Latest / The Art of Adjusting® Podcast / Episode 94: Summer Liability Basics For Adjusters

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Episode 94: Summer Liability Basics For Adjusters · The Art of Adjusting® Podcast

• 0:06
  William Auten: Hello, I'm Bill Auten of Auten Claims Management.
• 0:09
  Chantal Roberts: I'm Chantal Roberts of CMR Consulting, and welcome to the Art of Adjusting Podcast.
• 0:14
  William Auten: Today we're going to talk about life as an insurance adjuster from the perspective of property, auto, liability, or workers' compensation adjusters.
• 0:22
  William Auten: Our goal is to bring interesting topics in the world of claims adjusting to people who are working as an adjuster now and to people who are considering a career as a claims adjuster.
• 0:31
  William Auten: Hi, Bill.
• 0:31
  William Auten: Hey Chantal, how are you?
• 0:33
  William Auten: I'm doing well.
• 0:34
  William Auten: Thanks.
• 0:34
  William Auten: How are you?
• 0:35
  William Auten: Good, good, good.
• 0:36
  William Auten: It's uh it's almost summer.
• 0:38
  William Auten: It's not quite, but I I know.
• 0:40
  Chantal Roberts: I find it really hard to believe how quickly everything has gone by.
• 0:45
  William Auten: It does fly, especially when you're getting old.
• 0:48
  William Auten: I just remarked to my I'm working from home today.
• 0:51
  William Auten: You can see my background.
• 0:52
  Chantal Roberts: Yeah.
• 0:52
  William Auten: This is uh I'm approaching this, will be the longest place I've ever lived in one spot.
• 0:58
  William Auten: Really?
• 0:59
  William Auten: Yeah.
• 1:00
  William Auten: Wow.
• 1:00
  William Auten: I think we're coming up on 11 years.
• 1:02
  Chantal Roberts: So wow, that is crazy.
• 1:05
  William Auten: I've been a mobile kind of a guy, always been moving since a kid.
• 1:09
  William Auten: So uh, but it just dawned on me.
• 1:11
  William Auten: Wow, it's been 11 years already in this place.
• 1:14
  Chantal Roberts: Wow, that's great though.
• 1:16
  Chantal Roberts: Well, you've got your roots because you've got your company there and and everything, so yeah, that's good.
• 1:21
  Chantal Roberts: And everybody be sure to send Bill some work because he um is totally not busy at all.
• 1:28
  Chantal Roberts: At all.
• 1:28
  Chantal Roberts: Yeah, we just knew around here in the upper New York State area.
• 1:32
  Chantal Roberts: It's whatever goes down to Albany and everything.
• 1:34
  William Auten: Yeah, thank you.
• 1:36
  Chantal Roberts: Yeah, you're welcome.
• 1:37
  Chantal Roberts: Hey, what are friends for?
• 1:39
  Chantal Roberts: That's by the by the way, while y'all are sending Bill some work, be sure to like, subscribe, comment, share, all of those kind of fun things because it helps the algorithm.
• 1:51
  Chantal Roberts: And then other people are randomly contacting me saying that they can make my podcast better.
• 1:56
  William Auten: Yeah, and if you are uh if you're a claims manager, claims director, and you some of your staff really screwed something up, call Chantel.
• 2:04
  William Auten: She can uh she'll tell tell you what they did wrong and tell you what to do next.
• 2:11
  Chantal Roberts: Because I'm always happy to tell you where to go and what you can do with yourself once you're there.
• 2:16
  Chantal Roberts: Uh so we are talking summer liability since we're in May now.
• 2:21
  Chantal Roberts: Oh my gosh.
• 2:22
  Chantal Roberts: And so we're gonna be talking about what's covered, what's not, and why it matters.
• 2:27
  Chantal Roberts: And our summer claims, they can really look simple until we get to the policy a lot of times.
• 2:34
  Chantal Roberts: Uh, you know, the thing that I always have to look up is the lawnmower issues and policy language changes.
• 2:42
  Chantal Roberts: We're gonna be talking about the ISO standard policy.
• 2:45
  Chantal Roberts: Uh so your what is it, your mileage may vary depending on what policy you have.
• 2:52
  Chantal Roberts: Uh we're gonna be talking about pools and backyard injuries, which will be your liabilities as well, you know, rocks thrown and all of that fun stuff.
• 3:03
  Chantal Roberts: So, Bill, do you want to go ahead and talk about how we should, as adjusters, analyze these losses?
• 3:14
  William Auten: Yep.
• 3:14
  William Auten: Yeah.
• 3:15
  William Auten: So uh one of the first things we have to do is identify who the policy holder is and um who is not.
• 3:22
  William Auten: So if you have uh non relatives living in the house and uh they their residents there, let's say you've got a live-in boyfriend, live-in girlfriend, they're not technically a policy holder if they're not listed on the policy.
• 3:38
  William Auten: Now, if you've got resident relatives living with you, they're all insureds.
• 3:42
  William Auten: So but you have to be able to prove that that's their main residence.
• 3:46
  William Auten: So if you've got an older kid that's living with you and they they're home from college, but they maintain a permanent address in some other city and state, uh, if that's their permanent address, they're not technically resident relative.
• 4:02
  William Auten: So if they make a mistake to cause injuries or damages to somebody else, you might have a coverage issue there.
• 4:07
  William Auten: So those are all things to think about.
• 4:09
  Chantal Roberts: Um like my brother-in-law, he lives here with us, his driver's license has our address.
• 4:15
  Chantal Roberts: He isn't insured, which makes me think maybe I should raise my limits a little bit.
• 4:22
  William Auten: The whole umbrella policy.
• 4:23
  Chantal Roberts: Yeah.
• 4:24
  Chantal Roberts: But our child, Aaron and Aaron's son, my stepson, who uh was going to and from school, still had his driver's license at our address in Arkansas when we were there.
• 4:38
  Chantal Roberts: But then, you know, now he's of course living away.
• 4:41
  Chantal Roberts: But when he up to 26, I believe, is what you can do in most policies.
• 4:45
  Chantal Roberts: Sometimes it's 24.
• 4:46
  Chantal Roberts: So what else?
• 4:48
  William Auten: Well, uh, then we have to, if there's a liability claim, we need to figure out whether there's um bodily injury or property damage.
• 4:56
  William Auten: Now, bodily injury sounds pretty simple.
• 4:58
  William Auten: Um, did they cut their arm?
• 5:00
  William Auten: Did they break their leg?
• 5:01
  William Auten: Did they break their nose?
• 5:03
  William Auten: Uh did they bleed anywhere?
• 5:05
  William Auten: Um, that's pretty good indicator that there's a bodily injury.
• 5:08
  William Auten: But if they just got sad, that's probably not a bodily injury.
• 5:12
  William Auten: Um, so in most cases.
• 5:15
  William Auten: In most cases, yeah.
• 5:16
  William Auten: Yeah.
• 5:16
  Chantal Roberts: No, I'm gonna uh because I'm gonna tell you, I think Massachusetts is the only state out there that recognizes mental distress if you do not have a bodily injury.
• 5:31
  William Auten: So I don't quote me on that, of course, because I'm I you know I make stuff up as I go along, but uh PT PTSD is often raised here as part of a claim.
• 5:41
  William Auten: And um, you know, what value that actually has is debatable.
• 5:46
  William Auten: Um but the uh property damage is another important um consideration.
• 5:54
  William Auten: Is there actually property damage?
• 5:56
  William Auten: So and the the test is to say, okay, this thing that was quote damaged, is it worth less now than it was before because of what happened?
• 6:06
  William Auten: And that's really the the test of of whether there's damage.
• 6:11
  William Auten: Um there's some things that can't be considered property damage, like um like loss of money.
• 6:18
  William Auten: So on a commercial policy in particular, it's tangible physical property uh is what is considered property damage.
• 6:28
  William Auten: So if you have um, let's say if you make an electronic transaction and it doesn't go through properly and the other side doesn't get paid, um, that's not going to be covered as property damage because it's not tangible, tangible property.
