Question from an IIABNY member: We were having a bit of a geeked out conversation in our
office today. It centered around paragraph 2 of the employers liability
exclusion in the Commercial General Liability policy. It is supposed to exclude immediate family from bodily injury while the employee is performing his duties. (This was after acknowledging that
spouses were never covered for BI for individuals and partnerships).
So let’s say my employee’s wife visits while he’s working
(we are a corporation). She trips and falls in his office doorway. Is that covered under the Employers Liability Coverage in the Workers' Compensation policy, or is that CGL? Also, how would it work if my employee was delivering
something for me, and he stopped to pick up his wife and kids. Then,
while making the delivery, he has an accident. When would it be covered by the Business Auto Policy as
opposed to the WC?
Answer: My heart is always warmed by stories of insurance geeky conversations in the office...
The complete EL exclusion in the CGL policy states:
This insurance does not apply
(1) An "employee" of the insured arising out of and
in the course of:
(a) Employment by the insured; or
(b) Performing duties related to the conduct of the
insured's business; or
(2) The spouse, child, parent, brother or sister of that
"employee" as a consequence of Paragraph (1)
exclusion applies whether the insured may be liable as an employer or in any
other capacity and to any obligation to share damages with or repay someone
else who must pay damages because of the injury.
exclusion does not apply to liability assumed by the insured under an
Coverage does not apply to bodily injury to
an employee’s spouse, child, parent, or sibling that results from bodily injury
to the employee, if that injury arises out of the person’s employment by the
insured or while in the course of performing employment-related duties. Key
point: The family member’s injury has to be a consequence of the employee’s
injury. The policy defines “bodily injury” as “bodily injury, sickness or
disease sustained by a person, including” resulting death. According to the International
Risk Management Institute, the intent of paragraph (2) is to
exclude “claims from
the employee's family members for loss of consortium, companionship, etc., as a
consequence of an employee's bodily injury.” I can also imagine a scenario
where an employee contracts a disease at work and passes it on to a family
member or injures a family member during a fainting spell. The CGL would not
cover either of those events.
Regarding your last question, no-fault coverage generally applies to injuries suffered in an auto accident, but no-fault benefits apply in excess of Workers' Compensation benefits.
Whether it’s a hurricane, wildfire, severe winter weather, earthquake, or other disaster, the I.I.I.’s “Know Your Plan” app for iPhone provides check lists and vital safety tips to help users prepare for catastrophe before disaster strikes.
“Know Your Plan” provides consumers with a library of preloaded checklists to learn about important property protection and preparedness steps. Customized lists can also be built from scratch.
Each checklist gives users options to set task completion dates, chart their progress and make additional notes for individual tasks.
One of the cool features of the app is that in the event of a disaster, users will be able to access a geotargeted emergency alert feed guiding them to up-to-the-minute information about local evacuation routes and other details about the disaster.
This is cool in so many ways. First, it gives consumers specific steps they can take to help themselves survive a catastrophe. Second, it is a fine example of a supposedly technophobic industry (insurance) using modern technology to help its customers. Third, this is about the insurance industry helping people with no apparent industry benefit -- no higher premiums, no denied claims. Yes, the industry benefits from smaller losses, but so do its customers.
I intend to install this app on my iPhone at my first opportunity, and I encourage everyone reading this blog to let their clients know about it.
Not everyone working at an elevated height has a cause of action under New York's scaffolding law, according to an appellate court decision handed down on Tuesday:
Plaintiff house electrician was engaged in routine maintenance work when he fell from a ladder affixed to a scissor lift after fixing a light fixture (see Monaghan v 540 Inv. Land Co. LLC, 66 AD3d 605 ). Indeed, plaintiff testified that he fixed light fixtures about twice weekly, that "nine out of ten times" the house electricians would change the whole fixture when performing such work, and that he retrieved sockets and bulbs from the building's storage area in order to perform his work. Further, his subforeman stated in an affidavit that the high-voltage nature of the lights caused the sockets to deteriorate, requiring them to be replaced on a regular basis, which necessitated keeping a large volume of sockets in stock on the premises. [*2]Accordingly, plaintiff's work clearly involved "replacing components that require replacement in the course of normal wear and tear" (Esposito v New York City Indus. Dev. Agency, 1 NY3d 526, 528 ).
