Archive for the ‘General Liability’ Category

COVID-19 and Return-to-Play Webinar

Sadler Sports Insurance and Go4Ellis Webinar Recording

Sadler Sports Insurance partnered with Go4Ellis (on demand per diem access to athletic trainers) to produce a fantastic webinar on COVID-19 and return to sports. It was very well received by the live audience. Many of the participants said they received real value for the first time in the form of an actionable return to sports plan.

In the webinar, John Sadler covers the major COVID-19 issues to be considered:

  • Liability risk for transmission
  • Difficulty in proving a case
  • Legal defenses that are available
  • COVID-19 waiver/release
  • COVID-19 warning signage
  • Will General Liability cover a transmission lawsuit?

Coronavirus protocol in sports organizationsEllis Mair, the chief medical officer for Go4Ellis, presented the role that an athletic trainer can provide as you factor the COVID-19 risks into planning and implementation of your events. Athletic trainers are not only experts in sports injuries, but also in dealing with diseases such as COVID-19. Their ability to be your COVID Coordinator in executing the safest events possible could be immeasurable.

Below is the Zoom meeting link to the the previously-recorded webinar:

https://us02web.zoom.us/rec/share/4cFRLIPRx15OGJX_9m_gV5J5Fau8eaa80CIc_vUKyR5Rnkkg0NT1o4R624XHsR_m


Outline of Topics Covered

COVID-19 Risk Assessment

Panelists

Objectives

Follow the Lead of Authority Sources

Risk Identification Checklist

  • Sport
  • Age Group
  • Event Type
  • Expected Attendance
  • Location
  • Local or Interstate

Insurance and Liability

  • Legal Theories of Recovery for COVID-19 Transmission
  • Elements Of COVID-19 Negligence Claim
  • Legal Risk Compared with Child Abuse or Concussions
  • Does General Liability Cover COVID-19 Transmission Lawsuits?
  • COVID-19 Waiver/Release
  • COVID-19 Warning Signage
  • Other Legal Defenses
  • Homeowners Liability and Personal Umbrella

How Hiring an Athletic Trainer helps Sports Organizations Execute Mitigation Strategies and Support Event Operators

  • COVID Coordinator
  • Pre-event Communication
  • PPE
  • Temperature Screening
  • Monitoring
  • State / Local Compliance Documentation
  • Participant Evaluation And Response

Q&A

 

2020 Insurance Program Released for American Youth Football

AYFThe gold standard that is the envy of the competition

The American Youth Football and American Youth Cheer endorsed insurance provider, Sadler Sports Insurance, released the new 2020 insurance program for teams /associations /conferences on May 15, 2020. The COVID-19 pandemic will not negatively impact the insurance offering in any way and organizations can return to play when cleared by state and local government officials.

The 2020 program is, once again, the gold standard in youth football and cheer insurance with an unbeatable combination of low rates, broad custom coverages, and best-in-industry automation that allows instant online enrollment and issuance of proof of coverage documents and certificates for field owners. But that’s not all: the program also provides best-in-industry risk management resources to prevent injuries before they become claims and groundbreaking studies on safety in youth football and cheer.

Apply, pay, and print proof of coverage documents and certificates in as little as 10 minutes

Our advanced automation is so simple and fast that you can complete the entire insurance purchase transaction and print all your documents in as little as 10 minutes. Many competitors require the completion of forms and days of waiting just to get a quote. Then, once the quote is bound, it can take several days to get the proof of coverage documents and certificates for field owners. Or, they could charge $100 extra for next day rush delivery.

After the purchase, we provide our clients access to our website so that they can self-issue certificates for new field owners 24/7. It’s so easy and our clients love this benefit.

Competitors take major rate increases

Most of our competitors have taken major increases over the past several years due to sexual abuse/molestation and concussion litigation as well as other losses. However, our program remains stable with an average 2020 rate increase on the Accident/General Liability of only 7%. We will have no rate increase on our D&O, Crime, and Equipment policies.

Child Abuse Risk Management Plan Required By Federal Law and Insurance Carrier

The federal Safe Sport Act applies to all sports organizations either directly or indirectly and requires mandatory reporting of a “suspicion” to law enforcement within 24 hours; written policies to make an incident less likely to occur; and mandatory education for both adult staff and minors on the different types or child abuse, how to prevent the sexual grooming process and how to report a suspicion.  Sadler provides a free child abuse risk management plan for your adoption that is Safe Sport Act compliant called Safe Sport Child Abuse And Other Misconduct Risk Management Plan.  

Furthermore, the $1M per occurrence Sex Abuse/Molestation coverage under the general liability policy will be voided unless organizations have implemented a system to run criminal background checks, have written policies and procedures to make an incident less likely to occur, and have a written requirement to notify law enforcement in the event of suspicion. Our free Safe Sport compliant risk management plan will satisfy written requirements. See our insurance plan description for additional information.

What is being done to combat the risk of concussion/brain injury and related litigation?

Sadler Sports Insurance provides a sample Football/Cheer Concussion Awareness Risk Management Program that is strongly recommended for all teams/associations/conferences. This free program can be found under the risk management section of our AYF Insurance page. This program consolidates accepted risk management practices for easy board adoption and implementation. We recommend coaches complete the AYF coaching education program. Certification is required of head football and cheer coaches participating in AYF national championships. We also encourage coaches, volunteers and players view our Seahawks’ tackle resources page which demonstrates their tackling methods. AYF has provided a certification test to take in conjunction with this video on myafy.com. It is important for all teams/association/conferences to thicken their shields by adopting and fully implementing a comprehensive concussion/brain injury risk management program. The future of our sports depends on this action and it’s the right thing to do to protect the kids.

Check out our new risk management reports

We developed the following risk management reports to keep our clients up to date in critical areas:

Sports Organizations and COVID-19  This comprehensive article covers all aspects of return to play and risk mitigation including sample COVID-19 waiver/release forms.

Guide To Preventing Heat Stroke Death In Youth Tackle Football This comprehensive awareness training article was produced as a result of a recent heat illness death.

New Safe Sport Act Applies To Most Amateur Sports Organizations This new federal act signed into law in February of 2018 increases the standard of care required to protect youth against child abuse, molestation, and other forms of misconduct.

Parade Float Risk Management For Sports Organizations Two of our largest claims have arisen out of parade float accidents where participants have fallen from floats and have been run over resulting in significant injuries. This article will help to reduce the risk of future parade float accidents.

Managing Charter Bus Risk For Sports Organizations This is a must read for any conference/association hiring a charter bus.

How To Easily Organize Sports Risk Management Documents In The Cloud Legal forms and risk management policies and training are worthless unless you can introduce them into evidence many years after they are collected.  Learn a simple system for storing these critical documents.

Sample AYF/AYC Risk Management Plan

Our recently updated Sample AYF/AYC Risk Management Plan pulls together all of our best risk management content just for youth football and cheer.  Be sure to adopt, implement, and distribute this critical plan or similar comprehensive plan.

Be a part of groundbreaking injury studies

If you purchase your insurance through the endorsed insurance program, all Accident claims automatically become part of the database where our custom software analyzes the information to produce meaningful injury reports. This has led to groundbreaking studies on the comparison of injuries in age only vs age/weight categories and the incidence of concussions within AYF/AYC.

Get Quote Now

Please visit our webpage at www.sadlersports.com/ayf or call us at 800-622-7370 if you have any questions.

 

Amateur Sports and Coronavirus (COVID-19): How To Return to Play

Updated 8/11/2020 – See blue font areas for recent updates. Returning visitors should always refresh the page to see the latest changes.

