Archive for the ‘Occupational Health & Safety’ Category

OCCUPATIONAL HEALTH & SAFETY (OHS) – FINES, SURCHARGES, EXPENSES AND CONVICTIONS – WHAT DOES THIS HAVE TO DO WITH INSURANCE?

August 15, 2014

Through the years in which I have been working in the insurance business as a broker, it became apparent to me that most clients will simply view his/her broker as a salesman, not as the professionals we all strive to be. That was why I focused my career in the consulting field of Risk Management. I realized that insurance won’t always do what I felt it did, previously, for clients and what we all would say it was designed for, ensuring the client is placed back in the same position following a loss as that client was prior to the event.

Some insurance companies have gone on to do surveys and express results that show only 50%, for example, of any business losses are ever covered by insurance! YES, only ½ of your losses can and will be reimbursed by the purchase of an insurance policy.

So what does this mean YOU should then do? Well, finding a professional and reputable insurance brokerage who understands Risk Management can be a wonderful step; but I know many businesses will still feel they are dealing with a “salesman”, someone who derives financial reward from the selling of an insurance policy to YOU! This may be quite accurate, in a large number of situations. I will gladly consult with businesses within my “licensed” territory (ONTARIO, CANADA) on a “fee” basis (but even then I will – if you read further – offer something SPECIAL to YOU) but also perform further reviews outside my territory for those who understand my expertise may be limited by some restrictions of knowledge (e.g. Workers Compensation laws in the various US states) that would need to be supplemented by other experts.

As a former retail commercial banker in both Canada and the USA and a licensed Life/Accident & Sickness insurance agent (“we” in the industry prefer the term broker since it represents multiple insurance company representation) and Property/Casualty broker in both Canada and US, I have been working for my clients, in a manner different than usual, for 10+ years. In reviewing leases, contracts, loan agreements and other legal documentation – supplemented by financial statements to ensure the client knows what all their major risks of conducting business are – I can identify and advise whether it is suitable to “retain” or “transfer” various identified business risks to others. The definition of retention includes assuming all risks by self-insuring all or a portion through deductibles, under-insuring, etc. Most businesses are not aware of the many risks they face nor whether it is even possible or if they have insurance to rectify a loss when it occurs. Transferring one’s risk may be through the purchase of an insurance contract that transfers the risk of loss to an insurance company, pool, captive or obtaining a Hold-Harmless Agreement, etc.

In my own region, for example, I will highlight some possible circumstances that might relate to your own business and real risks you know about and, without pointing fingers, tell you why you might want to talk with me. After reading this statement, if you don’t contemplate contacting me then do discuss with your insurance professionals and get a second opinion because many, in my field, are NOT aware of the availability of insurance for these expenses – (TORONTO (Canadian OH&S News) Penalties for workplace safety violations in Ontario are harsher than any other province in the country, threatening employers and supervisors alike with thousands of dollars in penalties at the least, and jail time for the most egregious of errors.).

I know many of us are familiar with Bill C-45 – http://www.ccohs.ca/oshanswers/legisl/billc45.html – but if, for some reason (possibly you are not a Canadian and immigrated here) then you should be. Penalties for violation can result in substantial fines and/or jail terms. Insurance will never suffice if a jail term is meted out by the judicial system but the legal defence costs, while you are assumed innocent until proven guilty, need to be paid and here is where some form of insurance may meet your need.

Canada: Canadian Employers Hit With Record Setting Occupational Health and Safety Fines – is $750,000 excessive or fair for a family-run corporation? http://www.mondaq.com/canada/x/269016/employment+litigation+tribunals/Canadian+Employers+Hit+With+Record+Setting+Occupational+Health+and+Safety+Fines+The+HR+Space

BOLTON, Ontario—A 67 year old contractor lost his life while making repairs to a reach truck. http://www.mmdonline.com/safety-and-security/contractor-dies-repairing-reach-truck-77870/

TORONTO, ON – Symtech Innovations Ltd., a construction business in the commercial and industrial sectors, has been fined $90,000 after a worker died following a fall through a skylight. http://news.ontario.ca/mol/en/2014/08/symtech-innovations-ltd-fined-90000-after-worker-dies.html

WOODSTOCK, ON – Erie Greenhouse Structures Inc., a company that produces and installs greenhouses and related equipment in Tillsonburg, has been fined $73,000 after a worker lost part of a finger in machinery. http://news.ontario.ca/mol/en/2014/08/erie-greenhouse-structures-inc-fined-73000-after-worker-injured.html

