Division of Risk ManagementDivision of Risk ManagementFlorida Department of Financial ServicesFlorida Department of Financial Services

Program Information

Division of Risk Management Division of Risk Management Program ResponsibilitiesProgram Responsibilities

Provides six major types of “insurance” coverage to State of Florida agencies by administering a self–insurance fund per Chapter 284, F.S. Processes claims filed against state agencies for these

coverages Collects premiums from participating state agencies

to pay claims Purchases private insurance as necessary to control

risk exposure of state agencies Provides assistance to state agencies in the areas of

loss preventionloss control

Major Coverage Lines ProvidedMajor Coverage Lines Provided

Workers’ compensation state employee injuries Property state owned buildings and contents General liability state agency premises and

operations Auto liability state employees on state business Federal civil rights actions of state officials alleged

to have violated someone’s Constitutional rights Employment discrimination discriminatory

employment practices

Organization of Risk Organization of Risk ManagementManagement

Office of the DirectorState Liability Claims general liability, auto

liability, federal civil rights, employment discrimination State Employees’ Workers’ Compensation Claims workers’ compensation for injured state employees Property, Financial and Risk Services property

claims coverage, loss preventionloss control services, financial support services

What/Who is Extended What/Who is Extended Coverage?Coverage?

State owned buildings and contents

Workers’ compensation (employees, volunteers, and “statutory” employees)

Liability – state employees, agents and volunteers in course and scope of their employment or duties

State owned automobiles and personal autos used in the course and scope of employment

Limits of LiabilityLimits of Liability

Property – pay actual cash value or cost of repairs (whichever is less)(less deductible of $2500)

Workers’ Compensation – pay medical, indemnity and death benefits according to chapter 440

General Liability and Automobile Liability - $100K per person, $200K per occurrence

Limits of LiabilityLimits of Liability

Federal Civil Rights – no monetary limits

Employment Discrimination – subject to limits stated in Title VII, Federal Civil Rights Act of 1991, and Florida Civil Rights Act of 1992

Reporting Claims to Risk Reporting Claims to Risk ManagementManagement

WC claims normally reported by agency WC coordinators or supervisors to our managed care provider – CorVel

Property claims reported by agency property coordinators

Liability claims reported by claimant, their attorney, agency legal office, field personnel, etc.

Managing Claim FilesManaging Claim Files

Property claims are assigned to staff in the Property Section for adjustment

WC claims are assigned to either a WC Examiner (no lost time) or a WC Specialist (lost time claims)

Managing Claim FilesManaging Claim Files

Liability claims are assigned to a Risk Management Program Specialist or Insurance Specialist II

Specialist will request investigative report from agency May utilize outside vendor (York STB) for field

investigative work Determines facts, liability and damages Normally consults with agency about resolution of

claim

Managing Litigation FilesManaging Litigation Files

RM retains a lawyer to defend action (s.284.385) RM notifies agency general counsel when suit

is sent out for defense Governor’s agencies are provided drafts of all

substantive motions or pleadings for review prior to filing Agency legal counsel are kept advised of case

developments

Managing Litigation FilesManaging Litigation Files

Mediation is ordered in most cases (agency will usually send a representative)

Agency legal counsel is consulted about case management and case resolution (s.284.385)

Agency usually sends a representative to attend trials

Agency consulted on post trial decisions

Negligence ClaimsNegligence Claims

Negligence is the commission or omission of an act that a reasonable person would or would not do.

Authority or basis for negligence claims is F.S. 768.28, the state’s waiver of sovereign immunity.

Negligence claims coverages include general liability, auto liability, and professional malpractice.

Facts About Negligence ClaimsFacts About Negligence Claims

Claims must be presented to the agency and DFS in writing, within 3 years from the date of occurrence.

State has 6 months to investigate before suit can be filed.

Monetary limits are $100K per person, $200K per occurrence.

State employees cannot be named personally as long as they were acting in course and scope of employment and were not willful, wanton, malicious, etc.

Auto Liability ClaimsAuto Liability Claims

RM coverage is for liability only – no coverage for damage to state vehicle or employee’s personal vehicle.

Agency must collect for damage to state vehicle when other party is at fault.

Avis assumes all losses for vehicles rented under contract with the state.

RM covers liability of state employees using their personal vehicle in course and scope of employment.

Auto Coverage – Course and ScopeAuto Coverage – Course and Scope

Most state employees are not allowed to use a state car to commute from home to office. Exceptions are agency heads, sworn law enforcement officers, employees subject to call outs for protection of life or property, and employees who work from home. (F.S. 287.17 and FAC Chapter 60B-1.008).

Using state vehicle to go to lunch, doctor, or for personal errands (cleaners, WalMart) is not in course and scope.

Using state car on out-of-town trips for non-essential trips (go to a movie, the mall, etc.) is not in course and scope.

Employees who have a state car may be able to purchase a “non-owned automobile” rider to cover liability when auto is not used in course and scope.