Applying Risk Management to Address Coronavirus Risk to Allow Your Organization to Re-Open and Return to Play

The coronavirus threat and the ultimate impact on society and the sports community is still unknown at this time. The situation is fluid with new information being released almost hourly regarding the progression of the COVID-19 outbreak and what steps various sports organizations are taking to address the situation. The trends have swung from mitigation to cancellation and now back to mitigation again with the planned reopening of sports in many states.

From a pure liability perspective for the reasons to be explained, COVID-19 currently poses a much lesser severity risk (risk of large dollar payout) to sports organizations than the traditional severity risks of child abuse / molestation and concussion / brain Injury. However, in other respects, COVID-19 presents unprecedented challenges due to the elements of societal fear, unknown outcome, incorrect and/or changing information, unparalleled role of media, red state / blue state politics, involvement of government regulation in return to play, threat of financial failure due to shut down and loss of registrations, and mitigation techniques that touch almost every aspect of operations and demand utmost management attention. Nevertheless, any significant threat, including COVID-19, can be addressed with the application of the risk management process and risk managers and sports organizations are rising to the occasion.

There is safety in following the lead of authority sources

In order to prove negligence in failure to cancel or mitigate risks, courts will look to authority sources to determine the standard of care that is owed to sports organization staff, participants, and spectators. Therefore, sports organizations should pay close attention to the mandatory governmental regulations and/or recommended guidelines published by the various authority sources:

  • Federal/State/Local government: Constantly monitor governmental health agencies such as U.S. Center for Disease Control and Prevention (CDC), your state’s public health department and other county/local authorities.
  • CDC Considerations For Youth Sports: The CDC published guidelines for return to play for youth sports on May 19 of 2020 in a document entitled Considerations For Youth Sports. However, the CDC states that these considerations should be supplemented by more specific instructions from state and local governments including the timing of permissible return to play.
  • School Districts: School districts provide localized advice based on the levels of coronavirus risk in a particular community. However, the risk components of school sports may be different than those posed by local, community-based sports organizations.
  • Sports Governing And Sanctioning Bodies: Monitor the websites, emails, and social media from the sports governing and sanctioning bodies that oversee your sport. Examples of sports governing and sanctioning bodies include NFHS, USA Softball, and USSSA.

Potential liability exposure exists for sports organizations

Below are the most common legal theories of recovery for a claimant who has been allegedly exposed to coronavirus with resulting sickness or death:

  1. Negligent failure to cancel event resulting in COVID-19 transmission.
  2. Negligent failure to take mitigation steps if events are not cancelled resulting in COVID-19 transmission.

It’s one thing to allege negligence, but it must be proved by showing:

  1. Duty owed to the claimant (may be different for participants vs spectators)
  2. Breach of duty by not following mandatory regulations and/or guidelines on cancellation or mitigation from sources as CDC, state health departments,  county/local authorities, and sports governing bodies.
  3. Breach of duty was the proximate cause of the sickness. Proving causation may be a tall order according to law professor Benjamin Zipurski of Fordham University. Zipurski states that a claimant would need to prove they did not have a virus before the event, they did not come in contact with anyone or any shared spaces on the way to the event, and they did not come in contact with anyone or any shared spaces after the event. This is further complicated by the long incubation period of COVID-19 which may be up to two weeks.  On the other hand, it may be possible to trace the transmission of  COVID-19 if a cluster of multiple people who attended the same event become infected. But despite media publicity over new smart phone COVID exposure tracking apps, it is unlikely that these initiatives will get off the ground due to low voluntary participation as well as concerns over privacy intrusions.
  4. Damages (medical bills, loss of income, loss of companionship, disability, pain and suffering, etc.)

In order to prevail, the claimant must prove all 4 elements listed above. Failure to prove just one element will result in failure to prove negligence.

COVID liability frequency and severity risk and as compared to child sex abuse and brain injury

So far, the frequency risk (risk of many small lawsuits being filed) of COVID lawsuits is low since there are no known COVID transmission lawsuits that have been filed against sports organizations; however, this may change with the return to play phase. As regards the severity potential (risk of large dollar payout), even though COVID transmission can result in serious injury or death to one or multiple persons, it is believed by most insurance industry experts that the potential for large payouts is low due to the difficulties in proving the proximate causation that is required to prevail in a negligence lawsuit. A common thought among these experts is that COVID liability poses a much lower severity risk than sex abuse / molestation or concussion / brain injury. Also, a COVID claimant is less likely to be angry and seeking revenge since sports organizations, despite their best mitigation efforts, have less control over COVID as compared to preventing child sexual abuse or second impact syndrome and resulting brain injury, for example. In addition, there is a much stronger case for assumption of risk with COVID as compared to child sex abuse and brain injury.

However, based on sports administrator feedback, it appears that some administrators fear the COVID liability risk even more than child sexual abuse or brain injury even if such fears may be unfounded. Perhaps the reason is because media outlets remind the public various times throughout the day about new COVID cases and death counts and how society will never be the same. Just image how fears over child sexual abuse and brain injury would be magnified if the media were to constantly remind parents of the daily counts of child sex abuse and concussion incidents.

Legal Defenses To COVID-19 Lawsuits

In order to prove a claim of negligence, the plaintiff must prevail on all 4 elements listed above. As discussed, the element of proximate cause may be difficult to prove in the case of a COVID-19 transmission allegation.

But there are also the following legal defenses that are available:

  • Waiver/Release With COVID-19 Language – Existing waiver/release agreements for minors and adults should be modified to add language releasing the sports organization from liability resulting from illness such as communicable diseases including COVID-19. Or, a specific COVID-19 waiver/release may be used. In some states, a waiver/release may result in lawsuit dismissal by summary judgment depending on if the participant is an adult or minor. Even if the waiver does not result in a quick dismissal, they often reduce the amount of damages owed. See our blog entitled Are Waivers Worth The Paper They Are Written On?
  • Assumption Of Risk – Spectators and participants assume a known risk when they decide to attend or participate in a sporting event. Who has not been warned of the risks of coronavirus by the media? An assumption of risk defense can be strengthened by a COVID-19 waiver/release signed by all participants/parents as well as COVID-19 warning signage.
  • Contributory or Comparative Negligence – Spectators and participants may share in the negligence to the extent that they did not practice personal discipline in taking precautions against transmission. This may result in a total bar or an offset against damages depending on state law.
  • Federal Volunteer Protection Act – The federal Volunteer Protection Act of 1997 provides certain immunity for volunteers of not for profit associations. There are also state law versions which are preempted by the federal act to the extent that the federal act provides stronger protections. These immunity acts do not apply to the extent of gross negligence or other wanton or willful behavior
  • Federal Or State COVID-19 Immunity – There is talk of an imminent federal COVID-19 immunity act to protect businesses including sports organizations from the liability risk of opening up operations. The Following States have some form of COVID immunity whether by statute or executive order; AL, AR, IA, KS, LA, MS, NC, OK, UT and WY. These statutes and executive orders will provide much needed relief but will exempt willful or reckless disregard for COVID-19 mitigation best practices.

Regardless of the difficulties of a claimant in proving negligence and the existence of these defenses, we live in a litigation happy society and even frivolous litigation can result in legal defense costs.

Does General Liability insurance provide coverage for sports organization that are sued for failure to cancel or mitigate?

Here is the short answer:

No one can say with 100% certainty whether a General Liability policy will pay for part or all of a COVID-19 transmission lawsuit. The insurance carriers did not contemplate that this policy would pay for liability arising from a pandemic. But whether the carrier will be forced to respond and pay for a legal defense is a complicated matter. The answer depends on a number of factors including the exact causes of action alleged in the lawsuit papers, the facts in a particular case, the existence of certain exclusions in the policy, and how the various courts and jurisdictions interpret the policy provisions.

