Guns, schools and claims – Part 3
Investigating a school-related claim is like any other type of governmental claim.
Last month we began analyzing coverage issues affecting a school’s actions in terms of disciplinary actions. First, the act would have had to be committed by or with the acquiescence of the insured — which might then trigger the “intentional act” exclusion — or be an act for which the insured might be vicariously responsible. Allegations that the school failed to prevent a third party from engaging in a named peril may not necessarily translate into coverage for the school.
Related: Guns, schools and claims: Part 1
Applying coverage
In the case of injury or damage, where this was not the perpetrator’s intent, the parent’s personal liability coverage (section II of the homeowners form) might provide some coverage, although the school board would not qualify as an “insured” under that policy’s definition. This would not prevent a school board from tendering defense to parents and their insurer, however. (See Ohio: Noftz v. Ernsberger, [6th Dist., 1998].) Homeowners policies would provide no coverage to their insureds for damages that were not specifically “bodily injury” or “property damage.”
If the parents have a personal umbrella, “personal injury” might be covered, or allegations of “mental anguish” or “emotional distress” could be interpreted as “bodily injury,” depending on court interpretation in the jurisdiction. If the student’s acts were deliberate, but the parents had no knowledge, coverage could conceivably apply to the parents in such circumstances.
However, if the school knew and either condoned the negative behavior or failed to notify the parents, a tender of defense on the part of the school board might fail. Many teachers, fearing claims by students against them, now carry various types of personal professional liability insurance.
Related: Active shooter tragedies spur insurance questions
Investigating liability
Investigating a school-related claim is like any other type of governmental claim. Depending on the circumstances, there may be outside contracts for review, or school operations conducted by independent contractors, such as food service providers, janitorial services or telecommunication/data processing services. Just because an injury occurs on school property does not mean the school is liable. Many large high schools may experience serious injuries arising out of sports events, the use of gymnasiums or swimming pools, or similar activities.
The claims representative or attorney should determine whether the student’s parents have signed any sort of waiver or release regarding such injuries, which schools may require before allowing a student to participate in athletic events. For injuries caused by another student, careful investigation is needed. Statements from both students should be taken in the presence of parents or attorneys, especially if it is unclear whether any school employees were present at the time, knew about the situation beforehand, or had condoned similar behavior in the past.
Related: Shooting frauds: A workers’ comp risk for insurers
Also take statements from any school employees present regarding the incident and prior condoning of such behavior. In a very serious situation, student witnesses may need to be interviewed in the presence of their parents, especially if there is the potential for litigation.
Carefully review formal reports filed by school administrators. Interview the person completing the report to determine if he or she actually witnessed the event or only heard about it later. Serious injuries or fatalities involving schools, school bus accidents or incidents often attract media attention. Obtain a copy of any broadcast news videos along with any police or fire/EMT reports.
Recent medical news has reported that head injuries sustained in sports (often associated with football or soccer) can lead to permanent brain damage. Therefore, obtain the medical and activities history of any student involved in a head injury claim through the parents (or counsel). Contact teachers or coaches involved in the incident as well as other teachers who may know the student or the student’s past illnesses or injuries. Any information may prove helpful in both determining liability and in mitigating any alleged damages.
Ken Brownlee, CPCU, (kenbrownlee@msn.com) is a former adjuster and risk manager based in Atlanta, Ga. He now authors and edits claims-adjusting textbooks. Opinions expressed are the author’s own.