Summer Liability Basics For Adjusters

A lawn mower throws a rock through a car window. A kid hops a fence to grab a baseball near a backyard pool. A trampoline turns one “fun afternoon” into a catastrophic injury demand. Summer liability claims love to masquerade as simple, and that’s exactly when adjusters get burned by policy language.

We dig into the fundamentals we rely on when analyzing homeowners liability and similar third-party claims: who qualifies as an insured, what “resident relative” really means, and how a live-in partner or a college-aged child can create instant coverage issues. Then we get practical with the definitions that decide outcomes, including bodily injury vs property damage, how to think about value and diminished value, and why “occurrence” is more specific than everyday speech. From there, we follow the real workflow: read the full policy, check the edition date, find the motor vehicle exclusions, and watch for exceptions and endorsements that give coverage back under tight conditions.

The backyard hazards are where it gets real. We unpack lawn mower liability and the “service the residence premises” trap, pool claims and attractive nuisance duties, wet-surface slip and falls, trampoline exclusions, and fire pits where intent vs harm can decide coverage. We also cover the money topics that can make or break a file: umbrella policy notice, keeping excess carriers in the loop, MedPay as a control tool, and how Medicare and Medicaid liens can block “quick payments” if you do not handle reporting correctly. We close with dog bite claim trends, including New York’s Flanders v Goodfellow shift and what it means for negligence arguments.

Subscribe to Art of Adjusting, share this with an adjuster who handles liability, and leave a review so more claims pros can find it. What summer claim has given you the biggest coverage surprise?

For more insights, you might consider a career in liability adjusting or if you're searching for reliable adjusting services, visit Auten Claims Management.

To explore more about Chantal Roberts and her contributions to the industry, visit CMR Consulting.

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Transcript

Welcome And What Adjusters Do

William Auten 0:06

Hello, I'm Bill Auten of Auten Claims Management.

Chantal Roberts 0:09

I'm Chantal Roberts of CMR Consulting, and welcome to the Art of Adjusting Podcast.

William Auten 0:14

Today we're going to talk about life as an insurance adjuster from the perspective of property, auto, liability, or workers' compensation adjusters. 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. Hi, Bill. Hey Chantal, how are you? I'm doing well. Thanks. How are you? Good, good, good. It's uh it's almost summer. It's not quite, but I I know.

Chantal Roberts 0:40

I find it really hard to believe how quickly everything has gone by.

William Auten 0:45

It does fly, especially when you're getting old. I just remarked to my I'm working from home today. You can see my background.

Chantal Roberts 0:52

Yeah.

William Auten 0:52

This is uh I'm approaching this, will be the longest place I've ever lived in one spot. Really? Yeah. Wow. I think we're coming up on 11 years.

Chantal Roberts 1:02

So wow, that is crazy.

William Auten 1:05

I've been a mobile kind of a guy, always been moving since a kid. So uh, but it just dawned on me. Wow, it's been 11 years already in this place.

Chantal Roberts 1:14

Wow, that's great though. Well, you've got your roots because you've got your company there and and everything, so yeah, that's good. And everybody be sure to send Bill some work because he um is totally not busy at all. At all. Yeah, we just knew around here in the upper New York State area. It's whatever goes down to Albany and everything.

William Auten 1:34

Yeah, thank you.

Chantal Roberts 1:36

Yeah, you're welcome. Hey, what are friends for? 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. And then other people are randomly contacting me saying that they can make my podcast better.

William Auten 1:56

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. She can uh she'll tell tell you what they did wrong and tell you what to do next.

Who Counts As An Insured

Chantal Roberts 2:11

Because I'm always happy to tell you where to go and what you can do with yourself once you're there. Uh so we are talking summer liability since we're in May now. Oh my gosh. And so we're gonna be talking about what's covered, what's not, and why it matters. And our summer claims, they can really look simple until we get to the policy a lot of times. Uh, you know, the thing that I always have to look up is the lawnmower issues and policy language changes. We're gonna be talking about the ISO standard policy. Uh so your what is it, your mileage may vary depending on what policy you have. 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. So, Bill, do you want to go ahead and talk about how we should, as adjusters, analyze these losses?

William Auten 3:14

Yep. Yeah. So uh one of the first things we have to do is identify who the policy holder is and um who is not. 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. Now, if you've got resident relatives living with you, they're all insureds. So but you have to be able to prove that that's their main residence. 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. So if they make a mistake to cause injuries or damages to somebody else, you might have a coverage issue there. So those are all things to think about.