If your policy does not include a specific exclusion for communicable disease, virus, or pandemic, you have a much better chance that your carrier will provide legal defense and coverage according to several sports insurance industry claims managers. Insurance carriers are cautious and often provide legal defense under a reservation of rights letter due to fears over a bad faith refusal to settle lawsuit and the associated multiplied and punitive damages. However, even without the communicable disease exclusion, carriers will likely refuse to defend if a sports organization engages in blatantly negligent behavior such as returning to play before clearance by state and local authorities and failure to implement the most basic mitigation best practices.

In addition, if just one of the causes of action in the lawsuit papers is potentially covered, the insurance carrier will normally be required to provide a legal defense even if any settlement or adverse jury verdict is not completely covered. And a legal defense is likely to be the most important element in a COVID-19 transmission lawsuit since as it will be extremely difficult to prove negligence for the reasons stated above.

Here is the long answer:

In a very brief and over-simplified summary, the General Liability policy responds to certain lawsuits alleging “bodily injury”  or “property damage” caused by an “occurrence” and not otherwise excluded. COVID-19 definitely falls under the definition of “bodily injury” which includes sickness.  But whether a COVID transmission event is an “occurrence” could be subject to debate. Generally, an “occurrence” is similar to an accident and is something that is not intended or expected. Some courts may rule that a transmission during an event in the middle of a pandemic does not fall under the policy definition of an “occurrence” if the outcome would be expected. Other courts may rule that there is an “occurrence” because the transmission was accidental and unintended even if the decision to hold the event was a poor one.

If the court finds that a COVID transmission incident is an “occurrence”, coverage then hinges on whether an exclusion applies. An exclusion is a provision that takes away coverage. To follow are some potential exclusions that could result in a claim denial:

  • Communicable Disease, Pandemic, Or Virus Exclusion – At the present time, most sports General Liability policies do not include such exclusions. However, moving forward, expect most insurance carriers to add one of these exclusions on policy renewals in an attempt to clarify their intent to not cover liability arising from a pandemic.
  • Intentional Injury Exclusion –  The intentional injury exclusion applies to “bodily injury” (includes sickness) that is expected or intended. If the sports organization moves forward with practice or play despite a mandate to the contrary from the state or municipality or without following recommended mitigation techniques, some authorities have suggested that it is possible that the insurance carrier may deny the claim citing the intentional injury exclusion. This is based on if a reasonable person could or should expect the virus to spread because of actions taken or decisions made. However, according to IRMI, such an interpretation may not be appropriate as “in order to rely on this exclusion, the insurer must demonstrate bodily injury or property damage was expected or intended by the insured—whether the act itself was intentional is not the measure of this exclusion.”
  • Pollution Exclusion – Some courts have ruled that a virus is a “pollutant” for the purposes of the pollution exclusion. However, the majority view is that a naturally occurring contaminant such as a virus is not a “pollutant” because it does not fall under the category of environmental pollution.

Homeowners Liability And Personal Umbrella Insurance May Provide Coverage For Individual Volunteers

Homeowners Liability and Personal Umbrella policies usually cover insureds while conducting duties as a volunteer for not for profit sports organizations. If these policies don’t include an applicable communicable disease or similar exclusion, it is possible that they are a source of legal defense and would pay for any settlement or adverse jury verdict. Most personal policies do include some type of communicable disease exclusion, but many are worded to apply only to situations where the insured was personally the source of the transmission of the communicable disease. Of course, that is usually not the case where an insured is a volunteer coach or administrator and is shot gunned into a lawsuit. The carriers may also argue that the transfer of a communicable disease was not an “accident” or was an “intentional injury” but these are not likely the majority view. In any event, any COVID claim naming an individual volunteer staff member or administrator should be turned in to any existing Homeowners Liability or Personal Umbrella carriers.

Different levels of transmission risk factors for different sports organizations

The following factors should be considered when a sports organization makes decisions regarding cancellation or how to best mitigate coronavirus risks. Know the risk factors for your particular sports organization and tailor a plan to fit your specific needs.

  • What is happening in your specific community. If coronavirus is present or widespread in your community, you should increase your level of aggressiveness in applying risk management.
  • Type of competition: the risk of transmission increases from lower to higher as organizations move from virtual conditioning and training at home under instructions from a coach; team-based practice with social distancing and no sharing of equipment; team-based practice without social distancing and sharing of equipment; within-team scrimmaging; competition with teams from within your geographic area; and competition between teams from different geographic regions
  • Analyze separately the risks from the perspective of staff, participants, spectators, and third-party vendors. Mitigation plans may need to be customized for each group.
  • According to the CDC, the risks to older adults and those with serious chronic medical conditions are elevated. According to U.S News & World Report, children and teens are at a lower risk and typically have milder symptoms or none at all and the death rate is much lower than middle aged and older populations. Exposure transmission to seniors may occur in their role as sports participants, coaches, spectators, or parent/guardians. Mitigation plans should be adopted to protect those with the highest level of risk.
  • Playing locally vs travel: Local play entails less transmission risk than air, bus, or train travel. Staff and participant travel to out-of-town conferences or competitions is a higher risk activity.
  • Spectators: Higher spectator transmission rates can be expected when spectators are indoors, confined in a small enclosed space, seniors, or have compromised immune systems.
  • Crowd size: The larger the crowd size, the greater the transmission risk. Sports organizations may adopt guidelines to reduce risk by limiting attendance to one person per participant; maintaining separate entry and exit points; not allowing congregating at common areas such as concessions, bathrooms, and information boards; and enforcing social distancing guidelines of 6 feet between non family members.
  • Sport specific player contact: Some sports have more spacing and less close contact between players such as baseball, softball, cross country, track & field, tennis and golf. Other sports such as basketball, soccer, football, and lacrosse have much closer spacing and player contact. Sports with higher levels of close contact should limit such exposure during practices to a certain number of minutes and should concentrate on conditioning and drills that don’t require close contact.
  • Sport specific shared equipment: Different sports have different levels of touching shared equipment followed by the touching of participant mouth, nose, or eyes.
  • Player ages: Younger age groups have more difficulty in following instructions about social distancing; touching mouth, nose, or eyes; sharing water bottles; etc.
  • Size of team: Teams with higher numbers of participants have increased transmission risks. Consider decreasing team size or breaking up teams into pods that have limited close contact with other pods within the same team.

Sample risk management guidelines to mitigate COVID risks

(Note: references to staff means coaches, team specific staff, and general league staff members which may include directors/officers, umpires/referees, gate workers, scorekeepers, concessions, field maintenance, janitorial, etc.)

Manage

  • COVID Coordinator: Appoint a COVID coordinator to oversee all aspects of the COVID risk management plan including development from appropriate resources, implementation, monitoring, updates/changes, communications, staff training, regulatory compliance, and answering player, parent, and staff questions about COVID concerns.
  • Compliance With State And Local Guidelines: Make sure that the sports organization is in compliance with all state and local COVID guidelines including return to play dates and maximum group sizes.
  • Training: Train all players and staff on appropriate cleaning and disinfection, hand hygiene, and respiratory etiquette.
  • COVID Self-Reporting: Be familiar with and comply with all regulatory requirements, privacy policies, and information sharing regulations as regards COVID-19 self reporting of symptoms or positive tests by players or staff as well as by related family members with whom they have had close contact.
  • Spread Out Scheduling Of Practice And Games: There should be enough time between practices and games to allow one group to vacate the premises before the next group enters as well as for proper sanitation of surfaces and other equipment.
  • Back Up Staff: Have a back up staffing plan in the event that staff members become infected.
  • High Risk Staff: Limit staff with underlying conditions from attending or working the sporting event. (Source: TX Checklist For Youth Sports Operators.)
  • Documentation: In the event of COVID transmission litigation, the sports organization must be able to provide written documentation of the implementation of the COVID risk management program.

