In the 20-plus years that NBIS has been insuring the heavy-construction industry, we’ve learned a thing or two about successfully managing claims. We learned early on that heavy construction industry claims are vastly different than traditional business insurance claims, particularly in the way they need to be approached. Traditional claims thinking hinges on a “wait and see” response. But this doesn’t work for heavy-construction claims because many times these claims involve complex risk shifting and coverage contribution scenarios, which usually means that what appears to be relatively simple from a liability standpoint is not very simple at all. Negligence claims and corresponding lawsuits often involve unique legal complexities due to the potential for multi-defendant scenarios and risk-transfer implications. OSHA enforcement and compliance can impact liability, too. So can engineering factors, in terms of both design and applied construction methods. Add industry standards to the claims equation and you’ve got an entire layer of additional liability not commonly considered. Heavy construction claims simply demand a much higher level of sophistication than standard business-insurance claims.
What does this mean for you?
NBIS’s fundamental ideology concerning claims is founded on the principles of efficiency, transparency, urgency and uncompromising quality. Adhering to these principles has allowed us to build a reputation in the insurance industry as a company that fights for its policyholders. We’re committed to consistently executing industry best practices so that we can improve claim outcomes and reduce costs. And one of the ways that we do this is by not waiting to respond to a claim until the “duty to defend” is triggered.
While many insurance carriers postpone their claims investigation until after the “duty to defend” has been triggered to avoid upfront expenses, NBIS does the opposite: we begin our investigation immediately. To do this, we have to rely, in part, on help from our insured policyholder, who is almost always the first responder. By implementing an urgent onsite investigation with the appropriate experts, both legal and technical, the insurance carrier (NBIS) and the contractor (the policyholder) can begin to build a solid defense in the event that litigation arises at a later time. Taking the traditional “wait and see” approach to investigation gives away a strategic advantage to plaintiff attorneys and self-insured companies, and that’s never advisable.
At NBIS, we think of accident investigation in terms of distinct levels: first response, tactical response, forensic response and legal response. If the claims event is severe enough, each level of accident investigation will be executed during one seamless response. In other scenarios, these steps may develop systematically, one by one. In almost every scenario, though, it’s important to remember that the insured policyholder is almost always the first responder.
Insured as first responder
Claims responses are almost always most effective when they utilize a pre-planned approach. Having a Jobsite Accident Response Plan in place is both helpful and critical, so that when a claim occurs, important information can be gathered in a composed and methodical way. A good response plan contemplates multiple scenarios with two key objectives in mind: to preserve evidence and to “set the table” for the investigative team.
To help the insured first responder accomplish these two objectives, we’ve identified four steps that should be taken right away. When done so carefully and thoroughly, these steps can greatly increase your chances of a successful claims outcome.
Assess: The first step in any claims scenario is to assess the accident. The first responder should first address any injuries or damages before initiating any of the other steps. Emergency personnel should be contacted. If necessary, first aid should be administered.
Report: Report the accident to the appropriate insurance carrier, either by email or phone. At this stage, the first responder, in coordination with their insurance company, may choose to engage legal counsel and establish the attorney/client privilege. Utilize an accident checklist when gathering critical accident information to ensure that nothing is missed.
Investigate: During step three, the first responder begins to investigate the accident: take detailed photos and measurements, initiate report requests, take statements, develop a preliminary causation analysis and determine the need for forensic specialists. Special care should be taken to identify witnesses and secure contact information and to preserve as much evidence as possible. This is also the phase of response where forensic investigators should be contacted if they’re needed. These experts can include: structural engineers, metallurgists, geotechnical experts, accident re-constructionists and a variety of others. During this stage you should be in close contact with your insurance partner to secure the specificities of your defense and gain an early understanding of the true accident cause.
Coordinate: Step four is the coordination phase of the first response. This is where the first responder begins to coordinate the scene by documenting the specifics of the accident location and the whereabouts of key witnesses. At this point, equipment is secured so that it can’t be moved or altered and all employees should be asked to remain reachable in the event a specialist or attorney needs to contact them. All paperwork, including job contacts and specifications, should be gathered and kept secure.
What about the legal response?
During step two, the first responder may also choose to initiate a legal response, so the entire investigation is carried out under the auspice of “Attorney Work Product in Anticipation of Litigation”. But if this legal step is taken, it’s important to know that the attorney is qualified to advise in these types of scenarios. The work that crane, rigging and transportation companies perform involves a complex regulatory structure that interplays with the laws of the venue where an accident occurs. And understanding industry standards such as ASME B30.5 is an absolute must.
This is so important to us at NBIS that we sometimes engage our “National Oversight Counsel” to direct the investigation. This group of experienced lawyers is often cross-trained as riggers, signal persons and even operators. When a severity claim goes to litigation, these legal specialists work with local counsel, educating them on industry-specific factors they may not understand completely. By using this team approach, we can show how regulations such as OSHA, ANSI, ASME and the like impact negligence, either as evidence of negligence or as a defense against negligence.
Implementing a precise first response is a crucial step in starting your claims investigation off the right way and it can save you time and money in the long run. Make sure that you know and understand your Jobsite Accident Response Plan so when a claim occurs, you’re as prepared as you can possibly be. Taking the appropriate steps now can make all the difference later.