BRAMPTON, ON – Action Trailer Sales Inc., a company that sells, leases, maintains and repairs all types of semi-trailers, has been fined $50,000 after a worker was injured while changing equipment on a trailer. http://news.ontario.ca/mol/en/2014/05/action-trailer-sales-inc-fined-50000-after-worker-injured.html

BRAMPTON, ON – General Kinetics Engineering Corporation, a manufacturer of vehicle suspension systems, has been fined $50,000 after a worker fell from a ladder. http://news.ontario.ca/mol/en/2014/06/general-kinetics-engineering-corporation-fined-50000-after-worker-injured.html

Now what is the “something SPECIAL to YOU” that I offer? As a consultant, I would normally charge a fee for service but anyone – within Ontario, CANADA – who contacts me and mentions this Blog will be entitled to 1 hour of FREE analysis and feedback, without any further obligation. I can be reached by e-mail – larryewinsurance@gmail.com and I might call this my “end of summer” special but the sale won’t be limited to a timeframe if YOU mention to me at any other time since I am hoping that my Blog is the reason and wish to promote blogging as an effective tool in my business promotional efforts. If you don’t live/operate from Ontario, CANADA and still wish to discuss, I am very happy to see if there might be an opportunity to assist you – again at no cost, but it may NOT be 1 hour FREE but a shorter time.

Multi-National Business and Risk

November 9, 2009

Does a corporation overlook proper “due-diligence” when expanding their operations and, if so, how often might this occur?  I don’t mean the normal, everyday analysis, but a significant Risk Management concern; the legal framework one must consider when crossing borders!

European businesses have become very familiar with establishing new ties with various professional services when they open subsidiary operations in the northern part of North America, particularly in their understanding that Canada is completely different from Europe (and, again, different from the USA).  They locate legal, accounting, banking and insurance specialists who, many times, do not have direct ties with their European operations.  They realize that NAFTA (North American Free Trade Agreement) can benefit their Canadian subsidiaries in allowing an opening into the greater American marketplace, a major advantage to locating in Canada, and then look for the most suitable expertise to assist them.

Examples that I have seen include the contacts made through the various European-Canadian Chambers of Commerce with one lawyer (friend of mine) being especially adept at being able to obtain clientele in this manner.   There are numerous other examples but I will only provide one to whet the appetite for connecting with me.

Why do they like to enter America through Canada?  Many Europeans realize that Canada is significantly closer to our European “roots”, as opposed to our American “neighbours”, in areas like politics (should I term it “social democracy” and multi-party governing, as opposed to a true 2-party form?).  Maybe, for them, it is a gradual change from Europe to America.  And yes, many Europeans do love America.

Now what about American corporations; do they prepare themselves in the same manner?  Do they understand that Canada is not the 51st state?  Reality tells us that many American corporations do not fully comprehend that Canada has distinct laws, particularly in the areas of Health & Safety, Workers’ Compensation, Vacation/Paternal Benefits, Unionization, the “Duty to Accommodate” in areas of Disability and, surprisingly, “Francophone” issues, among many others.  They do, however, realize that we have a “Government Health Care” system in place, unlike their home country (and, yes, there can be major cost savings from that associated with employer provided “group medical insurance”).

Sure, Canadian media is driven by American news events (CBC often reports items faster than CNN, by internet) and Americans residing in Canada don’t recognize that they’re living in a foreign country because of so many similarities (we also watch the same television programs and movies) but there are, in fact, major differences!

What is the significance of some of these issues that can be so different?  An example mentioned to me, over a recent coffee meeting, gave rise to an item that was publicized significantly in Canada not too many years ago.  See the following for one example: http://www.ogilvyrenault.com/files/unionfreespeech01oct04.pdf

Knowing that some corporations do not see the “negative press” (“Reputation Risk”) as something to be of concern may be one issue to debate at another time but as a “new employer” in a different country it should give rise to discussions in the Board room, should it not?

Or, what about language issues or a “Napoleonic Code” legal system which should also be Risk Management concerns?  You may ask what the Napoleonic Code is but it heralds back to the times of Emperor Napoleon and still is the legal system in use, today, in the Province of Quebec, a part of Canada that is also the reason that we are a legally “bi-lingual” country.