Communications

  • Pre-Season: Sports programs should disseminate information to all staff, players, parents, and spectators about the COVID risk and practices that should be undertaken to mitigate risks. Information should be disseminated by way of email, social media, coach talks, and public announcements.
  • Self-Reporting Of COVID Symptoms: Be prepared to disseminate information to concerned parties about any COVID-19 incident while complying with all regulatory requirements and privacy laws.
  •  Staff Meetings: Consider cancelling in-person staff meetings and replace with Zoom meetings or conferencing by telephone.
  • Risks To Seniors: Provide notice to all parents or guardians of the enhanced risks of players being in direct contact or anyone 65 or older for 14 days after participating in a sport event or practice. (Source: TX Checklist For Youth Sports Operators.)

Pre-Event

  • Stay Home When Appropriate: Players, staff, and spectators should be instructed in communications to stay home when they are showing symptoms of COVID-19, have a temperature over 100.4 Fahrenheit, have tested positive for COVID-19, or have had close contact with a person with COVID-19.
  • Symptom Checking: Conduct pre-event observation and/or questioning of all players and staff about the existence of any COVID symptoms including cough, shortness of breath or difficulty breathing, chills, repeated shaking with chills, muscle pain, headache, sore throat, loss of taste or smell, diarrhea, feeling feverish or a measured temperature greater than or equal to 100.4 degrees Fahrenheit, or known close contact with person who is lab confirmed to have COVID-19. (Source: TX Checklist For Youth Sports Operators.)
  • Temperature Check: Players, staff, and spectators should be asked to take their own temperature before leaving the house and they should stay at home with any reading of 100.4 Fahrenheit or higher according to CDC definitions of reportable illnesses for contagious disease. The sports organization can assign a staff member to use an infrared non-contact forehead thermometer to take the temperature of all players and staff before they enter the field/facility. Any reading of 100.4 or higher should result in a denial of entry. These thermometers are now commonly available for under $100. (Note: The CDC Considerations for Youth Sports guidelines no longer suggest taking temperature checks at home or on location but this still may be a requirement of state or local governments.)
  • No Congregation: Players and team staff should not congregate prior to a practice or competition event and should stay in cars until right before warm ups for the practice or competition and should avoid other groups that are leaving the prior event.
  • Team Check In Process:  Team staff and players should continue social distancing during the team check in process for competitions. There should be a single point of contact for teams during events.
  • Disinfect Hard Surfaces: When arriving at team seating or sideline areas, team staff should disinfect all hard surfaces such as benches, railings, and equipment racks.

Post-Event

  • Cleaning: Team staff should clean and dispose of all trash from player seating or sideline areas when departing practice or games.
  • No Congregation: Players and team staff should quickly exit the practice or playing location after the event and go directly to their cars without congregating with other teams or spectators in common areas.

Social Distancing

  • 6 Ft. Rule: All players, staff, and spectators should practice social distancing of 6 ft. whenever possible, especially in common areas.
  • Pre And Post Event Social Distancing: Social distancing should be practiced by players and staff during all locker room activities, instruction, explanation of rules, pre-game strategy, and post game briefing sessions.
  • Restructure Practices: Restructure practices to greatest extent possible to concentrate of conditioning, drills, skill building and limit close contact to a specified number of minutes during simulation drills and scrimmages.
  • Breaking Up Large Teams: Consider breaking up large teams into pods during practice that have limited close contact with other pods on the same team.
  • Pre-Game Warm Ups: During pre-game, players and staff should maintain the 6 ft. distance if possible during warm ups and drills and should only have close contact during actual competition.
  • Social Distancing Monitors: Identify adult staff members to help maintain social distancing between players, staff, and spectators (if allowed by state law).
  •  No Handshakes/Celebrations: Players and staff should refrain from handshakes, high fives, fist/elbow bumps, chest bumps, group celebrations, etc.
  • Waiting In Cars: Players and team staff should wait in their cars with parents/guardians until just before the beginning of a practice, warm-up or game instead of assembling in groups.
  • Car Pools: Discourage the use of car pools to transport participants who do not live in the same household.
  • Spectator Social Distancing: Spectators should follow social distancing of 6 ft. whenever possible and should avoid being in groups of greater than 10 persons. Where social distancing is not feasible, spectators should wear face coverings and wash hands or use hand sanitizer (60% alcohol) frequently.
  •  Limiting Spectator Attendance: Some sports organizations may choose to limit spectator risk by limiting attendance to essential staff and limited family members.
  • Off Site Activities: Avoid off site team activity events such as swimming, team meals, bowling, watching professional teams, etc.

Personal Protective Equipment (PPE) And Personal Disinfectants

  • Educate: Teach players and staff and reinforce the use of wearing cloth face coverings. Wearing face coverings is most critical when physical distancing is difficult.
  • Face Coverings For Coaches And Staff: All staff should wear PPE such as face coverings and gloves whenever applicable. (Note: CDC Considerations For Youth Sports does not suggest the use of gloves except for when removing garbage bags or disposing of trash.)
  • Player Face Coverings: Players should wear face coverings in close contact areas and situations where applicable. Players should be allowed to wear face coverings during competition if they choose to do so as long as they don’t compromise the safety of any and all participants.
  • Parent / Spectator Face Coverings: Parents and spectators should wear face coverings whenever they are at the facility and in close contact with a non family member.
  • Don’t Touch Face: All persons wearing face coverings should be reminded to not touch their face covering and to wash their hands and/or use hand sanitizer (60% alcohol) frequently.
  • Player Provided Hand Sanitizer And Wipes: Parents should provide all players with hand sanitizer for use between play periods as well as antibacterial wipes for disinfecting player provided equipment.
  • Staff Provided Hand Sanitizer And Wipes: Staff members should provide their own hand sanitizer for frequent use and antibacterial wipes for disinfecting hard surfaces and shared equipment.

Playing Equipment

  •  Spacing Of Player Equipment: Player equipment should be spaced accordingly to prevent close contact.
  • Player Provided Equipment: Players should be encouraged to bring their own equipment and to not share with others. Player provided equipment should be kept separate and in individual bags or containers.
  • Limit Team Shared Equipment: The use of team shared equipment (e.g. protective gear, balls, bats, etc.) should be limited whenever possible and should be sanitized after each use if possible. Otherwise, limit use of team shared supplies and equipment to one group of players at a time and sanitize between use.
  • Water Bottles: Water and sports drink jugs should no longer be provided by sports facilities or sports organizations. Players and staff should bring their own water bottles to all team activities to help to reduce transmission risk. Individuals should take their own water bottles home each night for cleaning and sanitation. Visiting teams should also bring their own water bottles.