• 6:45
  Chantal Roberts: So I would say too, uh, let's think about or look at as adjusters diminished value specifically for auto is what I'm thinking of.
• 6:54
  Chantal Roberts: But I have had diminished value come up for I don't know, couches or antiques or something to that effect uh when it's a liability claim.
• 7:03
  Chantal Roberts: And uh hold on, I feel like I'm gonna sneeze.
• 7:07
  Chantal Roberts: Um let it rip.
• 7:09
  Chantal Roberts: So uh we don't unless it's per state or something like that, but to my knowledge, we do not owe a third-party claimant diminished value unless it's by state, uh like it changes by state.
• 7:26
  William Auten: Um so one could argue that that that is all you owe is the diminished dish diminishment of of value.
• 7:35
  William Auten: Uh so here's how it works on the on property claims dealing with real estate losses.
• 7:40
  William Auten: So let's say you've got a house that's damaged by your insured's negligence.
• 7:45
  William Auten: So you have a contractor and they do something and it like cut a sprinkler line or something.
• 7:51
  Chantal Roberts: Um, not that I would know anything about that, see my Facebook post.
• 7:58
  William Auten: Well, I'm talking more about uh total losses.
• 8:00
  William Auten: So if you've got a situation where a house completely burns uh either to the ground or to the extent that it's very badly damaged, um on the first party side, what we do as adjusters is we go in and we write a replacement cost estimate.
• 8:18
  William Auten: Then if it's a total loss, we you know, in New York, I I know other states do this as well.
• 8:23
  William Auten: We look at the broad evidence rule and we look at all the evidence that we can find it that tells us um information about the value of that property.
• 8:31
  William Auten: And what you wind up doing is kind of averaging all those together to come up with a reasonable value.
• 8:37
  William Auten: And that's a those are that's all based on statutes that are written within insurance law, insurance-related first party claims.
• 8:46
  William Auten: And as an adjuster, that's probably what most of your background has been.
• 8:52
  William Auten: But in third-party claims, it's a little different here in New York, it's a diminishment of value um situation in a third-party claim.
• 9:00
  William Auten: Okay, so you can have it.
• 9:03
  William Auten: You can have it, and that's actually the the way you value it.
• 9:06
  William Auten: Right.
• 9:06
  William Auten: So if the house is uh worth $250,000 before the fire, after the fire, if you sold that damaged property on the market, you might get $85,000.
• 9:17
  William Auten: Well, let's just do an easy number, two fifty thousand dollars.
• 9:20
  William Auten: So the loss is actually two hundred thousand dollars, not the four hundred and eighty thousand dollar public adjusters estimate, not the broad evidence calculations or any of that.
• 9:30
  William Auten: It's the amount that the value uh was diminished by the event.
• 9:36
  William Auten: Um and that's a little bit of a it's a switch in thinking, but it makes more sense if you think about it in terms of a bucket of water.
• 9:47
  William Auten: The value uh is demonstrated by how much water is in that bucket.
• 9:53
  William Auten: If the loss occurs and now the bucket is half full, you want to get them back to where they were before the fire.
• 10:00
  William Auten: So you have to put water back in.
• 10:04
  William Auten: So that's the way I look at that, a diminishment of value.
• 10:08
  William Auten: And when it comes to a vehicle, I know you know we have repairs and things like that, the the actual cost.
• 10:15
  William Auten: Um, but diminishment of value or diminished value claims in in vehicles is different because it it talks about the the lowering of value after the repairs, not because of the repairs.
• 10:27
  Chantal Roberts: Yeah.
• 10:28
  Chantal Roberts: So we also need to find out if it happened from a quote, occurrence end quote, which is the liability aspect of it.
• 10:36
  Chantal Roberts: And uh, you know, an occurrence again can mean a whole bunch of different things depending on your policies, but I think I pulled it just from the homeowner's policy.
• 10:47
  Chantal Roberts: It means an accident, including a continuous or repeated exposure to substantially the same general harmful conditions, which results during a policy period in a bodily injury, which is in quotes, which means it's defined, and property damage, which again is in quotes or or excuse me, or property damage, which is in quotes, and again defined, and we've just been talking about that.
• 11:12
  Chantal Roberts: Gotta look for exclusions.
• 11:16
  William Auten: Yep.
• 11:16
  William Auten: Yep.
• 11:17
  William Auten: If it if it uh if it does pass the test of an occurrence, and it sounds so silly, what's an occurrence?
• 11:24
  William Auten: I mean, in my in in everyday language, uh an occurrence just means something that happened, but in the policy, it just means something a little more specific, and it's gotta fall into that category, or otherwise it's it's not a covered claim.
• 11:38
  Chantal Roberts: Right.
• 11:38
  Chantal Roberts: Absolutely.
• 11:39
  Chantal Roberts: And I have read many an article that quotes judges saying, man, for want of a definition, uh, we all think we know what occurrence means, but it that's one of those words that's really hard to define.
• 11:54
  Chantal Roberts: And the policy tries to, but there you go.
• 11:57
  Chantal Roberts: So, you know, you're looking at exclusions after you make sure that you have an occurrence.
• 12:05
  Chantal Roberts: And the reason why you're looking for exclusions is not to look to see what you can deny, but it is again, most part uh the policies are special policies, which means everything is covered except what's excluded.
• 12:21
  Chantal Roberts: And lay people believe that we as adjusters are always looking for exclusions.
• 12:28
  Chantal Roberts: It's not that we're looking for ways to deny the claim, it's that we need to find coverage.
• 12:33
  Chantal Roberts: And the only way to find coverage is basically to prove a negative.
• 12:37
  William Auten: Right.
• 12:38
  William Auten: And and I would argue that it's not the adjusters that are looking for ways to not pay a claim.
• 12:43
  William Auten: That was done long before uh the claim ever happened.
• 12:46
  William Auten: That was done when the policy was written.
• 12:48
  William Auten: The the craft the drafters of that policy form knew what they were accepting as risks and what they are won't accept as risk.
• 12:59
  William Auten: And that's why those things are in there.
• 13:01
  William Auten: Our job is to just see what those lunatics wrote.
• 13:06
  Chantal Roberts: Exactly.
• 13:06
  Chantal Roberts: Exactly.
• 13:07
  Chantal Roberts: And then the of course there's always the exception to the exclusion, which is the fun thing where we say this is excluded, but we may give coverage back here only under this circumstance, if like this particular cause of loss happened, and only for maybe a certain sum, like a sublimit for $500, $1,500, $2,000, whatever.
• 13:29
  William Auten: Unless they put this endorsement on there that changes everything anyway.
• 13:33
  William Auten: Right.
• 13:34
  William Auten: And uh that's why I say lunatics when I talk about the folks that draft these things.
• 13:39
  Chantal Roberts: Which is also the reason why you have to read the entire policy every single time, every page.
• 13:44
  Chantal Roberts: Yes.
• 13:44
  William Auten: And will it turn you into a lunatic to read them?
• 13:47
  William Auten: Yes.
• 13:47
  Chantal Roberts: Yes, it will.
• 13:48
  Chantal Roberts: So let's jump into lawnmowers, one of one of my favorite topics.
• 13:56
  Chantal Roberts: And this is one that a lot of people think that they know.
• 14:02
  Chantal Roberts: Everybody thinks, oh yeah, lawnmower is covered.
• 14:06
  Chantal Roberts: Great, except for maybe when we're mowing our neighbor's yard or whatever, depending on what the policy says.
• 14:13
  Chantal Roberts: So for example, I have a neighbor next door who mows our elderly neighbor's yard.
• 14:20
  Chantal Roberts: Would there be coverage for my next door neighbor who mows his yard, mows the neighbor one door down yard?
• 14:30
  William Auten: Depends.
• 14:30
  William Auten: Yeah, so the language is that it must be used primarily to service the residents' premises.
• 14:40
  William Auten: So, what is primarily?
• 14:42
  William Auten: That means probably more often than not.
