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Massachusetts Snow and Ice Related Liability

The legal landscape in Massachusetts continues to get more slippery with the latest Supreme Judicial Court decision that ruled that property owners can be held liable for snow and ice related slip-and-fall injuries, regardless of whether plows cleared the snow or not.  This decision, which goes against a century of case law, makes no distinction between natural and unnatural accumulations of snow and/or ice.  Past cases in Massachusetts courts ruled decided that property owners who failed to remove "natural" snow and/or ice were not held liable for slip and fall injuries.   

The landmark case was that of Massachusetts resident Emanuel Papadopoulos, who sustained injuries when he fell in the icy parking lot of a local Target store in December of 2002.  His initial suit against target and its plowing contractor was dismissed by the lower court.  Citing the 100 years of case law, the lower court judge ruled that Target was not liable since the icy conditions occurred "naturally".  However, the Supreme Court flipped the verdict, ruling that property owners have a duty to keep their property reasonably safe. 

The decision, which brings Massachusetts to the standard of most other states for slip and fall suits, "abolishes the distinction between natural and unnatural accumulations of snow and ice, and applies to all hazards arising from snow and ice the same obligation of reasonable care that a property owner owes to lawful visitors regarding all other hazards". 

In other words, when the snow falls, clear it.  When it melts and ice forms, treat it with salt.  This decision rang through the Massachusetts legal community like a dinner bell, and it will more than likely result in increased slip and fall lawsuits in the state.  With winter not too far away, now is a good time for property owners to review their snow removal strategies and contractual risk transfer arrangements with contractors. 

Temporary Workers - Who is Responsible for Their Actions?

Every business has used temporary workers at one time or another.  The convenience is self explanatory - get a qualified worker for a short period of time, and send them home when you don't need them anymore.  But what are the legal ramifications of using temporary help?  As usual, it's far more complicated than one would think.  The insurance issues with using staffing firms and the legal problems that result can be quite substantial and problematic.  Just like anything else, once you take the time to read the facts, reality becomes evident and beads of sweat start to form on the forehead.  Chris Hawthorne's latest white paper takes a close look at what problems can arise when contracting with staffing firms. 

The Need for Manufacturers E & O Insurance

When I bring up the subject of manufacturers E & O insurance, I am often met with the same response: isn't E & O insurance for technology companies?  While it's true that technology companies are the usual suspects for E & O insurance, many non-technology manufacturers have a significant exposure to E & O risk.  But many insurance buyers suffer from what I call "Paper Blanket" syndrome,where they take comfort from their general/products liability coverage and assume that it will cover them for everything.

Read my white paper on manufacturers E & O to get a better understanding of why it's needed, and how it can affect you if you don't have it.

Department of Labor Updates COBRA Page

The latest COBRA update is out.  The Department of Labor's Employee Benefits Security Administration COBRA page now has available updated Model Notices, Application for Expedited Review of Denial of COBRA Premium Reduction, Fact Sheet, and Frequently Asked Questions (FAQs) that reflect the provisions of the Continuing Extension Act of 2010. These items are available at http://www.dol.gov/COBRA. 

EPA Lead Paint 2010 - Renovation Contractors Beware

Grab your compliance helmet once again, because EPA Lead Paint 2010 is bearing down on renovation contractors.  As of April 22nd, the new EPA lead paint rule went in to effect regarding the disturbance of lead paint in areas that children frequent.  I have talked with a few contractors about this and suffice it to say they are not happy.  Read our white paper for the latest information on the new regulations and what it means to contractors.

Healthcare Reform Passed by House - Now What?

After an historic partisan rumble culminated in a vote late last night, health care reform is on the horizon as either a storm, or as sunshine depending on personal viewpoints.  Once President Obama signs the bill, it will head back to the senate where it is expected to be approved.  What will this mean for Massachusetts?

To start, employers will not be required to offer health insurance, but will face penalties starting in 2014 if low and middle-income workers use federal subsidies to buy insurance. 

