1. WSDOT Tort Liabilities & Exposures Six Years: 1998-2003 Material for Management Review AG/WSDOT Risk Summit April 5, 2004

2. Overview

3. WSDOT Tort Liability Payments Six Years: FY 1998-2003 Total: $52.1 million on 3,554 claims paid 1

4. Highway Design and Maintenance

5. WSDOT Highway Design and Maintenance Claims Six Years: FY 1998-2003 Where do these claims and liabilities come from? By Amounts Paid 2,210 Claims By Claims Filed 6,326 Claims* 2

6. Over 6 years, 31 cases (2% of 2,210 total paid claims) with payments over $200,000 accounted for $28.7 million (84%) of total liability WSDOT Highway Design and Maintenance Tort Payments Six Years: FY 1998-2003 Each year just a few cases account for most of the dollar liability payments 3 Total value of payments from cases shown resulting in loss less than $200,000 Total value of payments from cases shown where loss exceeded $200,000

7. WSDOT Highway Design and Maintenance Tort Payments Six Years: FY 1998-2003 The 31 significant cases each over $200,000 that accounted for 84% of the general liability payments are classified below: By Dollar Value of Cases Paid By Number of Cases Paid In the large paid cases involving the highway system, design issues were three times as costly and involved twice as many cases as maintenance issues. 4

8. WSDOT Highway Design and Maintenance Tort Payments Six Years: FY 1998-2003 M any major cases involved Joint and Several Liability Most of these cases are settled rather than tried Because of significant financial risks in trying cases (69% or $19.8 million of these significant cases were joint and several) the trend has been to settle these cases 5 31 Significant Cases Paid 18 of these cases were Joint & Several and only one of these was tried. The rest were settled.

9. WSDOT Highway Design and Maintenance Tort Payments Six Years FY 1998-2003 The post 2003 period includes 18 pending cases posing financial risk exposure >$200,000 6 18 Cases* *These cases have been selected into this category simply by reference to the amount prayed for by the plaintiff(s). Summarizing them here and listing them on any subsequent pages does not indicate that a risk of >$200,000 amount has been determined, assigned or acknowledged by WSDOT or the Attorney Generals Office.

10. WSDOT Highway Design and Maintenance Tort Payments Six Years FY 1998-2003 Details on 21 >$200,000 highway design liability cases for FY 1998-2003 7

11. 8 Details on 21 > $200,000 highway design liability cases for FY 1998-2003

12. 9

13. 10 Details on 21 > $200,000 highway design liability cases for FY 1998-2003

14. WSDOT Highway Design and Maintenance Tort Payments Six Years FY 1998-2003 Details on 9 potentially > $200,000* highway design liability cases pending – post FY 2003 11 *These cases have been selected into this category simply by reference to the amount prayed for by the plaintiff(s). Summarizing them here and listing them on any subsequent pages does not indicate that a risk of >$200,000 amount has been determined, assigned or acknowledged by WSDOT or the Attorney Generals Office.

15. Details on 9 potentially > $200,000 highway design liability cases pending – post FY 2003 12

16. 69% ($23.4 million) of the $34.0 million paid on design and maintenance claims resulted from design liabilities (58 cases), although only 4% (273) of the 6,326 claims filed in the period were for design issues. Only 31 paid cases (2% of 2,210 paid claims) accounted for 84% ($28.7 million) of the $34 million paid on these claims in the six years. Design issues were three times as costly ($21.7 to $7.0 million) and involved twice as many cases (21 to 10) as maintenance in paid cases of significance over $200,000. 58% (18 of 31) of the paid cases of significance involved joint and several liability exposures and accounted for 69% ($19.8 million) of the $28.7 million paid on cases of significance and 58% of the $34.0 million paid on design and maintenance claims. Seventeen of the 18 joint and several liability exposure cases were settled because of the significant financial risks in trying these type cases. DRAFT-CONFIDENTIAL WSDOT Highway Design and Maintenance Tort Payments Six Years FY 1998-2003 Reducing Liability Exposure to Highway Design Tort Payments 13

17. Traffic Barrier Conduct statewide inventory of substandard barrier, and document a plan to replace it to include a prioritized list of substandard barrier to be replaced. Conduct statewide inventory of locations warranting barrier, and document a plan to install barrier to include a prioritized list of barrier locations. Continue with the statewide barrier program in the I-2 Safety Improvements subprogram (currently $4M for barrier/$2M for bridge rail) and consider its expansion if warranted. Clarify maintenance requirements regarding upgrading damaged barrier. DRAFT-CONFIDENTIAL WSDOT Highway Design and Maintenance Tort Payments Six Years FY 1998-2003 Reducing Liability Exposure to Highway Design Tort Payments WSDOT and the Attorney General should consider taking the following initiatives to enhance safety, reduce exposure and increase litigation success in these cases 14