• 14:45
  William Auten: So if you're engaging in one of those days where it's not being primarily used to service the property, instead, it's being used to drive to the grocery store to pick up groceries.
• 14:55
  William Auten: And I see that a lot around here.
• 14:59
  William Auten: Really?
• 14:59
  William Auten: Oh, yeah.
• 15:00
  William Auten: We we live out in the country here.
• 15:02
  William Auten: Oh you never know what you're gonna see.
• 15:04
  Chantal Roberts: See, well, in Arkansas, I guess it's it's uh we get it, we get four-wheelers.
• 15:09
  Chantal Roberts: So we'll see the four-wheelers get, you know, going up and down to the grocery store, to liquor store, and all that kind of stuff.
• 15:15
  Chantal Roberts: But again, you know me, I like definitions.
• 15:17
  Chantal Roberts: So when you're looking at a normal HO3 and the addition date is 511, which is what most of us are using now, if not a manuscript.
• 15:28
  Chantal Roberts: But even the manuscripts may be based off of the standardized policy.
• 15:34
  Chantal Roberts: A homeowner policy will exclude motor vehicle liability.
• 15:40
  Chantal Roberts: A motor vehicle is a self-propelled land or amphibious vehicle, at per the definition, which a lawnmower, a riding lawnmower would fit into.
• 15:52
  Chantal Roberts: Now we talked about that exception to the exclusion, and one of the exceptions to the exclusion in the H03 511 policy is the exception for vehicles used to service a residence premises.
• 16:09
  Chantal Roberts: And of course, a residence premises is where someone lives.
• 16:13
  William Auten: Um and you're saying letter A, not A residence premises.
• 16:18
  Chantal Roberts: It's instead of the residence premises.
• 16:21
  Chantal Roberts: So like service A residence premises.
• 16:23
  Chantal Roberts: So like my neighbor servicing my other neighbor's yard would be okay because it is a residence.
• 16:32
  Chantal Roberts: Now, if my neighbor went over to a church to mow their yard, not covered because that's not a residence premises, unless the priest or the preacher or whomever lived there.
• 16:48
  Chantal Roberts: Bill Wilken, uh Wilson, who we've talked much about, and if you don't follow him, please do, uh, has written many a blog article about this.
• 16:58
  Chantal Roberts: And so I've I've pulled a lot of his uh things on here.
• 17:04
  Chantal Roberts: Um also for liability uh motor vehicles are excluded, and um there's still no coverage.
• 17:14
  Chantal Roberts: There's there's if an exclusion A1, which was you know, there's no coverage ENF, which is liability and med pay uh for a motor vehicle, if A1 doesn't apply, there's still no coverage for the motor vehicle liability unless the motor vehicle is used solely to service a premises.
• 17:33
  William Auten: A premises, yes.
• 17:34
  Chantal Roberts: Now that one says solely.
• 17:36
  Chantal Roberts: So again, if you do a side gig or your kid does a side gig, then it may not be covered.
• 17:45
  William Auten: Right.
• 17:46
  Chantal Roberts: Um, so something to think about when you as an adjuster, because as an adjuster, you're sitting there going, Great, there's coverage.
• 17:52
  Chantal Roberts: This is when you need to go ahead and get that recorded statement done.
• 17:56
  Chantal Roberts: And drill the matter.
• 17:58
  Chantal Roberts: Yes, and drill down on getting all of the details from the insured.
• 18:04
  Chantal Roberts: When do you mow someone else's yard?
• 18:06
  Chantal Roberts: When do you when does your kid mow someone else's yard?
• 18:08
  Chantal Roberts: When does when do you mow the church's yard or whatever?
• 18:15
  William Auten: Yeah, we we see a lot of claims involving four-wheelers and UTVs, and um those get tricky because a UTV that there's sport models that are just used to go off-roading and have fun in.
• 18:29
  William Auten: And then there's more utility ones that have speed governors on them.
• 18:34
  William Auten: They're they're not designed to go fast, they have beds designed to haul materials and stuff.
• 18:40
  William Auten: Um they're clearly more utility than recreation.
• 18:44
  William Auten: Right.
• 18:45
  William Auten: But uh its usage is really what governs it.
• 18:49
  William Auten: Um, you know, if it is one of those utility type vehicles with a dump bed, but it's only being used to to uh, you know, sightsee on a on a big property somewhere, um that's doesn't meet the definition.
• 19:04
  William Auten: It has to be uh used to maintain the property, depending on the policy language.
• 19:09
  William Auten: And we use a lot of we have we come across a lot of different forms that are worded just differently enough to change the way some coverages are gonna fall down.
• 19:19
  Chantal Roberts: Um Right, because we're talking to, we can talk about how we have damage to property of others, like we throw a rock or something like that, or we run over a boy or whatever with our lawnmower.
• 19:32
  Chantal Roberts: Uh and so it actually says our HO3511 says uh we're not gonna pay for property damage for damage to property of others.
• 19:45
  Chantal Roberts: Um where the ownership, maintenance, occupancy, blah, blah, blah, watercraft and motor vehicles.
• 19:51
  Chantal Roberts: It doesn't apply to motor vehicles that is a just designed for recreational use off public roads.
• 19:58
  Chantal Roberts: And I would say riding a lawnmower is not recreational use.
• 20:03
  William Auten: So right, unless you're using it for recreational use.
• 20:09
  Chantal Roberts: Um I wouldn't use a lawnmower for recreational use.
• 20:13
  Chantal Roberts: What recreational use would you have for a lawnmower?
• 20:16
  Chantal Roberts: Please educate us, Bill.
• 20:17
  Chantal Roberts: I want I'm gonna take an upsert of this.
• 20:20
  William Auten: I will have to send you a series of um photos I took last year at the county fair for the lawnmower tractor poles.
• 20:30
  Chantal Roberts: Oh, okay, okay, okay.
• 20:33
  Chantal Roberts: I'll I stand corrected.
• 20:35
  Chantal Roberts: I stand corrected.
• 20:36
  William Auten: Um you should see these things.
• 20:38
  William Auten: They're all tricked out, they're all painted up, and and uh there's a bunch of young people, a bunch of middle-aged people, there's a bunch of old people do it.
• 20:46
  William Auten: It's it's actually amazing.
• 20:47
  William Auten: I'll have to share some of the photos with you.
• 20:50
  Chantal Roberts: Oh, yeah, yeah.
• 20:50
  Chantal Roberts: We we need to see these on LinkedIn as well.
• 20:53
  Chantal Roberts: Okay.
• 20:54
  Chantal Roberts: So the issue too is that of course ISO has updated their policy forms because they they understood that there was this whole kerfuffle about is it covered, is it not covered, blah, blah, blah, you know.
• 21:08
  Chantal Roberts: And so the HO30322, which is the most recent, and honest to goodness, I have not seen this in my expert work yet.
• 21:20
  Chantal Roberts: If anything, I see the 0511, which is again one of the reasons why addition dates are important.
• 21:26
  Chantal Roberts: So always make sure you're reading the correct addition date of the policy.
• 21:30
  Chantal Roberts: But also, I see a lot of like you, manuscript policies.
• 21:34
  Chantal Roberts: In this particular instance, um, they have changed, they've amended the lawnmower exclusion.
• 21:41
  Chantal Roberts: So there's coverage for a writing lawn mower that at the time of occurrence is being used to mow a lawn.
• 21:51
  Chantal Roberts: So then our joy riding ones would not be effective.
• 21:57
  William Auten: There we go.
• 21:58
  Chantal Roberts: Yes.
• 21:59
  Chantal Roberts: So if you're on, oh my goodness, if you're on YouTube, you can see these things.
• 22:04
  Chantal Roberts: This is great.
• 22:06
  Chantal Roberts: Just another.
• 22:07
  Chantal Roberts: Oh, oh, you know what?
• 22:09
  Chantal Roberts: I have seen these.
• 22:11
  Chantal Roberts: We have a sunfell sunflower festival that um shows these.