Tips for Preventing Negligence Tips for Preventing Negligence ClaimsClaims

Maintain premises and equipment in a safe condition. Have a scheduled maintenance program.

Warn of all dangerous conditions and defects.

Establish policies and procedures for operations and train employees to follow these policies and procedures, state laws, rules, etc.

Encourage employees to act as a reasonable person would act.

Employment Discrimination Employment Discrimination ClaimsClaims

Employment Discrimination: Treating a person differently with respect to terms, conditions, and privileges of employment due to _________(an unlawful reason).

Disparate Treatment (individuals)

Disparate impact (usually groups)• Neutral policy or practice that has a discriminatory

impact

Both state and federal laws exist that allow claims by state employees against state agencies. Examples are:

Title VII of the Civil Rights Act of 1964• Enacted to eradicate employment on the basis of race,

color, religion, national origin and/or sex. Every aspect on the employment process is covered, including recruitment, hiring, job classifications, transfer, promotion, compensation and termination

Employment Discrimination Employment Discrimination ClaimsClaims

The Florida Civil Rights Act of 1992 (Chp. 760, F.S.)• This act protects employees from discrimination based

on race, color, religion, sex, national origin, age, handicap or marital status

• This act is broader than Title VII and is the only avenue to bring an action for age, handicap or marital status against the state because recent US Supreme Court decisions have held that the Americans with Disabilities Act and the Age Discrimination in Employment Act of 1967 are not applicable to the state (for monetary damages) due to 11th Amendment immunity

Employment Discrimination Employment Discrimination ClaimsClaims

Sexual HarassmentSexual Harassment(A Form of Sex Discrimination)(A Form of Sex Discrimination)

Quid pro quo (this for that): Employee benefits are conditioned on sexual favors (usually supervisor/subordinate)

Hostile work environment: Unwelcomed conduct pervasive and severe

Tips for Preventing Employment Tips for Preventing Employment ClaimsClaims

Examine your claims. Identify problem practices, employees, work units, etc. Correct the problem Have independent, knowledgeable, party review all

employment decisions Make sure employment decisions can be justified

with legitimate, objective, non-discriminatory reasons Document, Document, Document! – Decision-maker

is often not available Educate and train employees about discrimination

and proper employment practices

Section 1983 Imposes Liability On:

Persons (individual state employees), who, acting under color or authority of state law, deprives a citizen of any rights, privileges or immunities secured by the Constitution and laws

Civil Rights ClaimsCivil Rights Claims42 U.S.C. 1983 Claims42 U.S.C. 1983 Claims

Constitutional AmendmentsConstitutional Amendments

1st: right of freedom of speech, press, religion and assembly

4th: security from unreasonable searches and seizures; no warrants issued without probable cause

8th: no cruel or unusual punishments inflicted

11th: states may not be sued in Federal or State court by a citizen unless the state has consented to the suit (does not confer rights – used by states to dismiss suits)

1414thth Amendment – Due Process Amendment – Due Process

Procedural Due Process: State will not deprive a person of life, liberty, or property unless fair procedures are used in making the decision Substantive Due Process: State will not

deprive a person of rights for an arbitrary reason regardless of how fair the procedures used to make the decision Will not deny equal protection of the laws

Importance of s.1983 law to state officials: Claims for monetary damages are against the state

official as a “person” in their individual capacity, not against the state agency; assets of the state official can be taken to satisfy a judgment if insurance program is not available If employee clearly “intended to cause the harm,”

Risk Management cannot provide a defense or pay judgment Risk Management cannot pay punitive damages There are no monetary caps on damage awards Attorney fees and costs can be awarded to

prevailing claimants

Civil Rights ClaimsCivil Rights Claims

Importance of s.1983 law to state agencies

Claims for declaratory or injunctive relief may be brought against agencies

Injunctive relief could cost agency millions and disrupt programs

Attorney fees and costs can be awarded to prevailing claimants

Agency must pay to defend D&I suits

Civil Rights ClaimsCivil Rights Claims

Defenses to FCR ClaimsDefenses to FCR Claims

Employee did not commit the act

Employee did not act under color or authority of state law

Employee actions did not deprive claimant of a constitutional right or privilege

Absolute immunity (Judges, Prosecutors, Legislators)

Qualified or “good faith” immunity

Qualified ImmunityQualified Immunity

Claimant must show employee violated clearly established statutory or constitutional rights of which a reasonable person would have known Would a reasonable employee have thought

their actions were lawful in light of clearly established law and the information they possessed at the time the conduct occurred?

Court ruling – “Should protect all but plainly competent or those who knowingly violate the law”

Tips on Preventing FCR ClaimsTips on Preventing FCR Claims

Examine FCR claims. Determine problem. Take corrective action (training, education, discipline, procedure change, etc.) Educate employees about their rights and the rights

of citizens they deal with. Supervise. Discipline. Examine agency statutes, rules, policies, procedures,

and programs. Make sure they are constitutionally sound and in compliance with state and federal rules Use monitoring systems or have at least 2 staff

members present in “FCR” situations