18. Intersection Safety Develop and implement Signal and Channelization Prioritized list procedures to ensure statewide consistency. Develop and implement a consistent practice for restriping turn lanes with low cost enhancement funding to include: an inventory of candidate intersections, a prioritization method, consistent limitations on candidate intersections and a justification with headquarters approval. Clarify the Design Manual and Traffic Manual to define required sight distance to be the stopping sight distance on the mainline. Other Traffic and Design Safety Educate employees on proper documentation of safety issues to minimize liability exposures. Match preservation projects to High Accident Location review recommendations to look for opportunities to correct deficiencies (e.g. roadway slope, etc.). 15 Reducing liability exposure to highway design tort payments DRAFT-CONFIDENTIAL

19. Reevaluate the utility pole location program. Conduct Roadway Safety Audits on roadways every four years to address the operational safety of highways. Perform after resolution reviews/debriefs on cases of significance to ensure appropriate corrective actions are considered and taken when necessary. 16 Reducing liability exposure to highway design tort payments DRAFT-CONFIDENTIAL

20. April 5, 2004 AG Risk Summit Notes Highway Design Issues 17

21. Details on 10 > $200,000 highway maintenance liability cases for FY 1998 - 2003 18

22. Details on 10 > $200,000 highway maintenance liability cases FY 1998 – FY 2003 19

23. Details on 9 potentially > $200,000* highway maintenance liability cases pending – post FY 2003 20 *These cases have been selected into this category simply by reference to the amount prayed for by the plaintiff(s). Summarizing them here and listing them on any subsequent pages does not indicate that a risk of >$200,000 amount has been determined, assigned or acknowledged by WSDOT or the Attorney Generals Office.

24. Details on 9 potentially > $200,000 highway maintenance liability cases pending – post FY 2003 21

25. DRAFT-CONFIDENTIAL WSDOT Highway Design and Maintenance Tort Payments Six Years FY 1998-2003 Reducing Liability Exposure to Highway Maintenance Tort Payments Maintenance cases most typically arise from icy, wet or highway shoulder conditions accidents Maintenance cases havent typically involved joint and several liability but usually are cases with seriously or fatally injured parties About 2% (115 of 6,326) of the claims filed involved ice treatment related issues, and some success has been achieved in disposing of ice maintenance cases through summary judgment dismissals (Bird vs. Walton) 22 WSDOT and the Attorney Generals Office should consider taking the following initiatives to enhance safety, reduce exposure and increase litigation success in maintenance cases Review and refine the 2003 Snow and Ice Plan to ensure that wording is appropriate, and that vague or indecisive verbiage is eliminated.

26. Develop a core team to assess the connection between field activities, guidance and training programs offered, and court cases to ensure a solid, defensible position. This 7 to 8 person team should be made up of key AAGs with experience in snow and ice cases, HQ Maintenance personnel, and key region personnel. Incorporate adequate maintenance procedures to ensure that field personnel adhere to the Snow and Ice Plan, and make decisions consistent with its priorities. Continue to develop the "Snow and Ice" data collection system through handheld PDA equipment with outlying shed connectivity, and enhanced snow and ice database. Consider to evaluate, and if warranted and where appropriate consider the advance of the use of anti-icers and de-icers, in lieu of sanding operations. 23 Reducing liability exposure to highway maintenance tort payments DRAFT-CONFIDENTIAL

27. Develop criteria for an appropriate balance between the use of emerging weather technologies and the functional responsibilities of highway maintenance programs. Develop meaningful and dependable processes based on the available state-of-the- art weather technologies to achieve integrated snow and ice programs with weather information. Continue with the strong public messaging campaign related to drivers responsibilities in winter. Develop programs to enhance driver awareness of safety needs for adverse weather conditions. Work jointly with the AG/Torts Division to develop/provide effective training programs for maintenance deposed witnesses or maintenance expert witnesses tasked to testify in court. Perform after resolution reviews/debriefs on cases of significance to ensure appropriate corrective actions are considered and taken when necessary. 24 Reducing liability exposure to highway maintenance tort payments DRAFT-CONFIDENTIAL

28. April 5, 2004 AG Risk Summit Notes Highway Maintenance Issues 25

29. State Vehicle BI/PD Claims

30. WSDOT State Vehicle Bodily Injury and Property Damage Claims Six Years: FY 1998-2003 How do these claims arise? By Amounts Paid 396 Claims By Claims Filed 481 Claims 26

31. WSDOT State Vehicle Bodily Injury and Property Damage Claims Six Years: FY 1998-2003 What is the trend in these cases? 396 Claims Paid481 Claims Filed Over six years, six cases (1.5% of 396 paid) with payments over $100,000 accounted for $2.1 million (57%) of total liability 27