• 22:20
  William Auten: These guys really get into it too.
• 22:22
  William Auten: It was a riot.
• 22:22
  William Auten: It was just so much fun watching these guys.
• 22:25
  William Auten: And they go so slow.
• 22:27
  Chantal Roberts: Oh, yeah, yeah, yeah.
• 22:28
  Chantal Roberts: There's no like buildup of anticipation.
• 22:30
  Chantal Roberts: You're just like, yeah.
• 22:35
  William Auten: Anyway, I'll that's enough for now.
• 22:37
  William Auten: But uh yeah.
• 22:38
  William Auten: So there's a lot of fun you can have with lawnmowers, apparently.
• 22:42
  Chantal Roberts: Yes, I guess there are.
• 22:43
  Chantal Roberts: Yes.
• 22:43
  Chantal Roberts: So again, here's my thought though, too, for our adjusters is everybody is talking about a riding lawnmower.
• 22:54
  Chantal Roberts: And of course, as an expert witness, this is one of the things that I key up on is of course, wording matters.
• 23:01
  Chantal Roberts: And that's one of the things that you and I talk about a lot, Bill.
• 23:04
  Chantal Roberts: And so my thought is if the definition speaks about a riding lawnmower, what about a push mower?
• 23:12
  Chantal Roberts: Uh my my yard could have a riding lawnmower, but you probably a push mower would be fine.
• 23:21
  William Auten: Yeah, uh, so it's a it's not a vehicle.
• 23:26
  William Auten: Uh-huh.
• 23:27
  William Auten: You know, it's it's a device that you push.
• 23:30
  Chantal Roberts: You don't you don't so you would say it would fall under a completely different, it would be more of a thing that would be servicing the house, like regular contents.
• 23:41
  Chantal Roberts: Okay.
• 23:42
  William Auten: It's kind of like a blender or a uh, you know, if it would fall in the same category as a as a tool, or you know, so I I don't see that as I mean, what about a weed whacker?
• 23:57
  Chantal Roberts: Well, yeah, I don't see a weed whacker as being something that we would ride, but we keep talking about lawnmowers, lawnmowers, lawnmowers.
• 24:03
  Speaker 1: Right, right, right.
• 24:04
  Chantal Roberts: And and so there is a difference.
• 24:06
  Chantal Roberts: There's the writing kind and there is the the push kind.
• 24:10
  William Auten: And so one exclusion in here actually said riding lawnmower.
• 24:15
  Chantal Roberts: Yes, it did.
• 24:16
  Chantal Roberts: Uh it it it specifically would would say riding lawnmower.
• 24:21
  Chantal Roberts: And um, I because I had put in our notes, but I can't find it right now.
• 24:28
  Chantal Roberts: But uh I know that I have it here.
• 24:31
  William Auten: HO 2021 OFR21 amends lawnmower exclusion so that there is coverage for a riding lawnmower that at the time of occurrence is being used to mow a lawn.
• 24:43
  William Auten: That means there's no coverage if you're going to the to the liquor store.
• 24:47
  Chantal Roberts: Uh so all you are Kansans out there.
• 24:50
  William Auten: That's for you, Chantel.
• 24:53
  Chantal Roberts: All my cousins, uh, y'all gotta know it's not gonna be covered.
• 24:57
  Chantal Roberts: You know, and and lawn mowers do throw up rocks.
• 25:01
  Chantal Roberts: Um you know, uh, they'll chew up, I guess, a toy or something like that, um, injuries to passerbys.
• 25:09
  Chantal Roberts: I I have worked a couple of of projectiles into the cars where the the a rock has um you know damaged a car window or whatever.
• 25:20
  Chantal Roberts: Um so you gotta know.
• 25:22
  William Auten: Lawnmowers in general can be very dangerous.
• 25:24
  William Auten: And the one thing I would say to anybody listening is do not walk backwards with a push lawnmower.
• 25:32
  William Auten: Um I've seen some terrible, terrible injuries uh to feet in particular.
• 25:38
  William Auten: So um just go forward and uh don't go backwards.
• 25:45
  Chantal Roberts: Right.
• 25:45
  Chantal Roberts: So still an occurrence, yes.
• 25:47
  Chantal Roberts: Uh you need to look at negligence versus our accident.
• 25:50
  Chantal Roberts: You know, our negligence rules, like an ABCD rule that we've talked about.
• 25:54
  Chantal Roberts: Uh, know if we're talking about bodily injury versus uh property damage.
• 25:59
  Chantal Roberts: Um, if you have a business use on the side or your kid does and is using your lawnmower, there may be a problem.
• 26:07
  Chantal Roberts: Uh yeah.
• 26:08
  Chantal Roberts: So um just like I say with with our trespassing slash business invite slash, which we're gonna get into next, um, with pools versus invitee licensee, you can be all three at one time, you know, it depending on where you go and what you do.
• 26:32
  Chantal Roberts: So the same mower could be covered at 10 a.m.
• 26:36
  Chantal Roberts: and excluded at 2 p.m.
• 26:38
  William Auten: And that's why they're doing with it.
• 26:40
  Chantal Roberts: That is correct.
• 26:41
  Chantal Roberts: And and that's why it is so important for you uh uh adjusters to take a good recorded statement.
• 26:50
  Speaker 1: Yeah, yeah, all right.
• 26:52
  Chantal Roberts: Pools.
• 26:52
  Chantal Roberts: Let's talk about pools because my neighbor has a pool, and I've been learning all about Overland Park's rules about pools.
• 27:03
  Chantal Roberts: Fascinating.
• 27:04
  Chantal Roberts: Yeah, we're very bougie.
• 27:06
  Chantal Roberts: I don't know if you do that or not, but we are very, very bougie over here.
• 27:11
  William Auten: So the the the rules that I'm familiar with is that you you have to have the access has to be controlled by a self-closing, self-latching gate.
• 27:21
  William Auten: And if it's uh an in-ground pool, there has to be a fence around it so to prevent anybody from coming in.
• 27:28
  William Auten: Um, but even if it's above ground, you still have to have, you know, whatever access you have still has to have that gate.
• 27:37
  Chantal Roberts: Yeah, so here in Overland Park, they want the pools to have covers on them.
• 27:44
  Chantal Roberts: Uh the gate has to open outward.
• 27:48
  Chantal Roberts: So, like if we were in the pool area, it opens outward to the yard, and the gate self-latching and has to be able to be locked, which is of course very interesting because my neighbor has a lock like they're supposed to, but they have the key in it.
• 28:09
  Chantal Roberts: And I'm thinking, well, that's not very good for kids.
• 28:12
  Chantal Roberts: And then the the gate has to be five feet high, like the latch has to be at least five feet high.
• 28:17
  Chantal Roberts: And I'm also thinking, you know, kids are pretty inventive, they can get in with a even a five foot high gate.
• 28:26
  Chantal Roberts: But this is what really made me think about this.
• 28:31
  Chantal Roberts: We have a green space behind our houses, and some of the kids were playing baseball, and the balls come over to our fences all the time.
• 28:42
  Chantal Roberts: And so they'll, you know, hop in or uh open the gate and come in, get their ball and head right on back.
• 28:48
  Chantal Roberts: It happens.
• 28:50
  Chantal Roberts: Well, the neighbor really has the gate locked.
• 28:54
  Chantal Roberts: That one didn't have a key on it because it backs up to the green space.
• 28:58
  Chantal Roberts: The gates the that fence is only four feet tall.
• 29:04
  William Auten: Oh, okay.
• 29:05
  Chantal Roberts: So the kid who has to be what 11, 12, 13, something like that, hopped over the fence to get the ball.
• 29:13
  Chantal Roberts: And and and so is are our insureds then protecting the children?
• 29:19
  Chantal Roberts: Because you gotta think about it.
• 29:20
  Chantal Roberts: If I were to hop over the fence, I'm trespassing.
• 29:24
  Chantal Roberts: I don't, I'm an adult, I don't have permission.