Companies that employ more than fifty workers will be penalized if they do not offer health care coverage or if any of their employees use federal subsidies to buy insurance.  The penalty will be $2,000 for each employee starting at employee 31 and beyond.  For example, an employer with 60 employees would pay a $58,000 fine (29 employees x $2,000).

Employers who do offer health care coverage would be required to provide vouchers in the amount of the portion that they would have paid for low and middle-employees so they can obtain coverage through the subsidies.  This would waive the penalties for employees using the subsidies for coverage.  Employees with incomes up to 400% of the federal poverty level, which works out to $88,200 for a family of four, would be eligible for vouchers if they spend between 8 and 9.8 percent of their income on health care premiums.

The bill will provide tax credits starting this year to small businesses that want to provide health care coverage for employees and will also subsidize employer plans that cover early retirees aged 55-64.

Stay tuned, as this is just the beginning of a very long journey.

Debris Removal, Ordinance or Law, and Pollution; The Consequences Following a Covered Property Loss

Everyone likes a surprise.  A pleasant one, that is.  Conversely, there's nothing worse than a bad one.  For example, your business suffers a bad property loss, only to have the loss get worse because of the additional costs that arise out of the initial loss.  That's not a pleasant surprise.  That's exactly the kind of surprise that many businesses have been hit with when they realized that their insurance coverage wouldn't completely cover the costs to remove debris after a fire, or the increased costs associated with complying with ordinance or law.

Our latest white paper, Debris Removal, Ordinance or Law, and Pollution; The Consequences Following a Covered Property Loss  sheds light on some of the problems that can give you one of those bad surprises following direct physical property loss. 

March 1st Creeps Closer, Massachusetts Data Security Law Looms

OK, so we're officially seven days away from 201 CMR 17.00  Even the name of it sounds scary.  201 CMR 17.00 is the official name of the new Massachusetts data privacy laws that are now regarded as the most stringent privacy laws in the country.  The State of California had previously been the standard for such laws, and were considered over-the-top when they came out several years back.  Leave it to the Commonwealth to break the barriers.

Here at TGA, we have completed the audit of our own data privacy exposures and have implemented our written information security plan (WISP) as of today.  It has been somewhat of a tedious task, but not quite as brutal as we feared when the regulations first came to light.  All in all, it was somewhat of a "Nike" situation - Just Do It. So now we can all sit back and rest soundly knowing that these new regulations will stop the data breaches, right?  We'll see.

As you sit back to admire your new WISP, keep in mind that cyber liability insurance is available for those businesses that have high exposure to data breaches, or those who simply like to cover all the angles.  Complying with the regulations is simply a risk management tool to mitigate the risk of data breaches; it doesn't mean that you won't have a data breach.  Cyber criminals are crafty and motivated people that find ways around barriers to get what they want.  Several insurers offer cyber liability coverage, each with their own proprietary form.  The premium will depend on the nature of your business and the overall scope of exposure, i.e. how much sensitive data your business collects and maintains. 

On the flip side, don't think that you can simply buy the insurance coverage and forgo compliance with the law.  There are holes in the coverage that could leave you with some hefty fines if your data breach caused financial loss to a third party.  And hey, who knows if the state is going to actually send inspectors out to check on us?  That's a similar question to - who knows if the state is going to create their own data security laws?

Blogging is a Liability Risk

Yes, it is.  But not this blog, of course!  Seriously, blogging can get an individual or a company in a whole lot of trouble fast.  Blogging is a spirited stallion that is dragging the world around while we try to figure out the ground rules as we eat dust.  Read my Blogging is a Liability Risk white paper to get an idea of what lurks in cyberspace for those itching to lauch an opinion online.

Employee vs Subcontractor - MGL 149

There's nothing like a surprise when the auditor from your general liability or workers compensation carrier informs you that you owe a hefty additional premium because the subs you hired are technically your employees.  Read Chris Hawthorne's white paper to get a better handle on the Massachusetts law that dictates who is an employee and who is not.