Apparently, someone engaged in routine maintenance is not engaged in construction, at least within the meaning of New York Labor Law Section 240. We tend to think of the scaffolding law as being a black hole into which contractors fall and automatically become liable for hundreds of thousands of dollars. As this case illustrates, the law is a little more complex than that.
This year marks the 20th anniversary of Hurricane Andrew, the category 5 hurricane that devastated South Florida on August 24, 1992. It’s important to note that Andrew was the first storm in a late-starting season that produced only six named storms.
To this I would add the following: It has been an unusually hot summer here in the mid-Atlantic states. The waters of the North Atlantic likely are not as cold as they might normally be in August. Warmer water = more fuel for storms. A Long Island agent voiced these concerns to me just a few weeks ago. All things being equal (and I'm not factoring in the effects of El Nino,) the hotter summer would appear to increase the odds that a major storm will hit the New York City metro area and New England.
No one in New York is anxious to see the cousins of Tropical Storms Irene and Lee pay us a visit, but we shouldn't be terribly surprised if they do.
Questions continue to pour in about how to work with the mechanics of the Health Care Reform. We list a few here that might help guide your group health plan administration:
How would several 10-15 hour per week employees be defined?
For purposes of determining large employer status, an employer would aggregate part-time employee and then divide by 30 to determine the number of full-time equivalents. Part-time employee hours are used to determine the full-time equivalent for purposes of determining of an employer is "large," but the employer does not have to pay a penalty for part-time employees.
Once an employer drops a plan and pays the penalty, are employers able to reinstate a plan in future years, or are plans no longer an option once the employer has paid the penalty?
The employer would be able to start a new plan. Once the employer offers qualifying health coverage, the penalties would cease.
When is the non-discrimination clause effective?
Health Care Reform initially required compliance with the nondiscrimination rules for insured plans for plan years beginning on or after September 23, 2010. However, IRS Notice 2011-1 provides that employers can postpone compliance until the agencies have issued regulations or other guidance regarding the rules.
Will the employees need to enroll their dependents to avoid the penalty when they file their taxes?
Dependents will be required to have coverage, although the coverage does not have to be through the employer’s plan.
Just yesterday, our colleagues Dana Thrasher and Bob Ellerbrock conducted a webinar that discussed the impact on company operations, now that the United States Supreme Court has weighed in on health care reform in its June 28 decision. That webinar prompted some pressing questions, some of the general ones are here (more complex fact patterns need more analysis than a Q&A can provide). We edited listeners' questions only for clarity. Yet, this is what people in the field want to know -- the practical details tied to daily operation of health plans, at this juncture:
Is the part-time employee aggregate penalty applicable if we offer health benefits to only full time employees?
All employees, whether part-time or full-time, are counted towards the Full Time Equivalent (FTE) total. Once the employer gets the FTE total, it subtracts the first 30 FTEs, to arrive at the total FTEs against which to multiply the $2000 penalty.
Is the 50 employee threshold assessed by EIN (employer identification number) or by commonly owned entities? If you have one owner of two S-Corps each with 30 FTE, are you a large employer?
The FTE count is across control group members. One owner of two S-Corps in your example would have 60 FTEs.
Do vacation hours count towards FTE calculations?
Yes. We believe that any paid working hours are counted towards FTE calculations.
The “penalty” only applies to large employers." Please define "large employer."
A large employer is one with 50 FTEs or more. An FTE is one who works 30 hours or more. Part-time employee hours are added to determine FTE count. Three part-time employees who work 10 hours each becomes one FTE.
If an employee refuses insurance offered by employer, and wants to purchase insurance through an exchange, will the employer be required to assist in the payment voucher through the exchange?
No. If the employee declines the employer’s plan, the employer has no payment obligation with respect to the exchange.
I stumbled on this blog today completely by accident (thank you, Twitter!). This law firm is answering some quite nitty-gritty questions about the Affordable Care Act. I'm posting part one in its entirety here. Part two will be the substance of my next post.
I encourage all you have an interest in this subject to check out the blog.