• 29:26
  Chantal Roberts: And then if I get injured by drowning in the pool or something to that effect, then um the the onus would be on me, not them.
• 29:38
  Chantal Roberts: However, 12, 13-year-old should know better, but they're usually treated like business invitees, uh, where we have to do a little bit extra.
• 29:50
  William Auten: Attractive nuisance.
• 29:52
  Chantal Roberts: Yes, attractive nuisance.
• 29:54
  William Auten: Yeah, well, and and uh children are are uh unable to make their own decisions in life too.
• 30:03
  William Auten: That you know, under the law, they they when you are a certain age, you're kind of absolved of your sins in terms of uh comparative negligence.
• 30:12
  William Auten: Um so there's that too.
• 30:15
  William Auten: But uh when it comes to pools, you can have the best fence up to code, you can have the best gate up to code, you can have the best insurance coverage in the world.
• 30:24
  William Auten: But nothing absolves you from uh your duty to recognize the risk involved in owning that pool.
• 30:34
  William Auten: And um I you know you should have you should probably have these days cameras out there, motion cameras, so that if nobody's out there, nobody's supposed to be out there, you you find out, you get a notification that something's going on.
• 30:50
  William Auten: Umbody really wants to find something bad has happened in their pool.
• 30:57
  Chantal Roberts: God know.
• 30:58
  Chantal Roberts: But that's a really great idea for adjusters to ask about.
• 31:03
  Chantal Roberts: Do you have ring cameras in your backyard or something to that effect?
• 31:09
  Chantal Roberts: So great question to ask because we do have a lack of supervision issues.
• 31:15
  Chantal Roberts: You know, back in the 80s, they they really believed in the Darwin theory of raising children.
• 31:23
  Chantal Roberts: So I could go next door to my neighbor's pool when when they were at work, my parents were at work, I was home alone, I could go swimming in the pool.
• 31:32
  Chantal Roberts: There was no supervision.
• 31:34
  Chantal Roberts: You know, uh they told us to go play out of the streets back in the 80s.
• 31:40
  Chantal Roberts: You know, don't get hit by cars.
• 31:42
  Chantal Roberts: Right.
• 31:42
  Chantal Roberts: Watch out for the cars, but don't cars will will hurt you.
• 31:46
  Chantal Roberts: There was no yielding for children playing in the street kind of deal.
• 31:50
  Chantal Roberts: Uh so yeah, you've got the lack of supervision.
• 31:53
  Chantal Roberts: You have the attractive nuisance like I was talking about.
• 31:56
  Chantal Roberts: Those things are really interesting to kids because kids want to play in the pools.
• 32:00
  Chantal Roberts: And that's why Overland Park has said, okay, you've got to have gates this high, you have to have locks on them, yada, yada, yada.
• 32:08
  Chantal Roberts: So our neighbor actually, what she has is she has a gate that's five foot high, but the rest of her fence is four foot.
• 32:14
  Chantal Roberts: But I mean, she's she would look, she's complying with code.
• 32:18
  William Auten: Yeah.
• 32:19
  Chantal Roberts: Uh, even though maybe the spirit of the law is to have a five-foot fence, regardless.
• 32:26
  Chantal Roberts: Um, you know, like I said, I literally saw a kid jump over the fence to to get the ball.
• 32:34
  William Auten: Um laws and regulations can't protect you from everything, and insurance policies can't protect you from everything either.
• 32:42
  William Auten: Uh, you have to um recognize the risks that you uh that you are undertaking when you own a pool or a trampoline or something like that, and um you have to take steps to to protect yourself and protect others.
• 32:59
  Chantal Roberts: So let's talk too about sl wet surfaces, slip and falls, and and that sort of thing, because outside in a homeowner's space, usually there's concrete and you may not slip so much because there's traction.
• 33:16
  Chantal Roberts: But what if you are a gym or something like that and you have a pool?
• 33:23
  Chantal Roberts: Well, you usually would have some kind of tile or whatever.
• 33:27
  Chantal Roberts: So you need to be sure that your insured is walking that area a lot, or their employees are walking that area a lot.
• 33:36
  Chantal Roberts: You've got those wet floor signs, um, maybe mopping up a big puddle, uh, even though the floor would still be wet.
• 33:45
  Chantal Roberts: Um but again, like we've said before, there's also a duty on the walker to know that a tile would be slippery when it's wet.
• 33:55
  William Auten: Right.
• 33:55
  William Auten: Yeah.
• 33:56
  William Auten: Um we had a we had a case where someone had outdoor tile in a parking lot and it was a sloped parking lot.
• 34:06
  William Auten: And it was hard to walk on when it was dry.
• 34:10
  William Auten: I can't imagine what it'd be like when it was wet.
• 34:13
  William Auten: Um, but yeah, um, anyway.
• 34:17
  Chantal Roberts: Yeah.
• 34:17
  William Auten: So tile around a pool makes sense.
• 34:19
  William Auten: Tile in a parking lot, probably not.
• 34:22
  Chantal Roberts: Not so much.
• 34:22
  Chantal Roberts: Also ask your insureds about umbrella policies because when you do have a child who is injured, the or God forbid, deceased, uh this can be very expensive and it can breach your policy limits very, very quickly.
• 34:40
  Chantal Roberts: So, what you're going to want to do is speak to your insured, actually speak to them, find out if they have umbrella insurance, get that uh policy number, that policy, the the insurer, if they have an adjuster, their name and number, call the adjuster and tell the insured in writing and verbally, you need to file a claim, at least for notice.
• 35:08
  Chantal Roberts: And then what I would recommend that you do is also call the carrier and place them on notice.
• 35:16
  Chantal Roberts: Because even though that's not maybe technically your job, unless, unless we're talking commercial, then maybe it is.
• 35:24
  Chantal Roberts: Um sometimes the insurance doesn't do it, and then they can be denied again for like notice for the umbrella.
• 35:31
  Chantal Roberts: And you definitely don't want, like, I don't know, a three million dollar, you know, demand coming in or verdict or something like that, and you only have 500,000 in the Yeah.
• 35:44
  William Auten: It's good to keep the um umbrella adjuster uh kind of uh apprised of the status of things as well, so that they know whether or not this is something that's actually gonna, you know, at the outset, you might think, oh God, this could be a limits case.
• 36:00
  William Auten: Um, but as you go through it, you might learn some things that maybe suggest uh maybe it isn't, um, or maybe it is and it's really bad.
• 36:09
  William Auten: Um so always good to keep dialogue with those folks too.
• 36:13
  William Auten: And I think most of the times the umbrella uh carriers that I've dealt with, they're appreciative of that.
• 36:21
  William Auten: Um but they're not they're not doing the same investigation that we are, right?
• 36:27
  William Auten: You know, on the underlying limits.
• 36:29
  William Auten: You know, we're we're doing most of the work.
• 36:32
  William Auten: They'll analyze it afterwards.
• 36:35
  William Auten: Um, but they do want to know as we go because they've got reserves to set as well and they've got supervisors to answer to and all that.
• 36:43
  Chantal Roberts: Absolutely, yeah.
• 36:44
  Chantal Roberts: So what about uh, you know, I think about medPay too in in these kinds of situations.
• 36:50
  Chantal Roberts: Uh what do you um think about that?
• 36:53
  Chantal Roberts: Yeah, yeah, or quick payments or litigation expenses, you know, because all of these are big deals, uh, especially if you have coverage, if you don't have, or if you have liability, I should say, negligence, or if you don't have negligence.
• 37:09
  William Auten: So MedPay, you know, traditionally is kind of designed to to maintain control of those smaller claims so that they don't balloon into something later on.
• 37:18
  William Auten: And from that standpoint, it's always been kind of a tool.
• 37:23
  William Auten: Um it's usually not a large limit.
• 37:26
  William Auten: We've see some policies with a thousand dollars.
• 37:30
  William Auten: That's not gonna do, you know, maybe take care of prescriptions.
• 37:34
  William Auten: Um now it's other policies have higher med pay, you know, ten or fifteen thousand dollars.
