1. Wilson Elser Wilson Elser Moskowitz Edelman & Dicker LLP www.wilsonelser.com Colorado Springs, Colorado June 23, 2007 Martin M. Ween Senior Partner 63 rd Annual Convention & Expo Association of TeleServices International Five Biggest Claims Against ATSI’s E&O Insurance Program: What Lessons Can Be Learned Albany Baltimore Boston Chicago Connecticut Dallas Houston Las Vegas London Long Island Los Angeles Miami New Jersey New York Orlando Philadelphia San Diego San Francisco Virginia Washington, DC White Plains Affiliate Offices: Berlin Cologne Frankfurt am Main Munich Paris

2. Wilson Elser Wilson Elser Moskowitz Edelman & Dicker LLP www.wilsonelser.com Claim #1 Claim by the family of a patient who died from internal bleeding after undergoing surgery at an outpatient facility. It was alleged that the telephone answering service for the facility failed to verify that an on-call physician responded to four telephone calls. The telemessaging service argued that it was a “call and cancel” account, while the facility argued that it was a “follow-up account.” As a result of mediation and settlement negotiations, this claim was resolved for an amount in excess of $400,000.

3. Wilson Elser Wilson Elser Moskowitz Edelman & Dicker LLP www.wilsonelser.com Lessons to be learned Contracts between telemessaging services and their clients should be clear as to the nature of the services to be performed, as well as what is not to be performed Contracts should be reviewed periodically and amended if there is any change in the scope of work or nature of the arrangement

4. Wilson Elser Wilson Elser Moskowitz Edelman & Dicker LLP www.wilsonelser.com Claim #2 Lawsuit alleging that an answering service failed to notify a doctor or his medical group as to the admission of the claimants’ son to the hospital, so that the doctor could examine and treat the child. The child allegedly sustained permanent heart damage after going into cardiac arrest. The answering service maintained that it notified the doctor but could not prove it as it only retained written call logs and audio tapes for 30 days A settlement was reached in the amount of $20,000 after discovery revealed that there were other means by which the answering service could prove the message had been passed on.

5. Wilson Elser Wilson Elser Moskowitz Edelman & Dicker LLP www.wilsonelser.com Lessons to be learned The longer records can be retained, the better off you will be in the event a claim is asserted against you. While it would be ideal if records could be retained forever, a rule of thumb that may be employed is to retain the records for as long as the statute of limitations on any cause of action that may be asserted against an answering service.

6. Wilson Elser Wilson Elser Moskowitz Edelman & Dicker LLP www.wilsonelser.com Claim #3 Claim alleging that an answering service involved in locating underground utility cables for construction projects never dispatched a request for location of cables. The claimant alleged that an underground cable was cut during construction allegedly resulting in damages in excess of $12,000. A review of the answering service’s records appeared to confirm the answering service’s contention that it never received the request. A settlement was reached representing a savings on defense costs.

7. Wilson Elser Wilson Elser Moskowitz Edelman & Dicker LLP www.wilsonelser.com Lessons to be learned Unfortunately, the only lesson to be learned from this claim is that even if an answering service does everything right, a claim can still be made against it. It is simply impossible to prevent a claim from ever being asserted against you.

8. Wilson Elser Wilson Elser Moskowitz Edelman & Dicker LLP www.wilsonelser.com Claim #4 The contract between an answering service and a physician’s group required the service to contact the group’s on-call physician. At a patient’s request, the answering service instead contacted the patient’s treating physician. The patient died and a lawsuit was brought, wherein it was alleged that the answering service breached its contract Even if the answering service did not follow its client’s instruction, we argued that this alleged failure did not cause the patient’s death. This claim was ultimately resolved for a payment of $65,000.

9. Wilson Elser Wilson Elser Moskowitz Edelman & Dicker LLP www.wilsonelser.com Lessons to be learned All operators and other personnel must be fully and periodically trained and instructed to follow agreed upon procedures, including what to do in emergency situations. Contracts should also clearly set forth what the procedures are for as many situations as possible You may also want to consider including limiting language in the contract as to liability for situations that are outside the scope of what is set forth in the contract

10. Wilson Elser Wilson Elser Moskowitz Edelman & Dicker LLP www.wilsonelser.com Claim #5 A telemessaging service contracted with a security company, whose client was a paper manufacturing company. A claim was asserted against the telemessaging service and others for allegedly failing to properly forward an alarm as to a sprinkler going off in the warehouse, purportedly resulting in significant damages to the paper company. The telemessaging service waited over 1 year to report this matter to its insurer, until a lawsuit was filed. After discovery took place, a settlement was reached, with payment of $50,000 on behalf of the answering service.