32. WSDOT State Vehicle Bodily Injury and Property Damage Claims Six Years: FY 1998-2003 Details on 6 > $100,000 Cases 28

33. 29 Details on 6 > $100,000 vehicle liability cases FY 1998-2003

34. DRAFT-CONFIDENTIAL WSDOT State Vehicle Bodily Injury and Property Damage Claims Six Years: FY 1998-2003 Reducing Exposure to WSDOT Vehicle Liability Payments WSDOTs claims experience of 2.93 claims per million miles driven by its vehicle fleet (Class 1-5, light vehicles only) in FYs 2000-2003 compares to Ryders 2002 rate of 3.55 (down from 4.71) and the Tampa Tribunes 2000 rate of 1.50. Payment of $1.6 million in four pedestrian accidents and $1.3 million in 153 rear- end accidents accounted for 78% of total payments for these driver inattention accidents, and this indicates emphasis relative to these accidents is needed. 30 Implement a driver/vehicle program consistent with the December 2003 Risk Management Advisory Committee approved incorporation of a State Vehicles and Drivers chapter into Office of Financial Managements Statewide Accounting and Administrative Manual (SAAM). Such a program should include: WSDOT should consider taking the following initiatives to enhance safety, improve performance and reduce vehicle liability Identification of driver categories based on vehicle usage requirements such as type vehicle and/or frequency/duration of use.

35. DRAFT-CONFIDENTIAL 31 Establishment of minimal annual supervisory checking/training requirements for all drivers, regardless of driver category (e.g. verifying unsuspended drivers license or CDL, viewing OFM driving video, discussing best driving practices, etc.) during performance reviews. Establishment of more stringent annual supervisory checking/training requirements for identified high risk categories of drivers (high frequency miles or severity of accident trends). Reducing exposure to WSDOT vehicle liability payments Make job offers to an applicant for a driving duty position contingent upon their providing a current Abstract Driving Record meeting specified requirements. Provide executive emphasis on agency-wide adherence to the rules and procedures in Instructional Letter IL 4056, Accident Reporting and Review, to ensure: reporting and investigating of all accidents, management review of specified accidents and appropriate management corrective action against operators. Perform after resolution reviews/debriefs on cases of significance to ensure appropriate corrective actions are considered and taken when necessary. Determine and establish, if appropriate, medical and/or loss related criteria or conditions that may foreclose employees/volunteers from operating state vehicles or classes of state vehicles.

36. April 5, 2004 AG Risk Summit Notes State Vehicle Liability Issues 32

37. Civil Rights/Employment Law Claims

38. WSDOT Civil Rights/Employment Law Claims Six Years: FY 1998-2003 How and where did these claims arise? By Amounts Paid By Claims Filed 33

39. WSDOT Civil Rights/Employment Law Claims Six Years: FY 1998-2003 What is the trend in these cases? 54 Claims Filed 19 Claims Paid Over six years, three cases (17%) with payments over $150,000 accounted for $.9 million (56%) of total liability 34

40. 35 WSDOT Civil Rights/Employment Law Claims Six Years: FY 1998-2003 Details on 3 > $150,000 Cases

41. DRAFT-CONFIDENTIAL WSDOT Civil Rights/Employment Law Claims Six Years: FY 1998-2003 Reducing Exposure to WSDOT Civil Rights/Employment Law Liability Payments WSDOT has experienced an upward trend in both claims filings and in the amount paid for these claims. Limited liability exposure tends to drive large settlements because of the attorney fees exposure and only three cases accounted for $.9 million (56%) of the total $1.6 million paid. 36 Perform after resolution reviews/debriefs on cases of significance to ensure appropriate corrective actions are considered and taken when necessary. WSDOT should consider taking the following initiatives to improve performance and reduce liability

42. Review diversity training requirements and/or emphasis for adequacy. Provide management emphasis to ensure employee complaints are promptly investigated and appropriately acted upon consistent with WSDOT policies. Continue to focus attention on the periodic review and, as necessary, application of progressive corrective/disciplinary actions for current employees. DRAFT-CONFIDENTIAL 37 Reducing exposure to WSDOT civil rights/ employment law liability payments

43. April 5, 2004 AG Risk Summit Notes Civil Rights/Employment Law Issues 38

44. Attachment 1 – Exec Tort Info Website

45. Attachment 1 Executive Tort Information Website The goal of this website is to provide the WSDOT senior leadership team, together with a limited number of WSDOT executives, with current information on WSDOT tort lawsuits and claims assigned to the Office of the Attorney General (OAG) for handling. Security relative to this information is of paramount importance as it is planned as a robust and dynamic risk/case management communications tool between these two agencies, as well as the Office of Financial Managements Risk Management Division. A static pilot test Website is currently available to a limited number of participants with the below menu options, and the active site is under development for interactive use by mid-2004. 39