• 37:40
  William Auten: Um nonetheless, uh as I said, it's a tool to to try and you know keep control of the claim.
• 37:49
  William Auten: It it complicates things with Medicare because we can't even make the MedPay until we get the Medicare lien.
• 37:57
  Chantal Roberts: So is that true?
• 37:58
  Chantal Roberts: I did not know that.
• 38:00
  William Auten: Yeah.
• 38:00
  William Auten: So um you know, we just don't know what what that lien is going to be.
• 38:07
  William Auten: And if we ex if we spend the entire med pay limit paying the the claimant, uh, we have to pay it again for the lien.
• 38:17
  William Auten: So you know, we don't want to do that.
• 38:19
  Speaker 1: Yeah.
• 38:20
  William Auten: Um so it's it is kind of a chicken and egg thing with the CMS liens.
• 38:25
  Chantal Roberts: Um and just FYI adjusters, the uh hey, Bill, this would be a great podcast um to talk about CMS uh and the steps we have to go through, but also uh adjusters, you need to turn in your third-party claimant to CMS.
• 38:44
  Chantal Roberts: And by turn in, I mean you report them, see if they are Medicare or Medicaid eligible.
• 38:50
  Chantal Roberts: And because they have an automatic super lien.
• 38:53
  Chantal Roberts: And last I heard it was a thousand dollar a day fine if you didn't pay them and they had made payments and all of that kind of stuff.
• 39:02
  Chantal Roberts: And no nobody, even insurance companies, can't pay a thousand dollar a day fine uh for every day that you have not paid the lien back.
• 39:11
  Chantal Roberts: And and so there's a lot of steps you have to go through.
• 39:15
  Chantal Roberts: It's one and and I have had attorneys go, look, the kid is three years old.
• 39:20
  Chantal Roberts: I'm like, don't care, do not care, gotta run them through it, you know.
• 39:25
  Chantal Roberts: So um, unless you want to get me something.
• 39:28
  William Auten: My clients are like that.
• 39:29
  William Auten: They they they we gotta get that that reported.
• 39:32
  William Auten: And um, it's not just Medicare, it's Medicaid also.
• 39:37
  Chantal Roberts: Um Right, right.
• 39:38
  Chantal Roberts: It's both.
• 39:39
  Chantal Roberts: Uh so yeah, um, we should do some.
• 39:43
  Chantal Roberts: I'll I'll write that down.
• 39:44
  Chantal Roberts: We should we should um absolutely give that a talk over.
• 39:48
  Chantal Roberts: So we're in the backyard talking about pools uh and lawnmowers and and everything.
• 39:54
  Chantal Roberts: And you mentioned trampolines, and so those things.
• 39:58
  Chantal Roberts: Man, do you remember those things in the 80s?
• 40:00
  Chantal Roberts: They were so much fun.
• 40:01
  Chantal Roberts: You would fall off and break an arm.
• 40:03
  Chantal Roberts: Nobody cares.
• 40:04
  Chantal Roberts: Because again, it's the Darwin theory uh of child rearing.
• 40:09
  William Auten: Uh so I would I would I don't know that there's many homeowners listening to this, but if you're a homeowner and you have a trampoline, um, you should run to your policy right now and look to see if you have a trampoline exclusion.
• 40:22
  William Auten: Because if you do and somebody gets hurt on that, somebody outside your family, somebody in your family is not going to be covered under your homeowners, just so you know, we've had those claims before.
• 40:33
  William Auten: Uh but um but if uh neighbor's kid comes over and breaks their arm and you've got a trampoline exclusion, there's not gonna be any coverage.
• 40:44
  William Auten: It doesn't mean they can't sue you, it does, it just means that if they do, your insurance company is not obligated to defend you or pay any claims for you.
• 40:53
  William Auten: Right.
• 40:53
  William Auten: So then you've gotta you've gotta ask yourself, do I want to find a way to eliminate this trampoline exclusion?
• 41:02
  William Auten: Or do I want to find a way to eliminate this trampoline?
• 41:06
  William Auten: Yeah, I would say go for the second option.
• 41:09
  Chantal Roberts: Yeah, which would be which would be less expensive.
• 41:12
  Chantal Roberts: Uh so I know again, too, again, adjusters, when we're doing these recorded statements that we're talking about, we uh a lot of cities also have rules that you have to have that uh netting around so that kids cannot fall out or off.
• 41:32
  Chantal Roberts: And then I have even seen, which I was like, oh, that's a great idea, but my god, that's expensive.
• 41:38
  Chantal Roberts: Um trampolines that were built level with the ground because they've dug a pit in in the ground.
• 41:46
  Chantal Roberts: So when the kid falls off, they just fall on the ground, right?
• 41:50
  Chantal Roberts: Yeah, it's a great idea, but also yeah, well, falling off the trampoline is one risk.
• 41:56
  William Auten: The other risk, which is almost as bad, is when you've got multiple kids in there and they're bouncing off each other and you you wind up with concussions.
• 42:04
  Chantal Roberts: Oh, yeah, yeah, yeah.
• 42:06
  Chantal Roberts: Uh, and and it's not to say that you can't twist an ankle or something like that when you're jumping up and down with even by yourself, with but with all of the kids doing all sorts of somersaults and backflips and all of the fun things that you can do on a trampoline.
• 42:22
  William Auten: So if you have a neighbor's kid over, uh it's hard for me to imagine a scenario where you would not be found liable for injuries to that kid if they got injured on the trampoline.
• 42:36
  Chantal Roberts: Because remember, because remember, your duty changes when there's a child, even though you've invited the child over.
• 42:44
  Chantal Roberts: I mean, uh obviously.
• 42:46
  Chantal Roberts: So I would sit out there or I would have an adult sitting out there having some supervision, and that's when you you yell while you're holding your beer or your charaz or whatever.
• 42:57
  Chantal Roberts: No horseplay, knock it off.
• 43:01
  William Auten: If I have to get up and put my wine down, yeah, yeah, and and that certainly wouldn't help the liability picture if you were uh absolutely not anyway.
• 43:11
  Chantal Roberts: Um yeah, so you've got safety features, you've got supervision that you have to do.
• 43:17
  Chantal Roberts: Most of these things we've talked about before, but again, I think your point mostly is look, be sure, adjusters, to look at the the policy and see if there's a trampoline exclusion.
• 43:30
  William Auten: Yeah, the best way to protect yourself from trampoline claims is not insurance coverage, it's avoidance.
• 43:38
  Chantal Roberts: Yeah.
• 43:38
  Chantal Roberts: Yeah.
• 43:39
  William Auten: Um which my kids always wanted trampolines, and dad was always I was always on the no train.
• 43:45
  William Auten: Sorry, kids, let's just why don't we just go run at the track at school instead?
• 43:52
  Chantal Roberts: Um, you know, I always wanted a trampoline and my parents always told me no.
• 43:55
  Chantal Roberts: But uh to be fair, my parents also said I could never go skiing too, because they were always.
• 43:59
  Chantal Roberts: And so I desperately want to go skiing sometime.
• 44:02
  Chantal Roberts: Not water skiing, snow skiing.
• 44:03
  Chantal Roberts: I do want to do well.
• 44:04
  William Auten: Skiing is one of those assumption of risk uh things that um I just I I think horseback riding should be considered that as well.
• 44:13
  Chantal Roberts: Um I would think it would be.
• 44:16
  William Auten: Yeah, it is for the most part, but you you get some you get some catastrophic injuries, somebody's getting sued.
• 44:23
  Chantal Roberts: Oh, yeah, yeah, yeah.
• 44:23
  Chantal Roberts: I mean, you know, because you can fall off a horse and have a really good major concussion.
• 44:29
  Chantal Roberts: Um, so uh fire pits and grills, of course, everybody is grilling.
• 44:34
  Chantal Roberts: And we've all we've all had the podcast before, and we're not going to get into it, where if you have the fire too close to the house, it's you know, sparks are gonna go up, and and there's always some insured that wants to deep fry a turkey in the garage.