Chantal Roberts 4:09

Um like my brother-in-law, he lives here with us, his driver's license has our address. He isn't insured, which makes me think maybe I should raise my limits a little bit.

William Auten 4:22

The whole umbrella policy.

Bodily Injury Versus Property Damage

Chantal Roberts 4:23

Yeah. 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. But then, you know, now he's of course living away. But when he up to 26, I believe, is what you can do in most policies. Sometimes it's 24. So what else?

William Auten 4:48

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. Now, bodily injury sounds pretty simple. Um, did they cut their arm? Did they break their leg? Did they break their nose? Uh did they bleed anywhere? Um, that's pretty good indicator that there's a bodily injury. But if they just got sad, that's probably not a bodily injury. Um, so in most cases. In most cases, yeah. Yeah.

Chantal Roberts 5:16

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.

William Auten 5:31

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. And um, you know, what value that actually has is debatable. Um but the uh property damage is another important um consideration. Is there actually property damage? 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? And that's really the the test of of whether there's damage. Um there's some things that can't be considered property damage, like um like loss of money. So on a commercial policy in particular, it's tangible physical property uh is what is considered property damage. 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.

Chantal Roberts 6:45

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. 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. And uh hold on, I feel like I'm gonna sneeze. Um let it rip. 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.

William Auten 7:26

Um so one could argue that that that is all you owe is the diminished dish diminishment of of value. Uh so here's how it works on the on property claims dealing with real estate losses. So let's say you've got a house that's damaged by your insured's negligence. So you have a contractor and they do something and it like cut a sprinkler line or something.

Chantal Roberts 7:51

Um, not that I would know anything about that, see my Facebook post.

Occurrence Tests And Reading Exclusions

William Auten 7:58

Well, I'm talking more about uh total losses. 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. Then if it's a total loss, we you know, in New York, I I know other states do this as well. 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. And what you wind up doing is kind of averaging all those together to come up with a reasonable value. And that's a those are that's all based on statutes that are written within insurance law, insurance-related first party claims. And as an adjuster, that's probably what most of your background has been. 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. Okay, so you can have it. You can have it, and that's actually the the way you value it. Right. 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. Well, let's just do an easy number, two fifty thousand dollars. 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. It's the amount that the value uh was diminished by the event. 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. The value uh is demonstrated by how much water is in that bucket. If the loss occurs and now the bucket is half full, you want to get them back to where they were before the fire. So you have to put water back in. So that's the way I look at that, a diminishment of value. And when it comes to a vehicle, I know you know we have repairs and things like that, the the actual cost. 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.

Chantal Roberts 10:27

Yeah. So we also need to find out if it happened from a quote, occurrence end quote, which is the liability aspect of it. 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. 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. Gotta look for exclusions.

William Auten 11:16

Yep. Yep. If it if it uh if it does pass the test of an occurrence, and it sounds so silly, what's an occurrence? 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.

Chantal Roberts 11:38

Right. Absolutely. 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. And the policy tries to, but there you go. So, you know, you're looking at exclusions after you make sure that you have an occurrence. 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. And lay people believe that we as adjusters are always looking for exclusions. It's not that we're looking for ways to deny the claim, it's that we need to find coverage. And the only way to find coverage is basically to prove a negative.

William Auten 12:37

Right. And and I would argue that it's not the adjusters that are looking for ways to not pay a claim. That was done long before uh the claim ever happened. That was done when the policy was written. 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. And that's why those things are in there. Our job is to just see what those lunatics wrote.

Chantal Roberts 13:06

Exactly. Exactly. 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.

William Auten 13:29

Unless they put this endorsement on there that changes everything anyway. Right. And uh that's why I say lunatics when I talk about the folks that draft these things.

Chantal Roberts 13:39

Which is also the reason why you have to read the entire policy every single time, every page. Yes.

William Auten 13:44

And will it turn you into a lunatic to read them? Yes.

Lawn Mower Coverage Traps

Chantal Roberts 13:47

Yes, it will. So let's jump into lawnmowers, one of one of my favorite topics. And this is one that a lot of people think that they know. Everybody thinks, oh yeah, lawnmower is covered. Great, except for maybe when we're mowing our neighbor's yard or whatever, depending on what the policy says. So for example, I have a neighbor next door who mows our elderly neighbor's yard. Would there be coverage for my next door neighbor who mows his yard, mows the neighbor one door down yard?