11. Wilson Elser Wilson Elser Moskowitz Edelman & Dicker LLP www.wilsonelser.com Lessons to be learned Claims must be reported to the insurer as soon as possible, as delaying in reporting claims can lead to denials of coverage. Promptly reporting claims may result in a savings in time and expense. In addition, a conflict existed between the testimony of two employees as to exactly what happened. If the insurer had been advised earlier, an investigation would have disclosed this information and allowed the insurer to clarify what exactly happened.

12. Wilson Elser Wilson Elser Moskowitz Edelman & Dicker LLP www.wilsonelser.com General Considerations Relating To Claims Against Telemessaging Services

13. Wilson Elser Wilson Elser Moskowitz Edelman & Dicker LLP www.wilsonelser.com I.Prevention II.Mitigation III.Resolution

14. Wilson Elser Wilson Elser Moskowitz Edelman & Dicker LLP www.wilsonelser.com Contractual Protections I.Contractual provisions, such as liability limitation clauses and damage limitation clauses II.Clear description of duties and responsibilities Prevention of Claims

15. Wilson Elser Wilson Elser Moskowitz Edelman & Dicker LLP www.wilsonelser.com Internal Policies and Procedures I.Record-keeping, including record retention programs II.Agreed-on “scripts” III.Checklists IV.Written procedures manuals V.Documented training of personnel VI.Clear disclosure of applicable policies and procedures to the client VII.Attention to detail, enforcement and communication Prevention of Claims

16. Wilson Elser Wilson Elser Moskowitz Edelman & Dicker LLP www.wilsonelser.com I.Promptly notify insurers to prevent coverage problems and to allow the insurers and their representatives to investigate, appoint legal counsel and take other steps II.If the health or safety of someone can be protected, or if the incurring of damages be reduced or eliminated by quick action, you may have a legal and/or contractual duty to act III.When a claim is made, gather information as soon as possible, which should be separated and preserved IV.Don’t talk to anyone about the claim, until you have spoken with your insurer and/or your attorney V.Cooperate with the insurer, its representative and legal counsel Mitigation of Claims

17. Wilson Elser Wilson Elser Moskowitz Edelman & Dicker LLP www.wilsonelser.com VI.Other parties may have caused or contributed to the problem and therefore, should be involved. You may be able to demand that these other parties defend and/or indemnify you for your losses VII.Obtain errors and omissions insurance, as it helps to reduce your exposure to damages and defense costs and gives you an opportunity to obtain professional and legal advice Mitigation of Claims

18. Wilson Elser Wilson Elser Moskowitz Edelman & Dicker LLP www.wilsonelser.com Resolution of Claims I.After analyzing liability and exposure versus the cost to settle, it may be a good time to settle, as settling claims can save on the cost of defense and end a potentially distracting and time consuming situation II.If a settlement is reached, clearly define the dispute that is being settled, in order to ensure that you are not giving up any rights or claims that you may want to later assert III.Try to include as many parties as possible in the settlement

19. Wilson Elser Wilson Elser Moskowitz Edelman & Dicker LLP www.wilsonelser.com IV.A settlement is accomplished by all parties executing some form of written settlement agreement or release, which should be drafted, or at least reviewed by legal counsel who are licensed to practice law in the state which laws will control interpretation of the document V.The written agreement or release should fully describe the dispute that is being settled, as well as how much is being paid; who is paying; who is being paid; and by when the payment is to be made. VI.Make sure your insurer is involved Resolution of Claims

20. Wilson Elser Wilson Elser Moskowitz Edelman & Dicker LLP www.wilsonelser.com For more information, please contact: Martin M. Ween Senior Partner 150 East 42 nd Street New York, NY 10017-5639 T: 212.490.3000 F: 212.490.3038