, should the Council decide the appeal?) • Caution: even a very technical violation can be expensive

  25. Questions or Comments?

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