William Auten 14:30

Depends. Yeah, so the language is that it must be used primarily to service the residents' premises. So, what is primarily? That means probably more often than not. 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. And I see that a lot around here. Really? Oh, yeah. We we live out in the country here. Oh you never know what you're gonna see.

Chantal Roberts 15:04

See, well, in Arkansas, I guess it's it's uh we get it, we get four-wheelers. 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. But again, you know me, I like definitions. 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. But even the manuscripts may be based off of the standardized policy. A homeowner policy will exclude motor vehicle liability. A motor vehicle is a self-propelled land or amphibious vehicle, at per the definition, which a lawnmower, a riding lawnmower would fit into. 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. And of course, a residence premises is where someone lives.

William Auten 16:13

Um and you're saying letter A, not A residence premises.

Chantal Roberts 16:18

It's instead of the residence premises. So like service A residence premises. So like my neighbor servicing my other neighbor's yard would be okay because it is a residence. 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. 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. And so I've I've pulled a lot of his uh things on here. Um also for liability uh motor vehicles are excluded, and um there's still no coverage. 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.

William Auten 17:33

A premises, yes.

Chantal Roberts 17:34

Now that one says solely. So again, if you do a side gig or your kid does a side gig, then it may not be covered.

William Auten 17:45

Right.

Chantal Roberts 17:46

Um, so something to think about when you as an adjuster, because as an adjuster, you're sitting there going, Great, there's coverage. This is when you need to go ahead and get that recorded statement done. And drill the matter. Yes, and drill down on getting all of the details from the insured. When do you mow someone else's yard? When do you when does your kid mow someone else's yard? When does when do you mow the church's yard or whatever?

William Auten 18:15

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. And then there's more utility ones that have speed governors on them. They're they're not designed to go fast, they have beds designed to haul materials and stuff. Um they're clearly more utility than recreation. Right. But uh its usage is really what governs it. 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. It has to be uh used to maintain the property, depending on the policy language. 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.

Chantal Roberts 19:19

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. Uh and so it actually says our HO3511 says uh we're not gonna pay for property damage for damage to property of others. Um where the ownership, maintenance, occupancy, blah, blah, blah, watercraft and motor vehicles. It doesn't apply to motor vehicles that is a just designed for recreational use off public roads. And I would say riding a lawnmower is not recreational use.

William Auten 20:03

So right, unless you're using it for recreational use.

Chantal Roberts 20:09

Um I wouldn't use a lawnmower for recreational use. What recreational use would you have for a lawnmower? Please educate us, Bill. I want I'm gonna take an upsert of this.

William Auten 20:20

I will have to send you a series of um photos I took last year at the county fair for the lawnmower tractor poles.

Chantal Roberts 20:30

Oh, okay, okay, okay. I'll I stand corrected. I stand corrected.

William Auten 20:36

Um you should see these things. 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. It's it's actually amazing. I'll have to share some of the photos with you.

Chantal Roberts 20:50

Oh, yeah, yeah. We we need to see these on LinkedIn as well. Okay. 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. And so the HO30322, which is the most recent, and honest to goodness, I have not seen this in my expert work yet. If anything, I see the 0511, which is again one of the reasons why addition dates are important. So always make sure you're reading the correct addition date of the policy. But also, I see a lot of like you, manuscript policies. In this particular instance, um, they have changed, they've amended the lawnmower exclusion. So there's coverage for a writing lawn mower that at the time of occurrence is being used to mow a lawn. So then our joy riding ones would not be effective.

William Auten 21:57

There we go.

Chantal Roberts 21:58

Yes. So if you're on, oh my goodness, if you're on YouTube, you can see these things. This is great. Just another. Oh, oh, you know what? I have seen these. We have a sunfell sunflower festival that um shows these.

William Auten 22:20

These guys really get into it too. It was a riot. It was just so much fun watching these guys. And they go so slow.

Chantal Roberts 22:27

Oh, yeah, yeah, yeah. There's no like buildup of anticipation. You're just like, yeah.

William Auten 22:35

Anyway, I'll that's enough for now. But uh yeah. So there's a lot of fun you can have with lawnmowers, apparently.