• 44:48
  Chantal Roberts: And you're like, no, why did you think that was a good idea?
• 44:52
  Chantal Roberts: First of all.
• 44:53
  Chantal Roberts: Um, so yeah, we've got your friendly fire and your hostile fires.
• 45:00
  Chantal Roberts: So can you talk about that?
• 45:03
  William Auten: Yeah.
• 45:03
  William Auten: Uh so if you've got a fire pit, if you're allowed to have one um where you live, uh and you you build a fire that's a little too big and the wind blows a little too hard, and some members go on to the neighbor's deck and start their house on fire, um yeah, you're gonna be found liable for that.
• 45:26
  William Auten: And chances are what's gonna happen is that insurance company is gonna pay for the damage for your neighbor to your neighbor's place, and then they're gonna subrogate against you.
• 45:34
  William Auten: Um you should have informed your liability uh carrier long before subrogation happens, anyway.
• 45:42
  William Auten: Yeah, absolutely.
• 45:44
  William Auten: But um again, that's another avoidance thing.
• 45:48
  William Auten: You know, you're better off uh not having a fire in a windy day.
• 45:53
  Chantal Roberts: Um and again, adjusters, I'm kind of hitting this pretty hard, and I'm thinking we're gonna need to have a podcast about recorded statements.
• 46:01
  Chantal Roberts: But again, adjusters, when we're taking our recorded statements, this is when you need to be asking your insured, did you know what the wind was gonna be?
• 46:09
  Chantal Roberts: And you should look up what the wind is at uh the wind speeds, and we've talked about various weather websites.
• 46:19
  William Auten: Yeah, for sure.
• 46:21
  William Auten: Um the other thing that we have with fire pits in general are people falling into them or stepping into big are these fire pits?
• 46:30
  Chantal Roberts: Well, um or is it because I didn't I uh I'm yelling at the kids to stop uh horse playing in the trampoline and I had to put down my charaz.
• 46:40
  William Auten: People run around them, kids run around them.
• 46:42
  William Auten: Yeah, yeah.
• 46:43
  William Auten: Um, I had uh claim where a woman uh stood up off a bench and lost her footing and fell right into the fire.
• 46:50
  William Auten: Um I've had people trip over them like um a lot of people will use like an old tire rim and uh at night somebody stumble into the yard and they they'll trip over it.
• 47:05
  William Auten: It's happened during the daytime, you know.
• 47:07
  William Auten: We have oh yeah, all kinds of fun.
• 47:10
  William Auten: Um we we've had uh we've had people have an open fire in the yard and then they put the fire out because they're leaving for the day, whatever, but the coals are still there, you just can't see them, and somebody steps in it.
• 47:24
  William Auten: Uh that's a bad day.
• 47:26
  William Auten: So yeah.
• 47:28
  Chantal Roberts: Uh we've got we've talked previously, you and I, about in the intentional acts exclusion.
• 47:36
  Chantal Roberts: And you came up with a great rewording or rethinking of this exclusion because most people go, Oh, it's an intentional act, boom, it's excluded.
• 47:49
  William Auten: And it's not I'm sure it was brilliant.
• 47:51
  William Auten: I just don't remember it.
• 47:52
  Chantal Roberts: I will.
• 47:52
  Chantal Roberts: I well, I'm gonna I'm gonna tell you what it is, and I and I'm gonna give you full credit.
• 47:56
  Chantal Roberts: Is there is intentional act, there is an intentional act exclusion, it's the very first one, but the way that you worded it, Bill, was it's more of an intentional harm because oh yeah, we as insurers pay for stupidity.
• 48:15
  Chantal Roberts: So if you intentionally set something on fire, but you didn't intend for it to catch your neighbor's yard on fire, then maybe it's it's excluded or you know, it's not it's not covered or it is covered.
• 48:31
  Chantal Roberts: Um I want to give an example that I just recently saw.
• 48:36
  Chantal Roberts: Uh, I'm my husband and I are watching The Rooster.
• 48:40
  Chantal Roberts: And I don't know if you're watching that show or not.
• 48:42
  Chantal Roberts: No, but never heard of it.
• 48:44
  Chantal Roberts: Oh, it's it's good.
• 48:45
  Chantal Roberts: It's with Steve Carell uh as the main as the main guy.
• 48:49
  Chantal Roberts: Anyway, uh Steve Carell's daughter in in the show is going through a separation with her husband, and she burns her husband's book, his favorite book.
• 49:06
  Chantal Roberts: It was a first edition, only translated, like pretty much the only edition in the world uh of this book.
• 49:12
  Chantal Roberts: It's very, very rare, very special to the guy, blah, blah, blah.
• 49:16
  Chantal Roberts: She puts it in the chimney, sets it on fire, and realizes when sparks start going up that the chimney cover is down and she can't get it open because it's, you know, um stuck.
• 49:34
  Chantal Roberts: So now sparks are going all over the room.
• 49:38
  Chantal Roberts: She's trying to put it out.
• 49:39
  Chantal Roberts: The whole house catches on fire.
• 49:42
  Chantal Roberts: So she intentionally burns the book.
• 49:47
  William Auten: No coverage for the book.
• 49:48
  Chantal Roberts: No coverage for the book, but she unintentionally burned the house down.
• 49:53
  Chantal Roberts: That there would be coverage.
• 49:55
  Chantal Roberts: And okay, we're gonna like ignore the fact that the wife burned her own house down, but I mean, you get you get the point right uh uh of that issue.
• 50:04
  Chantal Roberts: So it in our fire pit issue, if like maybe I don't know, our fire pit burned our tree and then burned our neighbor's house, maybe our tree wouldn't be covered, but the neighbor's house would.
• 50:16
  William Auten: So I would I want royalties when ISO changes their language to intentional harm.
• 50:22
  Chantal Roberts: I think that I think you should demand that.
• 50:25
  Chantal Roberts: It it was a very good rethinking of the idea.
• 50:32
  Chantal Roberts: And in fact, I use it in my class when I'm talking about commercial general liability, and we're talking about Drake and Lamar's little feud over those issues with the rap songs and and whatever.
• 50:48
  Chantal Roberts: All of the students immediately go to, oh, that's an intentional act, there's no coverage.
• 50:53
  Chantal Roberts: And I'm like, Yeah, there would be.
• 50:56
  Chantal Roberts: It's did he intend there to be harm in that particular instance when he's calling someone a pedophile?
• 51:04
  Chantal Roberts: Well, anyway.
• 51:06
  Chantal Roberts: So your negligence will drive your analysis of liability, you know.
• 51:14
  William Auten: You uh your negligence, but your intent.
• 51:17
  Chantal Roberts: Yes, your intent.
• 51:18
  Chantal Roberts: Yeah, yeah.
• 51:19
  Chantal Roberts: Yeah.
• 51:19
  Chantal Roberts: Um so there you go.
• 51:22
  Chantal Roberts: That's that's yeah.
• 51:24
  Chantal Roberts: Uh we've got dogs that are in the backyard.
• 51:27
  Chantal Roberts: Yeah, yeah.
• 51:30
  Chantal Roberts: We've we've talked about dogs before.
• 51:32
  William Auten: We have, but we need to update our talk because the law changed here in New York.
• 51:35
  William Auten: There's a new uh court decision that has um it hasn't negated the one bite rule that happened that we had in New York.
• 51:44
  William Auten: And for those who don't know, one bite rule meant that if your dog never bit anybody before, that you technically had no notice that the dog had any vicious propensity.
• 51:53
  William Auten: So you were free from liability.
• 51:55
  William Auten: But if the dog had bitten somebody before, you're now on notice of that dog's vicious propensity, and you become strictly liable for anything, any of the dog bites that happen after that.
• 52:06
  William Auten: So what that does is removes the concept of negligence from the argument.
• 52:11
  William Auten: In New York, it was just a strict liability situation.
• 52:14
  William Auten: If the dog bit somebody prior, you are now strictly liable.
• 52:18
  William Auten: That's the test.
