Many people complain that our society has become obsessed with litigation. It seems as though everyone who gets hurt wants to sue, even if the accident was their own fault. You must be prepared in the event someone claims they were hurt on your property. If you ever find yourself the recipient of a complaint that someone was hurt at your business or on your property, here is a list of actions you should consider in New York.
1. Provide Notice to Your Insurance Company
This is perhaps the most important thing that you need to do. For homeowners, the applicable policy is likely your homeowner’s insurance; for business owners, it is likely your general commercial liability policy. Your insurance policy will likely require a particular type of notice to the insurance company (e.g., written) within a certain amount of time following an accident. Be sure to review your policy closely for the exact notice requirements, and consult with your insurance agent to make sure you are providing the correct notice. Failure to timely notify your insurer of an accident or potential claim may result in denial of coverage, which is something you want to avoid at all costs.
Sometimes you don’t learn about an incident until sometime later—that’s okay. Provide notice as soon as you learn of an incident. Be aware that under most circumstances notice to your insurance broker is not notice to your insurance company; be sure that you provide notice to your insurance company.
Finally, as discussed below, if the injured party subsequently files a lawsuit, you must once again provide notice to your insurance company of the lawsuit so that it can assign the matter to attorneys to defend you. You should retain an attorney directly if you do not have an insurance policy in place that covers you or your business with respect to an incident. The take away here: Do Not Delay.
In New York, liability insurance is contractual in nature, and, for the most part, your insurance contract governs your relationship with your insurance company. Your insurance company has the contractual right to control the investigation and defense of any claim, which is an additional reason to notify your insurance company right away and start a dialogue about the incident. Failure to cooperate with your insurance company may be grounds for denial of coverage.
If you run a business, it is important to develop procedures by which you investigate all incidents. Many businesses have standard incident report forms that are completed by employees and witness statement forms they ask patrons to complete. If you have any concerns about the procedures you have in place, it is important to consult an attorney to develop appropriate risk management strategies for your business.
If you are a homeowner, you may want to take certain steps to investigate an incident. For example, you may want to take photographs of the area where an accident occurs and take notes about what the injured person says to you or others. Memories fade over time, so documenting such statements while they are fresh in your mind is important. Take note of any other important facts that may be relevant to your defense. For instance, if someone claims they slipped and fell on ice on your property, but you just salted the area 30 minutes prior and there isn’t any ice present, take note of that and take pictures of the area. If you have any surveillance videos of the incident, you should preserve them. Having records, photographs, and videos concerning the accident is important and assists your insurance company and/or your attorneys in assessing your potential liability. It may even assist with settlement of a claim before it develops into litigation. When in doubt about what you should be doing to investigate, it is best to consult your insurance representative or attorney. Additionally, the New York Department of Financial Services has resources for homeowners here:
One thing you should avoid is offering any information about any condition on your property or expressing responsibility to the person who is injured. Any “admission” may be used against you in a subsequent lawsuit. Besides, without knowing what legal rules apply to a particular incident, you are not in a position to fully assess your own potential liability—leave that to your insurance company and your lawyers. If the injured party wants to discuss the incident with you, you are best advised to refer them to your insurance company and/or attorneys. And you shouldn’t discuss the incident on any social media, be it Facebook, Instagram, or Twitter.
3. Maintain Documents
Create a physical file. Place all written documents, incident reports, videos, and photographs in the file. If you have email correspondence related to the incident, print that correspondence for the file or save it in electronic format such that it will be readily available to you later. Keep your physical file somewhere safe. Later, if an action is commenced, your attorney will need to review these documents. Your insurance company may request copies, and it is important to cooperate with your insurance company. Do not destroy any of these documents.
After an accident, sometimes nothing happens. Other times, many years or even decades later, the injured person may commence a lawsuit. This is why it is so important to maintain a file on each incident—you may not even recall it by the time an action is commenced. New York law sets forth different time periods in which a person must commence a lawsuit, known as a “statute of limitations.” If the injured party does not timely commence an action within the applicable statute of limitations, their claim may be barred. If you receive any legal or written documentation from someone who claims they were injured on your property, turn over this documentation to your insurance company immediately. It is important to preserve and respond to all legal documentation that may be provided to, or served upon you. Your insurance company generally has a duty to defend you in any legal action and will retain legal counsel for you once an action is commenced.
If you subsequently find that you have insurance coverage issues related to the subject incident, it is advisable to consult an insurance coverage attorney immediately. There may be certain actions you can take related to your coverage, and it is important to discuss your options with an attorney as soon as you recognize there is a problem.