There are a large number of differences between Canada and the USA that cannot (or should not) be overlooked by an American subsidiary operating in Canada.  Anyone who recommends that their subsidiary operate as a “branch” of the parent will be confronting many major issues never contemplated at home.  Quite possibly now, a majority of American firms operating here, treat their operations in this manner without fully realizing the many Risk Management issues they face.

The most significant, in my mind, was Bill C-45 and the debate it caused in 2003, when Directors, Officers and Management could be fined and imprisoned for the most serious of health and safety violations!  I had clients who wanted to buy insurance protection which was not available because these are considered “uninsurable” (criminal) events.  What could they do?  We provided training and consulting from a Risk Management capacity which lessened their concerns.  This needs to be an ongoing function.

To conclude, it may be better to obtain the expertise of local consultants when expanding multi-nationally.  Good Risk Management practices would indicate that, instead of assuming that everything is the same as to what one has become accustomed, businesses should take a few moments to contact us.

Directors’ & Officers’ Liability Insurance general information

October 27, 2009

What is Directors’ & Officers’ Liability Insurance?  What does it do; who does it protect; why buy it?  These are just a sample of questions anyone in the business of D&O (buyer or seller) will have heard throughout their years of working in this particular specialty of insurance.

I once heard an esteemed partner in a well-recognized law firm offer that, in Canada, if there were 100 insurance companies that sold this form of insurance policy one would not find 2 identical policies anywhere in the country – can you imagine that this might be any different in the USA?  I can’t.

Who sells Directors’ & Officers’ Liability (more commonly called D&O) today?  Many insurance companies will offer the coverage but some will only write the “non-profit” market or Not-For-Profit Organizations, Associations, etc.  Others will write both classes (“For Profit”, as well) of business and still, other sources might include the “wholesale” marketplace or Managing General Agents (MGA’s).  These MGA’s attempt to access markets (e.g. Lloyds’) and design a policy specific to an industry or sector, in some cases.

What might be the Purpose of D&O insurance?  A simple response might be “good corporate governance” but nothing will truly be simple in a discussion of D&O.  Why is D&O necessary?  Legislation and the many decisions of the world’s Judicial System have required that anyone in the place of a Director and/or an Officer of any Corporation be protected due to the large personal risk that one faces – the loss of “personal assets” of a director/officer.  In the case of a “volunteer” director on a board, can you imagine explaining to your spouse that your family may face the loss of your home, business, savings, etc. when you have been volunteering for a church, service group, social activity, or other worthwhile cause and are named in a lawsuit?  Absolutely ridiculous!  Correct?  NO!  What about those individuals who served as Directors or Officers in prior years?  Yes, past and future directors can be covered by the insurance policy, as well as current directors.

What is covered by a normal policy?  Legal and Defense Costs (have you recently asked a lawyer who specializes in this area, how much their hourly rates are?), Damages, Settlements and Judgments are normal and, most people will agree, can be quite substantial.  Actual or “alleged” wrongful acts are covered but what will not be covered (nor should it be) are Fines, Penalties and other charges deemed uninsurable (e.g. profits or gains realized due to insider information).

Some of these acts may be “negligent”, “errors”, “omissions”, “misstatements”, “misleading statements”, “neglects or breaches of duty”, etc.  but will NOT cover “acts of bad faith”, “bodily injury or property damage” (that is what other Liability insurance covers), “claims relating to employee pension or welfare plans”, “environmental claims” (again other Liability insurance can be obtained for that), “claims resulting from facts known prior to the inception of coverage”, “failure to maintain insurance:, etc.

Claims can be brought by shareholders, creditors, employees, suppliers, competitors, government bodies, etc. – can you think of anyone who is not included here?

What about the corporation that no longer exists due to wind-up or other reasons?  Yes, the policy can have an “extended reporting period” whereby the insurance company will extend coverage for an additional term for additional premium, usually less than the full term’s cost.

