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Presented by Jim Gill Southwest Risk Services / Berkley Risk Administrators.

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1 Presented by Jim Gill Southwest Risk Services / Berkley Risk Administrators

2 Are GREAT at Medical lingo Forms lingo Calculating stuff Are less GREAT at Liability/negligence determinations Being plaintiff attorneys!

3 TWO-year statute of limitations for negligence claims vs. private entities Year #1: Claimant has exclusive recovery rights Claimant needs to Settle and pay the WC lien File a lawsuit Get a reassignment form the WC carrier/self insured Year #2: WC carrier/self insured has exclusive recovery rights if there was no settlement, suit or reassignment

4 ONE-year statute of limitations for negligence claims vs. public entities ONLY if you file a statutorily compliant notice of claim within 180 days after date of loss/discovery of negligence-based damages Injured worker and WC carrier/self insureds rights against responsible third parties run concurrently Unless the injured worker settles/repays the WC lien, or gets a reassignment, or files suit, the WC carrier/self insured needs to file a notice of claim within 180 days and suit within one year

5 …wont THEY be the ones to figure that out? …wont THEY be the ones to hire an attorney and pursue a claim (on which I can assert a lien)?


7 AZ is a pure comparative state If a third party is even 1% at fault for injuring an employee, they pay 1% of the total damages DONT assume theres no recovery potential just because your injured worker was mostly (maybe even 99%) at fault for causing his own injuries. Even 1% of what youll pay on a serious injury claim can be a big number!

8 Duty owed Duty breached Proximate cause Actual damages


10 Rear-end auto accidents Left turn accidents Failure-to-yield accidents Other vehicle ran a stop sign or red light Other vehicle emerging from a private drive

11 What if it looks like your employee caused the accident? Maybe he/she did…but were they really 100% at fault? What do witnesses say? What does the police report say What do accident scene photos tell you?






17 If youre on someone elses property, youre either An invitee/business invitee Invited by the property owner, generally to benefit the owner (i.e., store customers) Owner has a duty to make the property reasonably safe A licensee Enters property for his own purpose, or as a social guest, and is present at the consent of the owner, usually for a business purpose Owner has a duty to warn of known hazards A trespasser On the property without the owners permission Owner has duty not to intentionally injury or set traps

18 Determine your employees status on the property Determine what duties the property owner owed the employee Were those duties breached? Was that breach the proximate cause of your employees injuries?

19 Was the property well-lit?

20 If there was liquid/debris on the floor, was their a reasonable cleaning/maintenance schedule?

21 And, did the property owner try to warn of the dangers?

22 Were there physical defects that should have been discovered/repaired?

23 Were there code violations (stairways, handrails, etc.)?

24 Were there prior complaints about conditions? (i.e., was the property owner on notice of a dangerous condition?)


26 The manufacturer owed a duty to the injured party The manufacturer breached that duty The breach of duty was the cause of the injured persons injuries The injured person suffered actual damages as a result of the breach

27 Express warranties Specific claims made about a product Implied warranties Of fitness for a particular purpose Products should be fit for normal use and foreseeable misuse

28 Defenses against product liability claims include: Misuse (non-foreseeable) by the injured party Product alteration (either by the end user/injured party or by someone in the stream of commerce) Unusual reaction (ex.: a 1-in-a-million allergy or sensitivity to a medicine, lotion, etc.) Product design/materials were state of the art at the time of manufacture

29 Stream of commerce Includes EVERYONE who was involved in the sale or distribution of a product, starting with the manufacturer If you are pursuing a products liability claim, the general rule would be to put everyone on noticeand let each party Document they didnt alter the product while it was in their care, custody and control Tender the defense of the claim upstream toward the manufacturer



32 A product can be defective if it has: Improper instructions or safety warnings Improper or missing safety guards/shields Improper or missing safety interlock devices Improper or missing shutoff switches/devices












44 Was the product safe for regular use and foreseeable misuse? Were the instructions and warnings sufficient? Were there appropriate safety interlocks? Were there appropriate shut-off switches?

45 The Plaintiff Attorney Credo 1. If the facts are against you, argue the law 2. If the law is against you, argue the facts 3. If the facts and the law are against you, yell like hell



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