Facilities

  • Foot Traffic Control: Larger facilities should encourage social distancing by designing multiple foot traffic entry and exit points.
  • Water Fountains: Should be closed with tape and signage stating that they are not to be used. Or, if they are to remain in service, should be sanitized at least hourly during use but participants should be encouraged to bring their own water bottles.
  • Concessions: Concessions should be discontinued unless the sports organization is in a position to strictly enforce precautions. Precautions include 6 ft spacing markers in concession lines between customers; staff instructed to not report to duty if they don’t feel well, have symptoms, or have a temperature; staff required to wear gloves and face masks; steps taken to prevent cross contamination; and frequent sanitation of all surfaces.
  • Rest Rooms: Small rest rooms should limit occupancy to one person at a time and larger rest rooms should provide 6 ft distance markings.
  • Cleaning/Disinfecting: Sports facility owners/operators and team staff should use disposable disinfectant wipes on all training areas, locker rooms, equipment, common areas, door handles, railings, water fountains, seating, bathrooms, etc. on a regular basis.
  • Hand Washing And Hand Sanitizer Stations: Facilities should provide hand washing stations that are foot activated and hand sanitizer (60% alcohol) stations.
  • Information Boards: Discontinue the use of physical posting of brackets, rules, etc. and instead post online.

Sports Organization Provided Supplies

  • Hand Sanitizer: If hand washing stations are not readily available at the facility, sports organizations should provide hand sanitizer (60% alcohol) and should schedule mandatory use at breaks.
  • Food: If food is offered, provide in pre-packaged boxes or bags for each player or staff member and don’t share utensils.

Personal Discipline

  • Hygiene/Hand Washing/Touching Face/Laundering: Players and staff should practice proper hygiene, wash hands frequently with soap and water for at least 20 seconds, use alcohol-based hand sanitizer (with at least 60% alcohol), abstain from touching their face (mouth, eyes, or nose), refrain from spitting, and cover their cough or sneeze with a tissue and throw tissue in the trash.  Carry small bottles of alcohol-based disinfectant when hand washing facilities are not available. Clothes should be laundered after all workouts.
  • Healthy Practices: All players and staff should practice healthy habits including adequate hydration to keep mucous membranes moist, consume a varied, vitamin-rich diet with sufficient vegetables and fruits, and get adequate sleep.

When Someone Gets COVID-19 Or Has Close Contact

  • Educate: Make sure that staff and family members understand that any sick person should not attend any activities and that they should notify the COVID coordinator if they or any other staff member or player becomes sick with COVID-19 symptoms, tests positive, or has had close contact with someone who has COVID-19 symptoms or has tested positive.
  • If COVID Symptoms Exhibited During Event: If a player or staff member exhibits symptoms during an event, they should immediately be separated and sent home or to a health care facility depending on the severity of the symptoms. They should not be allowed to return to activity until they have met the CDC criteria to discontinue home isolation.
  • Player Or Staff Member Return To Sports Activity: See CDC guidelines on When You Can Be Around Others After You Had Or Likely Had COVID-19. Here is a summary:
    • They think or know they had COVID-19, and had symptoms: Players and staff can be with others after: 3 days with no fever, and symptoms improved, and 10 days since symptoms first appeared. Depending on healthcare provider’s advice and availability of testing, player or staff member might get tested to see if they still have COVID-19. If they are be tested, they can be around others when they have no fever, symptoms have improved, and they receive two negative test results in a row, at least 24 hours apart.
    • They tested positive for COVID-19 but had no symptoms: Players and staff can be with others if they continue to have no symptoms after 10 days have passed since test. Depending on healthcare provider’s advice and availability of testing, they may get tested to see if they still have COVID-19. If they have been tested, they can be around others after they receive two negative test results in a row, at least 24 hours apart. If they develop symptoms after testing positive, they must follow guidance above for “They think or know that they had COVID-19, and had symptoms.”
    • They have been around a person with COVID-19: Players and staff who have had close contact with someone with COVID-19 should stay home for 14 days after exposure based on the time it takes to develop illness. It is possible that someone could be able to spread COVID-19 for up to 14 days even if they do not have symptoms. According to CDC, “…factors to consider when defining close contact include proximity, the duration of exposure (e.g., longer exposure time likely increases exposure risk), whether the individual has symptoms (e.g., coughing likely increases exposure risk) and whether the individual was wearing a facemask (which can efficiently block respiratory secretions from contaminating others and the environment). Data are insufficient to precisely define the duration of time that constitutes a prolonged exposure. Recommendations vary on the length of time of exposure but 15 min of close exposure can be used as an operational definition. In healthcare settings, it is reasonable to define a prolonged exposure as any exposure greater than a few minutes because the contact is someone who is ill. Brief interactions are less likely to result in transmission; however, symptoms and the type of interaction (e.g., did the person cough directly into the face of the individual) remain important.”
  • Player Or Staff Has Close Contact: Anyone with close contact with a person exhibiting symptoms should also be separated and sent home and should follow CDC guidelines for self-monitoring and procedures for community related exposures.
  • Cleaning / Disinfecting Surfaces: Any areas, surfaces, or shared objects used by a sick person should be closed off and not used until after cleaning and disinfecting. If possible, it is recommended to wait at least 24 hours before cleaning and disinfecting.
  • Notification: Notify local health officials, staff, and family members immediately of any lab confirmed case of COVID-19 while complying with local state and privacy and confidentiality laws as well as with the Americans With Disabilities Act.
  • Multiple Infections: If 3 or more team members test positive for COVID-19, work with state and local health care officials about continued operation of the sports league. (Source: TX Checklist For Youth Sports Operators.)

Risk Warning And Assumption Of Risk

  • Waiver/Release: Waiver/release agreement forms should be updated to address the risk of communicable diseases such as COVID-19 in addition to injury. See our updated waiver/release agreements for minors and adults. In addition, we have a new, stand alone COVID-19 waiver/release for those sports organizations that already collected their normal waiver/release forms for the season.
  • Coronavirus Warning Signage: Post conspicuous signage at sports facility in highly visible locations (ex: entry, exit, and rest rooms) warning of coronavirus risks and what steps can be taken to reduce such risks. Here is some sample language that should be reviewed by local legal counsel:
    • Coronavirus Risk Warning
      •  It is suggested that seniors or others with compromised immune systems not participate in or attend this event due to risk of infection.
      • Do not enter if you are exhibiting any signs of illness such as sneezing, coughing, sniffles, have fever, or don’t feel well.
      • Do not enter if you have recently tested positive for COVID-19 and have not been cleared or if you have had close contact with someone who has.
      • If you are repeatedly sneezing or coughing, you may be asked to immediately leave the premises.
      • All players, staff, and spectators should practice responsible social distancing by remaining at least 6 ft apart whenever possible.
      • All players, staff, and spectators should wear face coverings whenever applicable.
      • Wash your hands and/or use hand sanitizer upon entrance, during the event, before and after you eat, and as you leave. Hand washing and hand santizer stations are provided.
      • Avoid touching your face including your eyes, nose, and mouth.
      • Small public restrooms should limit occupancy to one person at a time.
For more details on the sample mitigation guidelines above, see CDC Considerations For Youth Sports.

Sadler COVID-19 Risk Management Templates 

Other insurance policies that may apply to coronavirus

Event Cancellation Insurance is a stand-alone policy that pays for certain financial loss if an event is cancelled, postponed, curtailed or relocated beyond the control of the policyholder. Covered perils may include, but are not limited to, hurricanes, earthquakes, severe/adverse weather, outbreak of communicable disease, terrorism, labor strikes, non-appearance of key people, and unavailability of the venue due to fires, floods or power outages

Though outbreaks of communicable disease are commonly covered under Event Cancellation policy forms, the two leading carriers have recently started to exclude (not cover) coronavirus on newly issued policies. One carrier is issuing a specific coronavirus exclusion, whereas the other considers it to be an excluded pre-existing condition. However, Event Cancellation policies issued prior to the addition of the recent coronavirus restrictions may not have a coronavirus exclusion.