Chantal Roberts 22:42

Yes, I guess there are. Yes. So again, here's my thought though, too, for our adjusters is everybody is talking about a riding lawnmower. And of course, as an expert witness, this is one of the things that I key up on is of course, wording matters. And that's one of the things that you and I talk about a lot, Bill. And so my thought is if the definition speaks about a riding lawnmower, what about a push mower? Uh my my yard could have a riding lawnmower, but you probably a push mower would be fine.

William Auten 23:21

Yeah, uh, so it's a it's not a vehicle. Uh-huh. You know, it's it's a device that you push.

Chantal Roberts 23:30

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. Okay.

William Auten 23:42

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?

Chantal Roberts 23:57

Well, yeah, I don't see a weed whacker as being something that we would ride, but we keep talking about lawnmowers, lawnmowers, lawnmowers.

Speaker 1 24:03

Right, right, right.

Chantal Roberts 24:04

And and so there is a difference. There's the writing kind and there is the the push kind.

William Auten 24:10

And so one exclusion in here actually said riding lawnmower.

Chantal Roberts 24:15

Yes, it did. Uh it it it specifically would would say riding lawnmower. And um, I because I had put in our notes, but I can't find it right now. But uh I know that I have it here.

William Auten 24:31

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. That means there's no coverage if you're going to the to the liquor store.

Chantal Roberts 24:47

Uh so all you are Kansans out there.

William Auten 24:50

That's for you, Chantel.

Chantal Roberts 24:53

All my cousins, uh, y'all gotta know it's not gonna be covered. You know, and and lawn mowers do throw up rocks. Um you know, uh, they'll chew up, I guess, a toy or something like that, um, injuries to passerbys. 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. Um so you gotta know.

William Auten 25:22

Lawnmowers in general can be very dangerous. And the one thing I would say to anybody listening is do not walk backwards with a push lawnmower. Um I've seen some terrible, terrible injuries uh to feet in particular. So um just go forward and uh don't go backwards.

Chantal Roberts 25:45

Right. So still an occurrence, yes. Uh you need to look at negligence versus our accident. You know, our negligence rules, like an ABCD rule that we've talked about. Uh, know if we're talking about bodily injury versus uh property damage. Um, if you have a business use on the side or your kid does and is using your lawnmower, there may be a problem. Uh yeah. 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. So the same mower could be covered at 10 a.m. and excluded at 2 p.m.

William Auten 26:38

And that's why they're doing with it.

Chantal Roberts 26:40

That is correct. And and that's why it is so important for you uh uh adjusters to take a good recorded statement.

Speaker 1 26:50

Yeah, yeah, all right.

Chantal Roberts 26:52

Pools. Let's talk about pools because my neighbor has a pool, and I've been learning all about Overland Park's rules about pools. Fascinating. Yeah, we're very bougie. I don't know if you do that or not, but we are very, very bougie over here.

William Auten 27:11

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. And if it's uh an in-ground pool, there has to be a fence around it so to prevent anybody from coming in. 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.

Chantal Roberts 27:37

Yeah, so here in Overland Park, they want the pools to have covers on them. Uh the gate has to open outward. 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. And I'm thinking, well, that's not very good for kids. And then the the gate has to be five feet high, like the latch has to be at least five feet high. And I'm also thinking, you know, kids are pretty inventive, they can get in with a even a five foot high gate. But this is what really made me think about this. 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. And so they'll, you know, hop in or uh open the gate and come in, get their ball and head right on back. It happens. Well, the neighbor really has the gate locked. That one didn't have a key on it because it backs up to the green space. The gates the that fence is only four feet tall.

William Auten 29:04

Oh, okay.

Chantal Roberts 29:05

So the kid who has to be what 11, 12, 13, something like that, hopped over the fence to get the ball. And and and so is are our insureds then protecting the children? Because you gotta think about it. If I were to hop over the fence, I'm trespassing. I don't, I'm an adult, I don't have permission. 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. 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.

William Auten 29:50

Attractive nuisance.

Chantal Roberts 29:52

Yes, attractive nuisance.

William Auten 29:54

Yeah, well, and and uh children are are uh unable to make their own decisions in life too. 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. Um so there's that too. 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. But nothing absolves you from uh your duty to recognize the risk involved in owning that pool. 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. Umbody really wants to find something bad has happened in their pool.