• 52:19
  William Auten: However, this new decision I can't remember the name.
• 52:24
  William Auten: Fellows, maybe anyway, the new decision allows negligence to also be made.
• 52:31
  William Auten: So now you can argue strict liability and vicious propensity, but you can also argue negligence.
• 52:38
  William Auten: So if your dog never bit anybody before, but you accidentally left the door open and the dog got out and bit somebody, negligence now trigger triggers liability and payment has to be made.
• 52:50
  Chantal Roberts: Um this is a great topic because I have questions.
• 52:53
  Chantal Roberts: Uh so we'll get into it.
• 52:56
  Chantal Roberts: But yes, bite history, again, you're gonna know this adjusters by by taking your recorded statement and asking about it, maybe doing a search in your system, seeing if there's been another dog bite or the ISO claim search feature.
• 53:10
  Chantal Roberts: Breed exclusions, this is rapidly going out of style because some municipalities and states have said carriers can't exclude certain dog breeds.
• 53:22
  Chantal Roberts: So be aware of that.
• 53:26
  Chantal Roberts: And again, adjusters, this is where you need to like do a search and uh around your states and municipalities to see if there are those restrictions, like insurance companies can't exclude pit bulls or German shepherds or whatever.
• 53:42
  William Auten: The the new if you're in New York, the new decision is Flanders versus Goodfellow.
• 53:46
  William Auten: There you go.
• 53:48
  William Auten: There you go.
• 53:49
  William Auten: The new law in New York.
• 53:52
  William Auten: And that happened, I want to say it was about this time last year, maybe mid-summer.
• 53:58
  William Auten: Um I can't find the date, but it was last summer anyway.
• 54:04
  William Auten: Um I started to get I started to get letters from attorneys saying, see, see, we had because we had I don't know how at any given time we probably have 20 or 30 open dog claims and um all the attorneys were sending us letters with the decision attached.
• 54:22
  Chantal Roberts: Oh wow.
• 54:23
  Chantal Roberts: Oh wow.
• 54:24
  Chantal Roberts: Okay.
• 54:24
  Chantal Roberts: Well, let's see.
• 54:27
  Chantal Roberts: Uh we've covered a lot of things and we have in our summer in our summertime sadness of liability claims, I guess.
• 54:38
  William Auten: So uh location it's not just winter that keeps us busy, you know.
• 54:42
  William Auten: Everybody thinks slip and falls, and that makes up a huge chunk of what we do, but summer keeps us really busy too.
• 54:50
  Chantal Roberts: We haven't even talked about hurricane claims.
• 54:51
  Chantal Roberts: Woo! So location matters.
• 54:56
  Chantal Roberts: Uh for example, for our lawnmowers, uh, if you're on premises, if you're off-premises, you got to look at that liability definitions or the language of what we're using a certain tool for.
• 55:11
  William Auten: And we talked all about third-party liability here.
• 55:14
  William Auten: We could do a whole other episode on first party liability with these same issues, these same kind of um like lawnmowers, for example, or recreational vehicles.
• 55:23
  William Auten: They're just if they're not used to service the property, they're not covered if they get stolen or damaged in a fire or something like that.
• 55:31
  Chantal Roberts: Very true.
• 55:31
  William Auten: Um so there's certain types of pool damage that wouldn't won't be covered, like if the ground shifts underneath and it cracks, um, it's not gonna be covered, you know.
• 55:41
  William Auten: So there's uh we could uh again do a whole episode on first party only.
• 55:46
  unknown: Yeah.
• 55:47
  Chantal Roberts: Fun.
• 55:48
  Chantal Roberts: Maybe we will, maybe we won't.
• 55:50
  Chantal Roberts: I don't know.
• 55:51
  Chantal Roberts: It's we have so many topics, and in fact, if y'all have a topic that you want us to talk about, drop us a line on LinkedIn, either on Spotify or YouTube or something like that, and we'll go.
• 56:04
  Chantal Roberts: We don't know anything about it, but we'll make sense.
• 56:07
  William Auten: We have lots of fun here in New York.
• 56:08
  William Auten: We could talk about labor law 240, we could talk about dog bites and the new decision, we could talk about the avoid act.
• 56:14
  William Auten: Yeah, we could go on and on the board.
• 56:15
  Chantal Roberts: We can go on and on and on.
• 56:18
  Chantal Roberts: Uh, you know, your intentions matter, intentional acts are covered.
• 56:24
  Chantal Roberts: It's intentional harm or intentional acts, I don't know, aren't covered, but it's intentional harm that is covered, I guess is what you could say.
• 56:33
  Chantal Roberts: No, did I get that backwards?
• 56:34
  William Auten: Backwards.
• 56:35
  Chantal Roberts: Oh, okay.
• 56:36
  Chantal Roberts: So intentional acts are covered, yeah, because we cover for stupidity.
• 56:40
  Chantal Roberts: Thank you.
• 56:41
  William Auten: Right.
• 56:42
  Chantal Roberts: So intentional acts are covered, it's intentional harm that we don't cover.
• 56:46
  Chantal Roberts: Thank you.
• 56:47
  Chantal Roberts: Right.
• 56:47
  William Auten: Thank you for that.
• 56:48
  William Auten: I intended to start the fire in the fireplace, but I didn't intend for it to leave there and burn my house down.
• 56:53
  Chantal Roberts: Exactly.
• 56:54
  Chantal Roberts: So anyway, uh, you know, and your status as guest, watch out for children because their status changes because the their poor little brains are not developed.
• 57:07
  William Auten: And if you have a live-in boyfriend or girlfriend, yes, you want to make sure they're on the policy or that they have their own separate renter's policy.
• 57:14
  Chantal Roberts: Yeah.
• 57:15
  William Auten: And that you have a rental agreement with them.
• 57:17
  Chantal Roberts: Yes, please.
• 57:18
  Chantal Roberts: So it's not just about, you know, bad luck or anything like that.
• 57:22
  Chantal Roberts: It's it's it's about all of these little details that we've got to get nailed down uh and in our recorded statements, in our discussions with the insured, talking about these things with the insured on our first conversation, maybe our second conversation as we learn a little bit more.
• 57:38
  William Auten: Yeah.
• 57:39
  William Auten: All right, cleaning crews here.
• 57:41
  William Auten: So there's some background noise.
• 57:42
  William Auten: I hope that's not bothering too much, bothering you too much.
• 57:45
  Chantal Roberts: We're gonna go ahead and conclude anyway.
• 57:47
  Chantal Roberts: So in two in two weeks, uh, on May 21st, on May 21st, our topic is gonna be Memorial Day and beyond the holiday weekend and liability trends and risk patterns.
• 58:00
  Chantal Roberts: So we're gonna talk more about that.
• 58:02
  Chantal Roberts: And again, be sure to like, subscribe, share, comment, all of those sorts of fun things.
• 58:08
  William Auten: Absolutely.
• 58:09
  Chantal Roberts: So we'll see you in uh two weeks.
• 58:13
  William Auten: Yes, ma'am.
• 58:13
  Chantal Roberts: Okay, bye.
• 58:14
  William Auten: Take care.
• 58:15
  William Auten: Bye-bye.
• 58:15
  William Auten: Thanks for joining us on the Art of Adjusting podcast, where we talk about life as an insurance adjuster.
• 58:21
  William Auten: Hit that subscribe button real quick and tell all of your adjuster friends to check this out as well.
• 58:26
  William Auten: For independent adjusting services, go to www.autin.claims.
• 58:30
  William Auten: And for anyone interested in working as an independent liability adjuster, go to the contact us tab to join our roster.
• 58:38
  Chantal Roberts: So this wraps up another Art of Adjusting podcast.
• 58:42
  Chantal Roberts: If you enjoyed this podcast or this episode, please give us five stars and a review.
• 58:48
  Chantal Roberts: It does help the algorithm pick us up.
• 58:50
  Chantal Roberts: In the meantime, you can contact me at theartofadjusting.com for consulting and training purposes.