Also note that even if a coronavirus exclusion does not exist, a claim would only be covered if it is not possible for the event to move forward due to travel restrictions, state or local ordinance restrictions, or the suspension of facility operations. These factors are beyond the control of the insured. It is not enough that the attendees or event organizers have a fear of traveling or of catching the virus and voluntarily make the decision to cancel or alter the event.

Directors & Officers Liability covers the business entity and its directors and officers against certain lawsuits alleging managerial negligence that results in economic damages or the violation of rights of others under state, federal, or constitutional law. It is possible that a decision involving the failure to anticipate the financial impact of coronavirus and to take appropriate action could result in economic damages to the business and a subsequent lawsuit by shareholders or other stakeholders against the negligent directors and officers. However, D&O carriers may attempt to deny such a claim because of the “bodily injury” exclusion that is found in D&O policies. Many claims adjusters will take the position that economic damages arising out of bodily injury (i.e. coronavirus sickness) are excluded. However, this position is already being challenged in the courts in other contexts and the ultimate results are unclear.

Worker’s Compensation / Employer’s Liability Insurance covers certain on-the-job injuries and occupational diseases to employees and uninsured subcontractors, including medical bills, lost wages, and disability awards. It’s possible that an infected employee could file a Workman’s Compensation claim. However, Worker’s Compensation Commissions in some states may take the position that a covered occupational disease must be one that is specific to employment and not an ordinary disease to which the general public is exposed outside of employment. An exception may be health care workers who are exposed as part of their employment.

Business Interruption.  Sports facility owners and other sports organizations that own buildings or insure contents may carry a Commercial Property policy. Commercial Property policies often include Business Interruption / Extra Expense insurance which provides coverage for loss of business income (lost profit plus continuing operating expenses) while operations are totally or partially shut down as a result of a covered loss to insured property.  Also provided is Extra Expense coverage for the additional and necessary expenses after a loss to the extent that they offset the Business Income loss. In order for Business Income coverage to be triggered, there must be a direct physical loss to the property that is being covered, whether it is building or contents.

Some Property policies may include a coverage called Contingent Business Interruption which can trigger coverage in the event that there is a covered loss to the premises of suppliers, customers, or key partners. This coverage does not require any such loss at the insured’s own premises.

It is doubtful that contamination of building and contents would be considered a direct physical loss that would trigger business interruption coverage. Also, many property policies include a virus or bacteria exclusion which would further restrict coverage.

In addition, the Property policy may include coverage for acts of civil authorities that restrict access to an area. If such coverage exists, this may trigger a covered Business Interruption claim.

Coverage for any of the above-referenced Business Interruption coverages is not certain. Each case will depend on its own unique facts. Furthermore, the outcome will be dependent on the policy form and the existence of certain bacteria or virus exclusions that may apply. However, these claims may at least be worth discussing.

Conclusion

This coronavirus resource page will be updated frequently as new information comes to light. The purpose is to provide a framework to think through the risks to help each sports organization make an informed decision regarding cancellation and/or mitigation of risk. In addition, any potential coronavirus claims should be turned into the insurance carrier so that the claims department can make the coverage determination.

 

DISCLAIMER

THE VIEWS, OPINIONS, AND ANALYSIS EXPRESSED IN THIS BLOG ARE GENERALIZED DISCUSSIONS OF LIABILITY, INSURANCE, AND RISK MANAGEMENT PRINCIPLES BASED ON CURRENT KNOWLEDGE OF THE RAPIDLY CHANGING COVID-19 PANDEMIC AS IT IMPACTS THE SPORTS AND RECREATION INDUSTRIES. AS CONDITIONS CHANGE AND NEW INFORMATION BECOMES AVAILABLE, VIEWS, OPINIONS, AND ANALYSIS MAY CHANGE AND BEST EFFORTS WILL BE MADE TO UPDATE THE CONTENT IN THIS BLOG FOR CLARIFICATION. THE VIEWS, OPINIONS, AND ANALYSIS EXPRESSED MAY BE INCOMPLETE, INACCURATE, AND MAY OMIT CRITICAL INFORMATION. FURTHERMORE, NO SPECIFIC LIABILITY ANALYSIS, INSURANCE COVERAGE, OR RISK MANAGEMENT ADVICE IS PROVIDED FOR ANY PARTICULAR SPORTS ORGANIZATION. SPORTS ORGANIZATIONS SHOULD CONSULT WITH THEIR OWN INSURANCE AGENT FOR GUIDANCE BASED ON THEIR INDIVIDUAL CIRCUMSTANCES AND INSURANCE POLICIES. NO LEGAL ADVICE WHATSOEVER IS PROVIDED AND SPORTS ORGANIZATIONS SHOULD CONSULT WITH LOCAL LEGAL COUNSEL AS REGARDS THEIR POTENTIAL LIABILITIES ARISING FROM OPERATING DURING THE COVID-19 PANDEMIC AND BEST PRACTICES FOR RETURN TO PLAY AND RISK MANAGEMENT MITIGATION STRATEGIES TO REDUCE LEGAL RISK. SADLER & COMPANY, INC. DBA SADLER SPORTS & RECREATION INSURANCE DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM THE DISSEMINATION OF THIS CONTENT.


Coronavirus Resources

CDC Coronavirus Disease Situation Summary

CDC Coronavirus FAQs

CDC Coronavirus Travel Information

CDC Interim Guidance for Businesses and Employers

World Health Organization Coronavirus Disease Outbreak

4 Key Coronavirus Insurance Coverage Battlegrounds

US Olympic Paralympic Coronavirus Information for Team USA Athletes and Staff

Breaking Down Business Interruption: How Insurance Can and Cannot Mitigate Coronavirus Losses

Coronavirus in the Workplace – Compliance Considerations for Employers

Does Business Income Insurance Cover Coronavirus Shutdowns?

P/C Insurers Put a Price Tag on Uncovered Coronavirus Business Interruption Losses

Few COVID-19 Liability Lawsuits Filed So Far

How COVID-19 Court Lockdowns May Reduce Settlement Amounts

Coronavirus and the CGL

Will General Liability Insurance Respond to COVID-19 Claims

Businesses Fear Lawsuits from Sick Employees, Patrons After Reopening

How will youth sports return to play? USOPC offers first glimpse

Return to Play COVID-19 Risk Assessment Tool: From Aspen Institute

AL Gov. Kay Ivey extends public health emergency, issues COVID-19 lawsuit protections

USA Softball Back To The Ballpark Recommendations

CDC Guidance in Parks and Recreation Facilities Including Organized Sports

Open TX Checklist For Youth Sports Operators

NCYS Return To Play Considerations

NFHS Sports Medicine Advisory Committee Recommendations On Opening Up High School Athletics

United States Specialty Sports Association (USSSA) Return To Play Guidelines

Little League Season Resumption Guide

Teams/Leagues and Facility Owners: Beware of Low-Quality Sports Insurance

Insurance certificates, brochures, and proposals that can put teams/leagues and their respective directors, officers, employees, and volunteers at financial risk of uncovered lawsuit

Many sports team and league administrators hope or believe that they have adequate protection under their Accident and General Liability policies. They usually place their trust in their local insurance agent – or even a so-called sports insurance specialist. Some that have their insurance provided by their municipal recreation department may rely on their risk manager.

But, how do they know for sure that their insurance adequately protects against some of the most common types of devastating lawsuits?

Many would like to think that their insurance will never be tested. Perhaps they can get by for several years, but eventually something bad will happen.

What are the risks?