Chantal Roberts 30:57

God know. But that's a really great idea for adjusters to ask about. Do you have ring cameras in your backyard or something to that effect? So great question to ask because we do have a lack of supervision issues. You know, back in the 80s, they they really believed in the Darwin theory of raising children. 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. There was no supervision. You know, uh they told us to go play out of the streets back in the 80s. You know, don't get hit by cars. Right. Watch out for the cars, but don't cars will will hurt you. There was no yielding for children playing in the street kind of deal. Uh so yeah, you've got the lack of supervision. You have the attractive nuisance like I was talking about. Those things are really interesting to kids because kids want to play in the pools. 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. 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. But I mean, she's she would look, she's complying with code.

William Auten 32:18

Yeah.

Chantal Roberts 32:19

Uh, even though maybe the spirit of the law is to have a five-foot fence, regardless. Um, you know, like I said, I literally saw a kid jump over the fence to to get the ball.

William Auten 32:34

Um laws and regulations can't protect you from everything, and insurance policies can't protect you from everything either. 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.

Chantal Roberts 32:59

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. But what if you are a gym or something like that and you have a pool? Well, you usually would have some kind of tile or whatever. So you need to be sure that your insured is walking that area a lot, or their employees are walking that area a lot. You've got those wet floor signs, um, maybe mopping up a big puddle, uh, even though the floor would still be wet. 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.

William Auten 33:55

Right. Yeah. Um we had a we had a case where someone had outdoor tile in a parking lot and it was a sloped parking lot. And it was hard to walk on when it was dry. I can't imagine what it'd be like when it was wet. Um, but yeah, um, anyway.

Chantal Roberts 34:17

Yeah.

William Auten 34:17

So tile around a pool makes sense. Tile in a parking lot, probably not.

Chantal Roberts 34:22

Not so much. 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. 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. And then what I would recommend that you do is also call the carrier and place them on notice. Because even though that's not maybe technically your job, unless, unless we're talking commercial, then maybe it is. Um sometimes the insurance doesn't do it, and then they can be denied again for like notice for the umbrella. 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.

William Auten 35:44

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. 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. Um so always good to keep dialogue with those folks too. And I think most of the times the umbrella uh carriers that I've dealt with, they're appreciative of that. Um but they're not they're not doing the same investigation that we are, right? You know, on the underlying limits. You know, we're we're doing most of the work. They'll analyze it afterwards. 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.

Chantal Roberts 36:43

Absolutely, yeah. So what about uh, you know, I think about medPay too in in these kinds of situations. Uh what do you um think about that? 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.

William Auten 37:09

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. And from that standpoint, it's always been kind of a tool. Um it's usually not a large limit. We've see some policies with a thousand dollars. That's not gonna do, you know, maybe take care of prescriptions. Um now it's other policies have higher med pay, you know, ten or fifteen thousand dollars. Um nonetheless, uh as I said, it's a tool to to try and you know keep control of the claim. It it complicates things with Medicare because we can't even make the MedPay until we get the Medicare lien.

Chantal Roberts 37:57

So is that true? I did not know that.

William Auten 38:00

Yeah. So um you know, we just don't know what what that lien is going to be. 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. So you know, we don't want to do that.

Speaker 1 38:19

Yeah.

William Auten 38:20

Um so it's it is kind of a chicken and egg thing with the CMS liens.

Chantal Roberts 38:25

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. And by turn in, I mean you report them, see if they are Medicare or Medicaid eligible. And because they have an automatic super lien. 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. 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. And and so there's a lot of steps you have to go through. It's one and and I have had attorneys go, look, the kid is three years old. I'm like, don't care, do not care, gotta run them through it, you know. So um, unless you want to get me something.

William Auten 39:28

My clients are like that. They they they we gotta get that that reported. And um, it's not just Medicare, it's Medicaid also.

Trampolines Exclusions And Supervision

Chantal Roberts 39:37

Um Right, right. It's both. Uh so yeah, um, we should do some. I'll I'll write that down. We should we should um absolutely give that a talk over. So we're in the backyard talking about pools uh and lawnmowers and and everything. And you mentioned trampolines, and so those things. Man, do you remember those things in the 80s? They were so much fun. You would fall off and break an arm. Nobody cares. Because again, it's the Darwin theory uh of child rearing.

William Auten 40:09

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. 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. 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. 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. Right. So then you've gotta you've gotta ask yourself, do I want to find a way to eliminate this trampoline exclusion? Or do I want to find a way to eliminate this trampoline? Yeah, I would say go for the second option.