Examples of claims could include any of the following:

  • Class action lawsuits against a Board of Directors for alleged mismanagement – hindsight will definitely be 20/20 so who is to determine that there was actual mismanagement?
  • Damages against various directors and officers of a firm for alleged non-disclosure of financial conditions and performance (I have an example where a bank claimed this from a Borrower);
  • Shareholders questioning whether their interests were adequately represented by the Board of Directors;
  • Corporate Governance issues which have become a major source of concern to the financial markets and to governments;
  • A suit against a group of directors over a dispute about the value paid by one company for another (and the odd item of note, here, was that the D&O insurance did not survive the takeover);
  • A public offering of stock where directors are quoted as touting the prospects where the stock fails to perform in a manner consistent with those statements and shareholders subsequently sue for damages, “alleging that they were induced to buy at an inflated price because of the excessive promotion of the stock by its directors”;
  • A wrongful termination of an employee, whereby an employee argues that a “sales decline was due to a weak economy and failure of the company to keep its prices competitive”;
  • The directors of a struggling company were unaware that management was using Sales Tax collections to finance the day to day operations and when the company took bankruptcy with unremitted tax monies, the government assessed the directors personally for outstanding tax liabilities;
  • Unpaid wages in the event of a bankruptcy;
  • Sexual harassment and discrimination;
  • And the list can go on.

What makes “non-profit” so different from “for-profit”?  Many of the above examples are strictly for profit, right?  Yes, most are but a non-profit organization can have instances of termination, harassment and discrimination, too!

One of the differences is that a non-profit may need and benefit from a “duty to defend” clause in their policy whereby the insurance company is required to defend the lawsuit, as opposed to participating or reimbursing an Insured following a judgment.  Some companies will even cover for administrative errors and omissions and not have a specific exclusion for “failure to maintain adequate insurance” (WOW!).  This may be a small benefit to a non-profit but is an example of a major difference from insuring a “for-profit corporation”.

There will be many other questions that a reader may have but this information should give an overview of Directors’ & Officers’ Liability insurance, the importance of obtaining and some of the differences between the two types of coverage available.

Please feel free to comment or ask further questions.

RISK – My 1st Post! – Well, at least it is #1 for here (and maybe better than my other attempts)

October 22, 2009

This is my first blog attempt here and I hope better than my previous efforts 🙂 .

I have just had the most amazing week in so many ways that my excitement is bubbling over, hehe.  Reason for this is that I wished one of my many online friends a Happy Birthday on Friday last week and he (Craig, you know who you are) then proceeded to offer me immense advice on blogging and setting-up my blog on this site 🙂 .  He explained that I should be blogging every time I see, meet or hear something about “risk” since that is my expertise.  Well, here goes my effort then.

So, what else made my week so spectacular?  Well, one call to a friend of mine (Mike B.) that led to a request to speak to a group of bankers, accountants, advisors, etc. and then an e-mail from another good friend of mine (Mike A.) to gauge my interest to speak for 1.25 hours early next year to a group of Managers and then a follow-up Skype message (Andy – No, not another Mike hehe) re another speech to a group of independent management advisors – this all on Friday!

I then proceeded to mentor another online friend (Victoria) who is making a career move from agent to commercial broker and I offered my years of experience and continuing guidance to assist her.  Even in the same geographic area, it is much easier to use phone/computer communication than managing the headaches derived from fighting traffic to meet face to face.

What else has happened since Friday, then?  Well, I’ve been working with a management consultant friend of mine on his one client’s insurance requirements and ensuring that they’ve been met at affordable premiums.  I’ve provided two contacts’ names/info to another contact of mine who is in need of their services, been provided a list of 50 lenders by a new online connection (sure is nice to share contacts who can recommend me) so that my work during the next week will be quite busy in prospecting.

Well, you can see where my excitement originates from, correct?

What do I do, though?  I work in Risk Management – identifying and analyzing risks, controlling and financing risks.  My expertise is derived from nearly 20 years of Retail Commercial Banking and 20+ years of Insurance/Risk Management.  I work in the realm of Legal Contracts & Leases to Financial Statements through the spectrum of Property, Liability, Income and Human Resources and include Currency, FX, Interest Rate (yes, I did work in Banking), Employee Dishonesty, Media, Trade Credit, Business Continuity and Continuation Planning, Workers’ Compensation and Occupational Health & Safety – a broad spectrum.

Where do I spend the bulk of my time?  I review various Lenders’ Loan Agreements and Borrowers’ Insurance Policies for compliance with the terms/conditions of a Loan, recommending improved security where appropriate and knowing when a particular condition may be waived, as needed.  I even was called upon by a Lender during this week to recommend whether a loan condition for a “seismic report” be required or not – the Borrower already had Earthquake insurance and was located in a zone known to have activity so that I recommended the file be notated to never allow the Borrower to not include “quake” coverage on the policy.

As you can see, a busy and interesting week.  Not knowing when to curtail my comments, I will sign off now and be back later in the week to add something new.