MAISL ANNUAL MEETINGTHURSDAY, JULY 24, 2014

FRANKENMUTH, MICHIGAN

Disputed Matters:Following Proper Claims Procedure

and Avoiding Pitfalls

Presenter:Kevin T. SuttonLusk & Albertson PLC

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www.luskalbertson.com/maisl2014

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?

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?

Lawsuits

Most obvious need for help – you’ve been sued!Send copy of lawsuit to Gallagher Bassett upon

receiptMake notation of when you received and how it

was deliveredBegin gathering documentation/materialsPlace a hold on destruction of documents, emails Wait for assignment of counselCooperate with counsel to defend

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)

Charge of Discrimination

Typically also called a “complaint”Packet of information to employerA 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

Do I Report an EEOC/MDCR Charge?

YES!Not a lawsuit, but a possibility that Charge

will become a lawsuitNeed to alert carrier about claim when you

know about it, receive packet of informationCoverage frequently provided for

EEOC/MDCR charges under SBLL policyFailure to report Charge could result in

denial of coverage later if lawsuit is filed

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?

Pre-Suit Demands

Not a lawsuitNot a ChargeNot filed with anyoneTypically, 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”

Do I Report a Pre-Suit Demand Letter?

YES!Want to make carrier aware of potential

disputeCoverage 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 resolutionIf litigation is inevitable, gives time to get

organized, review situation, make coverage determinations early

Time is on your side

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

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

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

Questions?

Kevin T. Sutton40950 Woodward, Suite 350

Bloomfield Hills, MI 48304-5129

Direct: (248) 988-5695Cell: (734) 377-7400

Email: KSutton@LuskAlbertson.com