Chantal Roberts 41:09

Yeah, which would be which would be less expensive. 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. And then I have even seen, which I was like, oh, that's a great idea, but my god, that's expensive. Um trampolines that were built level with the ground because they've dug a pit in in the ground. So when the kid falls off, they just fall on the ground, right? Yeah, it's a great idea, but also yeah, well, falling off the trampoline is one risk.

William Auten 41:56

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.

Chantal Roberts 42:04

Oh, yeah, yeah, yeah. 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.

William Auten 42:22

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.

Chantal Roberts 42:36

Because remember, because remember, your duty changes when there's a child, even though you've invited the child over. I mean, uh obviously. 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. No horseplay, knock it off.

William Auten 43:01

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.

Chantal Roberts 43:11

Um yeah, so you've got safety features, you've got supervision that you have to do. 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.

William Auten 43:30

Yeah, the best way to protect yourself from trampoline claims is not insurance coverage, it's avoidance.

Chantal Roberts 43:38

Yeah. Yeah.

William Auten 43:39

Um which my kids always wanted trampolines, and dad was always I was always on the no train. Sorry, kids, let's just why don't we just go run at the track at school instead?

Chantal Roberts 43:52

Um, you know, I always wanted a trampoline and my parents always told me no. But uh to be fair, my parents also said I could never go skiing too, because they were always. And so I desperately want to go skiing sometime. Not water skiing, snow skiing. I do want to do well.

William Auten 44:04

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.

Chantal Roberts 44:13

Um I would think it would be.

William Auten 44:16

Yeah, it is for the most part, but you you get some you get some catastrophic injuries, somebody's getting sued.

Fire Pits Intent Versus Harm

Chantal Roberts 44:23

Oh, yeah, yeah, yeah. I mean, you know, because you can fall off a horse and have a really good major concussion. Um, so uh fire pits and grills, of course, everybody is grilling. 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. And you're like, no, why did you think that was a good idea? First of all. Um, so yeah, we've got your friendly fire and your hostile fires. So can you talk about that?

William Auten 45:03

Yeah. 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. 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. Um you should have informed your liability uh carrier long before subrogation happens, anyway. Yeah, absolutely. But um again, that's another avoidance thing. You know, you're better off uh not having a fire in a windy day.

Chantal Roberts 45:53

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. 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? And you should look up what the wind is at uh the wind speeds, and we've talked about various weather websites.

William Auten 46:19

Yeah, for sure. 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?

Chantal Roberts 46:30

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.

William Auten 46:40

People run around them, kids run around them. Yeah, yeah. Um, I had uh claim where a woman uh stood up off a bench and lost her footing and fell right into the fire. 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. It's happened during the daytime, you know. We have oh yeah, all kinds of fun. 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. Uh that's a bad day. So yeah.

Chantal Roberts 47:28

Uh we've got we've talked previously, you and I, about in the intentional acts exclusion. 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.

William Auten 47:49

And it's not I'm sure it was brilliant. I just don't remember it.

Chantal Roberts 47:52

I will. I well, I'm gonna I'm gonna tell you what it is, and I and I'm gonna give you full credit. 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. 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. Um I want to give an example that I just recently saw. Uh, I'm my husband and I are watching The Rooster. And I don't know if you're watching that show or not. No, but never heard of it. Oh, it's it's good. It's with Steve Carell uh as the main as the main guy. 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. It was a first edition, only translated, like pretty much the only edition in the world uh of this book. It's very, very rare, very special to the guy, blah, blah, blah. 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. So now sparks are going all over the room. She's trying to put it out. The whole house catches on fire. So she intentionally burns the book.

William Auten 49:47

No coverage for the book.

Chantal Roberts 49:48

No coverage for the book, but she unintentionally burned the house down. That there would be coverage. 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. 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.

William Auten 50:16

So I would I want royalties when ISO changes their language to intentional harm.

Chantal Roberts 50:22

I think that I think you should demand that. It it was a very good rethinking of the idea. 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. All of the students immediately go to, oh, that's an intentional act, there's no coverage. And I'm like, Yeah, there would be. It's did he intend there to be harm in that particular instance when he's calling someone a pedophile? Well, anyway. So your negligence will drive your analysis of liability, you know.

