How to minimize your product liability and exposure through insurance

Shane Moran, vice president, ECBM

Shane Moran, vice president, ECBM

If a manufacturer, distributor or merchant incurs a loss from your product, you need product liability insurance to protect your business. Product liability is generally considered a “strict liability offense” — if your product has a defect, you’re liable.

“Like most things, the devil is in the details. From an insurance perspective, it’s important to look at all of the terms and conditions of your general liability policy,” says Shane Moran, vice president at ECBM.

Smart Business spoke with Moran about the facts of product liability insurance.

What are some product liability claims?

Product claims typically fall into three categories, claims arising from:

  • The manufacturing or production process — opening a can of soup and finding a piece of metal in it.
  • A design failure or hazard — a chair designed with one of its legs significantly shorter than the others.
  • A product that is not adequately labeled as to the potential hazard of the product — the label on a cigarette pack or a warning label on prescription medicine.

Who should have product liability coverage?

Manufacturers are not the only companies with product liability exposure — every company from the manufacturer of the components down to the retailer can be brought into a suit, and potentially has an exposure. A retailer may have an exposure if it assembled or installed the product and didn’t follow the manufacturer’s instructions properly. The retailer also would have a duty to the buyer to test the product for safety.

What possible damages could be awarded?

Your company can be legally obligated for damages to a third party that your product causes. These damages range from bodily injury to property and economic damage, with punitive damages potentially awarded.

You also can sustain loses in terms of recall cost, further product testing, advertising cost to prevent damage to your reputation, and business income and extra expense loss.

Why do some policies cover economic damages, but not punitive or statutory damages?  

When policies cover economic damages, they mean compensation for a verifiable monetary loss, which can include loss of future earnings, loss of business opportunities, loss of use of the property, cost of repair or replacement, loss of employment and even medical expenses.

Punitive damages are awarded for the purpose of punishment, or to deter a reckless decision or action. Typically, they are used when compensatory damages are deemed inadequate. Punitive damage is a tricky area for insurance, as most jurisdictions have ruled that it is uninsurable. You need to examine your commercial general liability policy’s terms and conditions to see whether you have coverage. In most cases, you will find a punitive damages exclusion included.

Why is it a bad idea to underreport sales volume to lower your premium costs?

Most general liability policies are auditable. While an owner may want to use a lower exposure base to keep upfront premiums low, at the end of the day that same owner runs the risk of a large additional premium payment with the audited exposure.

Right after the policy expires, the audit occurs, which coincides with when the deposit premiums are paid. Deposit premiums are usually 25 percent of the total premium, so without using the proper exposure base at the beginning, a company could be looking at a very large outlay of cash in a short time period. This cash flow crunch could cause the cancellation of a company’s insurance for nonpayment.

Most carriers also lower their rates as the exposure base increases. So, by understating your exposure, you could be causing your company to have a higher rate and premium.

What other mistakes do companies make in this arena?

Many business owners think their insurance covers everything. But, for example, you may or may not have a product recall exclusion. The cost associated with recalling a product can be enormous, and you don’t want to find out that you have no coverage when faced with a claim.

If you’re unsure of your coverage, contact your insurance broker and/or risk manager to review the language.

Shane Moran is a vice president at ECBM. Reach him at (610) 668-7100, ext. 1237, or [email protected]

For more information about risk management, see ECBM’s blog.

 

Insights Risk Management is brought to you by ECBM

Jobless claims fall back to pre-storm range

WASHINGTON, Thu Dec 6, 2012 — The number of Americans filing new claims for unemployment benefits fell for a third straight week last week, dropping back to their pre-superstorm Sandy range.

Initial claims for state unemployment benefits dropped 25,000 to a seasonally adjusted 370,000 in the week ended December 1, the Labor Department said on Thursday.

Last week’s drop brought them back to their pre-storm’s 360,000-370,000 range, which economists said suggested there had been no marked weakening in the labor market. They had forecast claims falling to 380,0000.

“We could reasonably assume there is no underlying deterioration or acceleration in the labor market before the storm,” said Pierre Ellis, senior global economist at Decision Economics Inc. in New York.

“We should still have a relative poor payroll reading tomorrow, but we should have some confidence that payrolls would bounce back in December.”

The four-week moving average for new claims, a better measure of labor market trends, rose 2,250 to 408,000, reflecting the impact of the late October storm. That was the highest level since October last year.