We created an article, “Horror Stories About What Can Go Wrong,from claims that were filed by our own clients. Most of their experiences are the expected spectator slips/trips/falls, more serious player injuries resulting in lawsuits, and a number of bizarre and unexpected occurrences. You just never know where risk lurks. Some of the largest sports claims usually arise outside playing the sport itself. We’ve seen large lawsuits arising from the following areas:

  • Falls off parade floats
  • Bleacher collapse
  • Heat illness deaths
  • Charter bus crashes
  • Electrocutions from shorts in light poles
  • Burns when cooking in concession stand
  • League signage blocking view of driver resulting in fatal car crash
  • Large slander/libel lawsuits
  • Fights between umpires and parents

With so much risk abounding within sports and recreation organizations, the quality of insurance must be taken very seriously.

Where the problem begins

Sports and recreation administrators often rely on a simple review of the wrong types of documents. It is a Injury claimmistake for a sports administrator to depend on the review of a certificate of insurance, brochure, or proposal from an insurance agent. None of these documents contain complete details on all policy coverages, definitions, conditions, and exclusions. Dangerous exclusions that take away coverage are often hidden in the fine print.

For example, a certificate of insurance may disclose that a General Liability policy contains a limit of $1 million. However, that same policy may have an exclusion for Athletic Participants. The certificate of insurance will not necessarily disclose the existence of this devastating exclusion, which has a huge bearing on protection.

The  only source for finding the answers on coverage is the actual insurance policies themselves. The problem is that the policies can be exhaustive to review. A typical Accident policy may be 70 pages long, and a typical General Liability policy may be 90 pages long.

Adequate sports insurance checklistProtect yourself with our Insurance Coverage Checklists

We provide the following checklists that can be given to insurance agents for their completion. That way, signing their name to any wrong information on the document could mean that their Errors & Omissions insurance is on the hook.

  •        Sports Organization Insurance Coverage Checklist (Printable PDF)
  •        Recreation Department Insurance Checklist (Printable PDF)

Facility owners at risk when permit holders and facility users carry inadequate coverage

Facility owners such as recreation departments and schools are also at risk when they lease or permit their facilities to facility users. These may be teams, leagues, tournament hosts, camps, instructors, etc. Many facility owners blindly rely on certificates of insurance thinking they tell the whole story.  However, many facility owners are surprised when their own insurance takes the hit instead of the facility user’s insurance they relied upon.

See Insurance for Facility Users of Rec Departments and Schools for more information on how facility owners can protect themselves. Learn how you can offer a referral source so that facility users can quickly and affordably obtain high-quality sports insurance from an industry leading source.

Buyer beware: With just a little effort you can confirm the quality of your sports insurance

With just a little due diligence and use our our checklist tools, teams/leagues and facility owners can verify that they are adequately protected. Your organization and respective directors, officers, employees, and volunteers are counting on you to make the right decision regarding their protection.

If you have questions about the adequacy of your current sports insurance policies, we can provide a no-obligation review. Contact us with your questions.

The Importance of Prompt Reporting of Injuries

What can happen when evidence is no longer available

Kim Marshall was injured while working out on a treadmill at Bally’s in Tacoma, Washington. As a result of her injuries, Marshall filed suit against Bally’s Pacwest, Life Fitness, the company that manufactured and owned the treadmill, and Washington Athletic Repair, the company that installed and maintained the treadmill. There were some discrepancies as to what actually caused Marshall to be ejected from the treadmill, and it was this discrepancy that led to the dismissal of her suit.

The following facts where established in Marshall’s original deposition: She set the treadmill at 2.5 miles per hour for fifteen minutes. The treadmill abruptly stopped at thirteen minutes. Ms. Marshall reset the machine, but it restarted at 6.2 miles per hour instead of the slower pace she had initially programmed. This sudden start threw her backward, causing her to strike her head against a plexiglass wall. The blow to the head resulted in a brain injury.

However, when questioned at trial, Ms. Marshall said she could not remember anything after resetting the machine. She could not recall the speed the machine restarted at or even if she was thrown backward into the plexiglass wall or to the side against something else. Her attorney stated that she had a two-week memory lapse following the brain injury.

The trial court concluded that once she testified in court that she could not remember what actually happened after she reset the treadmill, she could not point back to her deposition and assert that previous testimony as fact. And because she could not tell the court what the machine did when she reset it, she had no proof that the machine malfunctioned at all. The court reasoned it was just as likely that she tripped, fainted, or fell after resetting the machine because there is no other evidence to establish what happened.

Marshall attempted to win on another legal theory called spoliation, which is the intentional destruction of evidence. This theory is based on the assumption that, when one party intentionally destroys evidence relevant to a case, that evidence must have been unfavorable to them. In this case, Marshall’s injuries occurred in May 1993, and her attorney did not ask to examine the treadmill until September 1997. After Marshall’s injury, the treadmill remained in use at Bally’s. In November 1993, Washington Athletic replaced the CPU in all Life Stride 9500 treadmills, including the one at issue. Marshall’s attorney had not requested that the CPU be preserved. That same treadmill remained operational until April 1997, when its frame broke. At this time, the machine was returned to Life Express for replacement. The court concluded that, because Marshall’s attorney did not request to inspect the machine until four years after the incident, Bally’s could not be held accountable for having destroyed evidence.

Finally, the court also took into account the waiver clause in Ms. Marshall’s Membership contract with Bally’s. The clause stated, in part, that

“the club member is “voluntarily participating in these activities and assume(s) all risks of injury… that might result” and that the member agrees “to waive any claims or rights (the member) might otherwise have to sue (Bally’s) a factor, the court took into consideration when dismissing Marshall’s claim the fact that she could not prove that her injury resulted from any malfunctioning of the treadmill she was using. “–   Marshall V. Ball’s Pac West, Inc., 972 P.2d 475, (Wash.1999).

In My Opinion

Proper accident and injury reporting can go a long way in documenting proper practice and enhance the ability to succeed in litigation.  In the above case, if witnesses observed that the plaintiff tripped and wasn’t thrust from the treadmill as she stated, the claim could have immediately been dismissed, thus avoiding expensive legal defense fees.  Prompt accident investigation procedures including written witness statements are important.

Article Compliments of From the Gym to the Jury, Volume 1, Number 1.

Sports / Event Insurance for Terrorism, Active Shooter, and Civil Unrest

Las Vegas incident could be tipping point for revamped insurance and risk management

Ever-increasing threats involving terrorism, active shooters, civil unrest and other malicious acts bring to light the need for new, more comprehensive insurance coverage forms. They also prove the need for pre-event and post-event risk management.

As a result of the Las Vegas incident, gone are the days when sports / event administrators can just hope for the best. Sports and recreation events with large numbers of participants / spectators in public settings are ripe targets for malicious actors. As a result, these organizations must start to purchase appropriate insurance and follow risk management best practices when addressing these threats.

The rise in incidents

Active shooter is the most recent peril to gain widespread media attention. This is due to its increasing frequency, ease of planning / execution, and difficulty in prevention. The Department of Homeland Security’s (DHS) definition of an active shooter is “…an individual actively engaged in killing or attempting to kill people in a confined and populated area; in Terrorism insurancemost cases, active shooters use firearms(s) and there is no pattern or method to their selection of victims.”

According to the Advanced Law Enforcement Rapid Response Training Center, active shooter events increased from 5.2 per year from 2000 to 2008 to 15.8 events per year from 2009-2012. The figure rose to an average of 20 incidents per year in 2014 and 2015, according to the FBI. Most of these events occurred on business, school, and government properties. However, the Las Vegas incident introduced sports and recreation venues as high-profile target areas.