William Auten 51:14

You uh your negligence, but your intent.

Dog Bites And New York Shift

Chantal Roberts 51:17

Yes, your intent. Yeah, yeah. Yeah. Um so there you go. That's that's yeah. Uh we've got dogs that are in the backyard. Yeah, yeah. We've we've talked about dogs before.

William Auten 51:32

We have, but we need to update our talk because the law changed here in New York. 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. 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. So you were free from liability. 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. So what that does is removes the concept of negligence from the argument. In New York, it was just a strict liability situation. If the dog bit somebody prior, you are now strictly liable. That's the test. However, this new decision I can't remember the name. Fellows, maybe anyway, the new decision allows negligence to also be made. So now you can argue strict liability and vicious propensity, but you can also argue negligence. 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.

Chantal Roberts 52:50

Um this is a great topic because I have questions. Uh so we'll get into it. 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. Breed exclusions, this is rapidly going out of style because some municipalities and states have said carriers can't exclude certain dog breeds. So be aware of that. 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.

William Auten 53:42

The the new if you're in New York, the new decision is Flanders versus Goodfellow. There you go. There you go. The new law in New York. And that happened, I want to say it was about this time last year, maybe mid-summer. Um I can't find the date, but it was last summer anyway. 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.

Chantal Roberts 54:22

Oh wow. Oh wow. Okay. Well, let's see. Uh we've covered a lot of things and we have in our summer in our summertime sadness of liability claims, I guess.

William Auten 54:38

So uh location it's not just winter that keeps us busy, you know. Everybody thinks slip and falls, and that makes up a huge chunk of what we do, but summer keeps us really busy too.

Chantal Roberts 54:50

We haven't even talked about hurricane claims. Woo! So location matters. 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.

William Auten 55:11

And we talked all about third-party liability here. 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. 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.

Chantal Roberts 55:31

Very true.

William Auten 55:31

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. So there's uh we could uh again do a whole episode on first party only.

unknown 55:46

Yeah.

Chantal Roberts 55:47

Fun. Maybe we will, maybe we won't. I don't know. 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. We don't know anything about it, but we'll make sense.

William Auten 56:07

We have lots of fun here in New York. We could talk about labor law 240, we could talk about dog bites and the new decision, we could talk about the avoid act. Yeah, we could go on and on the board.

Chantal Roberts 56:15

We can go on and on and on. Uh, you know, your intentions matter, intentional acts are covered. 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. No, did I get that backwards?

William Auten 56:34

Backwards.

Chantal Roberts 56:35

Oh, okay. So intentional acts are covered, yeah, because we cover for stupidity. Thank you.

William Auten 56:41

Right.

Chantal Roberts 56:42

So intentional acts are covered, it's intentional harm that we don't cover. Thank you. Right.

William Auten 56:47

Thank you for that. I intended to start the fire in the fireplace, but I didn't intend for it to leave there and burn my house down.

Chantal Roberts 56:53

Exactly. 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.

William Auten 57:07

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.

Chantal Roberts 57:14

Yeah.

William Auten 57:15

And that you have a rental agreement with them.

Chantal Roberts 57:17

Yes, please. So it's not just about, you know, bad luck or anything like that. 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.

William Auten 57:38

Yeah. All right, cleaning crews here. So there's some background noise. I hope that's not bothering too much, bothering you too much.

Recap And Next Topic Teaser

Chantal Roberts 57:45

We're gonna go ahead and conclude anyway. 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. So we're gonna talk more about that. And again, be sure to like, subscribe, share, comment, all of those sorts of fun things.

William Auten 58:08

Absolutely.

Chantal Roberts 58:09

So we'll see you in uh two weeks.

William Auten 58:13

Yes, ma'am.

Chantal Roberts 58:13

Okay, bye.

William Auten 58:14

Take care. Bye-bye. Thanks for joining us on the Art of Adjusting podcast, where we talk about life as an insurance adjuster. Hit that subscribe button real quick and tell all of your adjuster friends to check this out as well. For independent adjusting services, go to www.autin.claims. And for anyone interested in working as an independent liability adjuster, go to the contact us tab to join our roster.

Chantal Roberts 58:38

So this wraps up another Art of Adjusting podcast. If you enjoyed this podcast or this episode, please give us five stars and a review. It does help the algorithm pick us up. In the meantime, you can contact me at theartofadjusting.com for consulting and training purposes.