Jobless claims fall, give clearer sign of health

WASHINGTON, Thu Oct 25, 2012 – The number of Americans filing new claims for unemployment benefits fell last week, giving a clearer sign that the labor market is healing after wild fluctuations in claims data at the beginning of the month.

Initial claims for state unemployment benefits dropped 23,000 to a seasonally adjusted 369,000, the Labor Department said on Thursday.

The prior week’s figure was revised slightly higher to show 4,000 more applications than previously reported.

A Labor Department analyst said all states submitted data for the report and that there was nothing unusual in the raw data. The analyst said the data showed no signs of the factors that had appeared to generate sharp swings in the claims reading over the prior two weeks.

The four-week moving average for jobless claims, which smoothes out such volatility, rose 1,500 to a 368,000. Economists generally think a reading below 400,000 points to an increase in employment, with hiring likely to outpace layoffs.

The U.S. economy remains hobbled by a persistently high jobless rate. Incomes have stagnated and many families are awash in debts taken on during a housing bubble in the last decade.

Recently, however, the economy has shown a few positive signals, with the unemployment rate falling to 7.8 percent and retail sales picking up. Consumer spirits have also brightened.

Those signs of improvement appear to have done little to bolster President Barack Obama’s bid for a second term, and there is only one more reading on U.S. unemployment before voters go to the polls on Nov. 6.

Earlier this month, claims swung sharply lower and then higher, which a Labor Department analyst said was likely due to a change in the seasonal pattern that usually manifests at the beginning of the quarter. That distortion in the seasonal data appears to a have passed, the analyst said on Thursday.

Jobless claims hint labor market improving gradually

WASHINGTON, Thu Oct 18, 2012 – The number of Americans filing new claims for jobless benefits spiked last week, reversing a sharp decline in the prior week but still pointing to a labor market that is slowly healing.

Other data on Thursday showed a modest rebound in factory activity in the U.S. mid-Atlantic region.

Initial claims for state unemployment benefits rose 46,000 last week to a seasonally adjusted 388,000, the Labor Department said.

Despite the spike, a four-week moving average that smoothes out weekly volatility was down from a month earlier, suggesting the lackluster job market recovery remains on track.

“Improvement in the labor market will continue to be fitful and slow,” said Joseph Trevisani, a market strategist at Worldwide Markets in Woodcliff Lake, New Jersey.

The economy has recently shown signs of modest strength, with the unemployment rate falling to 7.8 percent in September and retail sales pointing to a pick-up in consumer spending.

A gauge of future economy activity rebounded in September to post its largest gain in seven months, the Conference Board said in a separate report.

Tropical Storm Isaac boosts jobless claims

WASHINGTON, Thu Sep 13, 2012 – The number of Americans filing new claims for jobless benefits rose more than expected last week, with several states reporting an increase related to Tropical Storm Isaac.

Initial claims for state unemployment benefits rose 15,000 to a seasonally adjusted 382,000, the highest in two months, the Labor Department said on Thursday. The prior week’s figure was revised up to show 2,000 more applications than previously reported.

Economists polled by Reuters had forecast claims rising to 370,000 last week.

A Labor Department official said Tropical Storm Isaac, which drenched parts of the country, accounted for about 9,000 of the claims filed last week. The number is unadjusted.

But even accounting for the storm, the report suggested little improvement in the labor market after job growth slowed sharply in August. The four-week moving average for new claims, a better measure of labor market trends, climbed 3,250 to 375,000, the highest since the middle of July.

Employers added 96,000 jobs last month, a step down from July’s 141,000 count. While the unemployment rate dropped to 8.1 percent in August from 8.3 percent, it was because Americans gave up the search for work.

The sluggish labor market is seen prompting the Federal Reserve to announce a third round of bond purchases at the end of a two-day policy meeting later on Thursday.

The unemployment rate has been stuck above 8 percent for more than three years, the first time this has happened since the Great Depression.

BP in $7 billion asset sale talks with Plains Exploration: source

NEW YORK, Mon Sep 10, 2012 – BP is in talks to sell some of its Gulf of Mexico oil fields to Plains Exploration & Production Co for roughly $7 billion, a person familiar with the matter said on Sunday, as the U.K. oil firm looks to raise money to pay for damages from the 2010 oil spill.

The amount BP will have to pay in damages for the Deepwater Horizon oil spill – America’s worst ever – is still in dispute. But last month the U.S. Justice Department accused the company of gross negligence and willful misconduct over the spill, a position that could lead to nearly $21 billion in civil damages if a federal judge agrees.

