The Expert Podcast

…If you are a business owner or manager you might be interested in liability protection and know what our defenses against liability claims when it comes to. Business risks liability, whether it's errors and emissions or negligence is one of the biggest things that keeps us up at night. But there's a lot of defenses that you may have against liability claims Now remember we're not attorneys we're not giving you legal advice And although we are, an insurance agency, we're not giving you insurance claims advice This is just general information that you might want to know. and work this out with your insurance carrier or with your insurance agent but there are things to be aware of when you're placing coverage and also operating your business first of all when it comes to defenses against negligence claims, you can argue. That the plaintiff meaning the person that would be claiming against you has some responsibilities to avoid that loss One of them is called the last clear chance. That's the final opportunity to avoid the loss or damage If the plaintiff fails to act. Or caused the damage to themselves. And it's not the bra. of your duty or your image or mission, then that might be a defense against it Some states allow this some don't and of course an attorney would. Would do this but make sure that if you're involved in a. potential. Activity or occurrence that could cause a claim that you're looking for that plaintiff having the last clear chance that's a phrase that's often used in the legal industry. Also there's a. a theory called contributory negligence. It was a defense that used to be used a lot, but now it's been replaced with comparative negligence but a few jurisdictions still. recognize this defense under contributory negligence If the plaintiff is found to have in any way contributed to the loss that they incurred or damages, no damages can be awarded to them. Comparative negligence on the other hand. Ways that proportionate amounts of negligence contributed by all the parties So how much did the plaintiff. Contribute How much did you contribute? So if the plaintiff found to have contributed to the damage, The image is not are not dismissed but they may be reduced by the amount that they contributed to their own loss or their own damage. In some cases a defense is the assumption of risk. A defendant. Has to prove that the plaintiff understood the risks involved. For example, if they're in a risky industry or risky, activity like, you know skiing or snowboarding or skydiving sometimes. plaintiff has said to have assumed the risk and not hold somebody else. liable because they were harmed And again that's a legal determination and usually good. Terms of conditions or waivers include that However on the other side you may actually be a business that has liability without negligence. There are forms of liability recognized by courts without the necessity for the plaintiff to establish negligence. For example a court may award damages based on strict liability. That is an example where…a business is doing something hazardous to begin with For example handling dangerous materials If you're, you know a company that transports dynamite. You may be, have absolute liability If anything goes wrong you knew what you're doing This dangerous, strict liability comes usually from product defect. It's a term first used back in the 1960s. And…it is something where you may have liability for materials or. Products or goods that you produce and if a product defect causes damage or injury that can establish liability without the fact that there was any negligence just the way the product was produced And then you have imputed or vicarious liability That's where another party is held responsible for the negligent parties actions For example, an employer usually is held liable for the actions of their employees under. vicarious liability. So if you're a business and you're looking at what your potential hazards or risks are, these are the types of perils you want to consider and make sure that your. general liability E&O policy whatever you're putting in place. Is considering those if you want them to be covered make sure you work with your agent or broker to to get the right kind of coverage for your business. and include the potential for different types of risks and mitigate those and reduce them ahead of time but have good coverage in case something goes wrong.