Bringing together a strategic plan to manage a major insurance incident
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Browne Jacobson, London 19 June 2018 Bringing together a strategic plan to manage a major insurance incident.
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Bringing together a strategic plan to manage a major insurance incident
- 1. Managing a serious incident June 2018, London
- 2. Bringing together a strategic plan to manage a major insurance incident
- 3. Major incident response “Tragedy on building site as one worker killed and two people are seriously injured after scaffolding collapses at city construction site” “Company blames dead employee for health and safety failures” “Starc Development were aware of an issue with the scaffolding and did nothing”.
- 4. Regulatory and Civil Investigation Rachel Lyne and James Fawcett
- 5. Crisis Response Protocol Police SIO & HSE Inspector Notices Evidence shared Has it been engaged? Is there one? Contact details Issued? With whom? Make contact Appeal? Copies made? Internal investigation CommencedPrivileged
- 6. Crisis Response Support Conflict Professional Indemnity - D&O Indemnity Joint initial inquiries Regulatory & Civil Can we help? Do you have it? Who? Notify • Experts • Intelligence • Counsel Separate Representation Liaise • Weekly inspections • Audits • Site diary • Witnesses Site Visit Is it possible?Attendance
- 8. Customer company Company Name: Scaffold Construction Limited Registered office: 1 Churchills, Robinson Place, London, LA12 3DA – Address can be confirmed on Duedil and Companies House. It appears the address is a lease hold property for Scaffold Construction Limited. Google street view can confirm a bricks and mortar premises. Land Registry confirms the property was purchased on 23 April 2008 by Daniel Mason and Siobhan Knowles. The purchase price of the property was £300,000. Linked addresses(sites) 123 Harry Lane, London - Intelligence shows a linked address of 123 Harry Lane, London, which was identified through the Directors previous residential addresses is the address registered to Scaffold Building Construction Limited. Telephones / mobiles: 01234 567891 E-mail address: Scaffoldconstruction@gmail.com Companies House number: 123456
- 10. Intelligence
- 11. Any questions?
- 13. Immediate coverage concerns • Duty of fair presentation – the previous fatality • Exclusions / conditions – engagement of sub-contractor • Admission of liability • Failure to take reasonable precautions
- 14. Duty of fair presentation – prior fatality • Duty of fair presentation A fair presentation is a presentation that discloses, in a manner that is reasonably clear and accessible, every material circumstance which is known or ought to be known by an insured’s senior management, including those responsible for arranging the insurance, following a reasonable search.
- 15. Duty of fair presentation – prior fatality• Material circumstance - a circumstance which would influence the judgement of a prudent insurer in determining whether to take the risk and, if so, on what terms • Known or ought to be known - includes actual knowledge of senior management (or that which ought to be known following a reasonable search) • Reasonable search – no definition provided by the Act but will be circumstance and risk dependant
- 16. Duty of fair presentation – prior fatality • Was there a breach of the duty of fair presentation? – probably material – what are the circumstances of the fatality? – would a reasonable search include asking questions of sub-contractors? – did the insured regularly use this sub-contractor? – was the fatality common knowledge on the industry?
- 17. Duty of fair presentation – prior fatality Deliberate or reckless breach of fair presentation? Yes Avoid contract and retain premium No If the information had been properly presented, would the insurer have still underwritten the policy? Yes Would the policy have been written on different terms? If yes, then those terms are applied Would a higher premium have been charged? If so, the claims payment may be reduced No Avoid contract and return premium
- 18. Engagement of sub-contractor • No written contract • Inadequate insurance • Likely exclusions / conditions: – outright exclusion – requirement for: written contract subject to English law and English jurisdiction / arbitration indemnity for acts and omissions minimum insurance requirements
- 19. Other coverage issues • Admission of liability: – policyholder appears to have admitted employee at fault – does that amount to an admission of liability? • Failure to take reasonable precaution: – what due diligence did the insured undertake when appointing the sub-contractor? – concerns raised but appeared to be ignored
- 20. Coffee break
- 21. Quantum Clear early strategy Expert input – early prognostic indicators Rehabilitation Accurate reserve projections Reduce indemnity spend Site Visit
- 22. David Marks Consultant Orthopaedic and Spinal Surgeon Early prognostic indicators
- 50. Any questions?