BP said in May that it was looking to sell a number of mature fields in the Gulf of Mexico, including its positions in the Marlin, Horn Mountain, Holstein, Ram Powell, and Diana Hoover fields.

A deal would be transformational for Houston-based independent oil explorer and producer, Plains, which had a market capitalization of $5.2 billion as of Friday. The company already has assets in the Gulf, as well as in California, Texas, Louisiana, and the Gulf of Mexico.

Like many other independent U.S. oil and gas companies, Plains has been working to build up its oil assets, as the price for U.S. natural gas has been in a prolonged slump. It had previously estimated that about 57 to 60 percent of its 2012 production would be oil.

The Wall Street Journal, which earlier reported news of the talks, said a deal could be announced as soon as this week.

Jobless claims fall to lowest level in a month

WASHINGTON, Thu Sep 6, 2012 – The number of Americans filing new claims for jobless benefits fell last week to its lowest level in a month, an upbeat signal for a labor market that has struggled to create enough jobs.

Initial claims for state unemployment benefits dropped 12,000 to a seasonally adjusted 365,000, the Labor Department said on Thursday.

It was the first drop in new claims since the week that ended August 4 and the lowest level since then as well.

Economists polled by Reuters had forecast claims dipping to 370,000 last week. The prior week’s figure was revised up to show 3,000 more applications than previously reported.

However, the four-week moving average for new claims, a better measure of labor market trends, edged up to 371,250.

A Labor Department official said there was nothing unusual in the data and no sign Hurricane Isaac affected the level of claims. The storm hit the U.S. Gulf Coast last week, disrupting business at the region’s ports, airports and oil refineries.

The report has no direct bearing on Friday’s monthly employment report for August, which is expected to show nonfarm payrolls rose by a modest 125,000 last month, while the unemployment rate is seen staying the same at 8.3 percent.

How to reduce ultimate workers’ compensation spend through settlements and handicaps

Lisa O’Brien, Director of Rates and Underwriting Services, CompManagement, Inc.

Settlement of a claim and a handicap reimbursement award are two cost containment strategies available to employers to manage claim costs and impact annual premiums. A settlement fixes the claim cost, which then allows the premium to reflect the settlement amount and possibly reduce the employer’s premium. If a handicap award is granted, a portion of the costs of the claim will be charged to the Surplus Fund and not to the employer’s experience.

“By removing costs from an employer’s experience, an employer may be able to lower its annual premium rate calculated by the Ohio Bureau of Workers’ Compensation (BWC), thus reducing its annual spend,” says Lisa O’Brien, director of rates and underwriting services for CompManagement, Inc. “Employers should always review these two very effective cost containment strategies when managing their workers’ compensation claims to make an impact to their bottom line.”

Smart Business spoke with O’Brien about these cost containment options available to employers in Ohio.

What is a settlement?

A settlement is an agreement among the employer, the injured worker and the BWC for a specific amount to settle one or more workers’ compensation claims. All three parties must agree to the settlement amount before a claim can be settled either in full, which settles all allowed conditions and benefits, or a partial settlement, which settles only certain conditions and/or benefits, either medical or indemnity (compensation).

What happens when a claim is settled?

When a claim is settled, the injured worker will receive a lump sum payment from the BWC.  Settlement affords injured workers the freedom to manage their treatment priorities, on their timeline and on their schedule.

If the claim is settled for both the indemnity and medical portions, the injured worker will receive no additional compensation or medical benefits in the settled claim. If the claim is settled for either medical only or indemnity only, the injured worker can no longer receive the benefit type that has been settled (either medical or indemnity).

For employers, settlement can help manage costs and bring closure to a claim for their employee. Settling the claim removes reserves (indemnity, medical or both depending on the type of settlement) associated with the claim from all future rate-making. However, costs already paid out, plus the settlement amount, will continue to be charged to and impact the employer’s premium rate.

When will a settlement impact the employer’s premium?

Settlement of a claim will affect an employer’s premium rate only going forward. In order for a settlement to be included in the employer’s upcoming year’s rate, the fully executed settlement application (signed by both the employer and the injured worker) must be filed by May 15 for public employers or by Oct. 15 for private, state-funded employers.

These deadlines do not apply for settlements that occur through the court of common pleas. Common pleas settlement inclusions in the employer’s experience are based on the date the settlement is paid.

For a court of common pleas settlement to be included in an employer’s upcoming rates, the settlement must be paid to the injured worker before the applicable survey date, June 30 for public employers and Dec. 31 for private employers.

 

What is a handicap reimbursement?

The BWC encourages employers to hire and retain employees with handicapped conditions. To help offset the challenges those with handicaps often experience in the job market, the BWC offers the Handicap Reimbursement program as a means for employers to reduce their claim costs. Ohio law defines a handicapped employee as one who has a physical or mental impairment, whether congenital or due to injury or disease, whose impairment jeopardizes the person’s ability to obtain employment or re-employment. Also, the impairment must be due to one of the 25 eligible diseases or conditions that Ohio law recognizes.

The most commonly recognized conditions are arthritis, ankylosis, diabetes, cardiac disease and epilepsy.

When should an employer file an application for handicap reimbursement?

If an injured worker suffers a lost-time claim (eight or more days away from work) and a handicap condition is met, the employer can file a CHP-4 application with the BWC requesting reimbursement of claim costs charged. The employer must show the handicap is a pre-existing condition (prior to the date of injury) and that it either caused the claim or contributed to increased costs or a delay in recovery. Applications are reviewed and awards are granted by the BWC’s Legal Operations Department. Once awarded, the BWC will apply the handicap reimbursement award to chargeable claim costs, thereby reducing costs and possibly premium rates.

Private, state-funded employers must file handicap reimbursement applications by June 30 of the calendar year no more than six years from the year of the date of injury. Public employers must file handicap reimbursement applications by Dec. 31 of the year no more than five years from the year of the date of injury.

Claims with a handicap reimbursement can be settled and settled claims can continue to be considered for handicap reimbursement.

What is the typical range of handicap reimbursements awarded?

Per BWC public information, handicap reimbursements typically range between 5 and 100 percent, depending on the degree to which the handicap condition impacts the claim. On average, current public information shows a handicap award to be approximately 26.17 percent.

Lisa O’Brien is the director of rates and underwriting services for CompManagement, Inc. Reach her at (800) 825-6755, ext. 65441, or [email protected]

Insights Workers’ Compensation is brought to you by CompManagement

Jobless claims rise, labor market healing very slowly

WASHINGTON, Thu Aug 23, 2012 –The number of Americans filing new claims for jobless benefits unexpectedly rose last week, suggesting the labor market is healing too slowly to make much of a dent in the unemployment rate.

Initial claims for state unemployment benefits rose 4,000 to a seasonally adjusted 372,000, the Labor Department said on Thursday. That was the highest level in five weeks.

The data keeps pressure on President Barack Obama ahead of his November re-election bid. His Republican challenger is trying to focus voters’ attention on a lofty unemployment rate that has dogged Obama’s presidency.

Many economists think the Federal Reserve could unveil a new bond buying program to prop up economic growth as soon as its next meeting Sept 12-13, although an improvement in hiring this month could make that less likely.

The report on jobless claims did have a silver lining, however.

The data covers the same week looked at by the government for its monthly measure of employment, and showed a slight drop in layoffs from the survey week last month, which is a mildly positive signal for hiring in August.

The four-week moving average for new claims, a measure of labor market trends, was 368,000 last week. That was a slight increase from the prior week, but still 2.1 percent lower than in the second week of July.

Jobless claims fall first time since April, labor market still on mend

WASHINGTON, Thu Jun 7, 2012 – The number of Americans lining up for new jobless benefits fell last week for the first time since April, a reminder that the wounded labor market is still slowly healing.

Initial claims for state unemployment benefits dropped 12,000 to a seasonally adjusted 377,000, the Labor Department said on Thursday. That was spot on the median forecast in a Reuters poll.

The government revised the prior week’s figure up to 389,000 from the previously reported 383,000.

Prior to last week, claims had risen in four consecutive weeks, adding to concerns over several months of lackluster hiring data. While the country emerged from a deep recession three years ago, the jobless rate last month was 8.2 percent, well above its long-term historical average.

Still, most of the recent increases in new jobless claims were marginal and the overall level of claims has held at levels consistent with a modest recovery in the labor market.

The last time claims fell was in the week that ended April 28. The four-week moving average for new claims, a measure of labor market trends, increased 1,750 last week to 377,750.

The claims report comes ahead of congressional testimony scheduled for later in the day by Federal Reserve Chairman Ben Bernanke, where he could give clues about the likelihood of further policy easing.

On Wednesday, Janet Yellen, Bernanke’s deputy and the vice chair of the Fed, laid out the case for the central bank to provide more support to a fragile economy as financial turmoil in Europe mounts.