Mass violence and civil unrest perils represent the potential for many types of losses to sports and recreation organizations

  • Liability for failure to have a risk management plan, failure to respond, inadequate on-site security, inadequate on-site medical personnel, fencing too high to escape, etc. resulting in bodily injury to participants, spectators, employees, independent contractors, vendors, and other members of the public. The potential for damages are astronomical due to the large number of people at risk.
  • Property damage to premises and clean-up expenses. Property damage may result from bullet holes, bomb blasts, fire, vandalism, and contamination. Clean up may include removal of bodies, blood, debris, and contaminants.
  • Public relations expenses and post-event counseling expenses due to emotional and psychological duress.
  • Loss of income from the event and future events, both at the same location and all locations.
  • Loss of reputation resulting in lost future revenues.

Meet the mass violence and disruption perils

Standard terrorism: Traditional terrorist attacks are large scale and highly coordinated. They typically target global corporations, buildings, transportation systems, and other infrastructure with bomb blasts. A new type of ISIS-inspired terrorism emerged in recent years with smaller, lone-wolf type attacks. These include the use of trucks to run through crowds and small arms and knife attacks. Terrorists attempt to intimidate, coerce, or harm a civilian population or government.

Chemical, biological, radioactive terrorism: Terrorists can cause catastrophic loss of life, property damage, and financial loss from chemical, biological, and dirty bomb terrorism. Even the mere threat of these types of terrorism incidents can cause massive losses due to closures, evacuations, and postponements while the threat is being investigated.

Cyber terrorism: Terrorists may employ cyber attacks on a government’s infrastructure, industrial controls, banking system, hospitals, etc., resulting in property damage and business interruption.

Active shooter: Active shooters are typically single assailants who attack large groups in confined spaces. They have no connection to their victims and are not motivated by terrorist causes.

Civil unrest: A disruption in the social order involving a group of people engaging in protests, riots, and strikes, which may result in violence, property damage, and loss of revenue.

Impairment of access: Acts or mere threats of violence can prevent employees or customers from accessing work sites, resulting in financial loss. Impairment may result from terrorism, civil unrest, strike, or government cordon at either the employer’s location, adjacent locations, or within a certain mile radius.

What insurance coverages are required to protect against mass violence and disruptions?

The types of common insurance policies that can come into play after a mass violence or disruption incident are Workers’ Compensation, General Liability, Excess Liability, Property (direct damage and loss of business income), Cyber Risk, Event Cancellation, and Active Shooter insurance.

Workers’ Compensation and Employer’s Liability

Workers’ Compensation responds to job-related injuries to employees or uninsured subcontractors. It covers medical bills, lost wages, and lump-sum awards for disabilities, disfigurements and death benefits. Uninjured employees who witness a malicious act event may qualify for benefits due to post traumatic stress disorder (PTSD). Workers’ Compensation is typically the exclusive remedy for an injured worker.  But some scenarios may arise where employers can be sued directly for failure to respond to specific threat warnings prior to an event. There is no terrorism exclusion under a Workers’ Comp policy.

General Liability

The standard General Liability policy form carried by most sports and recreation organizations will likely respond to most claims alleging failure of the organization to prevent or adequately respond to an incident resulting in Property damagebodily injury or property damage. Note that the policy’s each-occurrence and/or aggregate limit may not be adequate to pay the types of extreme damages that may result when multiple individuals are killed or seriously injured.

General Liability policies may contain an exclusion for certified acts of terrorism as defined by the Terrorism Risk Insurance Act (TRIA) unless the buyback has been selected with the additional premium paid. Opting for the buyback, which is relatively inexpensive, is strongly recommended. To be a certified act of terrorism under TRIA, all property & casualty insurance losses must exceed $5 million and an effort made to coerce a civilian population of the U.S. or influence the conduct of the U.S. government.

Excess Liability / Umbrella 

Excess Liability insurance extends the liability limits of the underlying General Liability policy in increments of $1 million, depending on the policy limits purchased. The same coverage considerations that apply to General Liability also apply to Excess Liability. Excess Liability policies may contain the TRIA exclusion for certified acts of terrorism. In addition, some carriers may apply an additional exclusion for non-certified acts of terrorism. This could eliminate coverage for smaller scale terrorist events and active shooter situations. Sports organizations should strongly consider opting for the buyback from certified acts of terrorism under TRIA. They should also consider negotiating with their carrier to remove any exclusion for non-certified acts of terrorism.

Property and Business Interruption

Property insurance policies may pay for Interruption of Businessdirect damage to buildings and contents from a covered malicious act attack. They may also cover indirect damage, which includes loss of business income and extra expense.

Coverage for business interruption is only triggered if there is a direct physical damage loss under the policy. Organizations should also consider a business income buyback for losses stemming from actions by a civil authority to prevent or limit access. This commonly occurs after a malicious act as the location will be considered a crime scene. Business interruption insurance is a complicated coverage. As a result, if a loss occurs, organizations should hire an expert to assist with the filing of a claim to maximize recovery.

Certified acts of terrorism under TRIA can be covered if the buyback is selected and the additional premium paid. However, even with TRIA, the standard war exclusion will not be removed and additional exclusions may exist for nuclear, biological, chemical, and radiological (NBCR), depending on the state.

Cyber Risk

Cyber extortionists can shut down computer systems with denial-of-Ransomware attackservice attacks and other cyber-extortion schemes. Terrorists can hack into systems causing direct damage to equipment, software programs, and data. Cyber Risk policies can pay for the following direct damages to the policyholder: extortion or ransom costs; restoration costs of lost data, information, and programming; and business interruption and extra expense resulting from failure of computer systems.

Cyber Risk policies can also pay for liability costs resulting from hacking, breach of confidential data and related credit monitoring costs.  

Event Cancellation Insurance and Enhancements

Due to the limitations of standard property & casualty insurance policies, we advise sports organizations hosting events purchase Event Cancellation insurance with appropriate coverage enhancements.

Traditional Event Cancellation policies may cover loss of business income due to adverse weather; venue unavailability from perils such as fire, collapse, gas leaks, and flood; wildfires, earthquakes; loss or power or communications; communicable disease; non-appearance of key speaker or entertainer; and national mourning.

Additional endorsements may be available to cover loss of business income due to terrorism; sabotage; active shooter, chemical, biological, radioactive or nuclear (CBNR) terrorism; war, civil war, and political subversion; strikes, riots, and civil commotion; political intimidating; and national mourning. Some carriers may extend coverage to mere threat of many of these perils.

Active Shooter Insurance

New specialty forms have emerged for stand-alone Active Shooter Insurance. If this coverage can’t be endorsed onto an Event Cancellation Policy for loss of revenues, sports / event administrators should consider an Active Shooter policy. Also, Active Active Shooter InsuranceShooter policies offer a liability limit. The most common coverages and benefits are as follows:

  • Primary Liability with limits ranging from $500,000 to $25,000,000 to cover allegations of negligence from harm caused by attacks using deadly weapons. Even if existing General Liability and Excess Liability policies respond to these allegations, such limits may not be high enough to cover potential damages in an active shooter situation. As a result, a high-limit Active Shooter policy may be a more cost effective way to increase protection.
  • Pre-event services, such as security vulnerability assessment, preparedness seminars, and training modules.
  • Post-event services, including crisis management, advising on emergency communications, emergency call center, and counseling.

Pre-event risk management training for active shooter

Pre-event risk management for active shooter situations is becoming commonplace in educational, business, and governmental settings. Training staff on how to exit, resist, or fight can buy time for law enforcement to arrive.

One respected source of training is the ALICE Training Institute, which focuses its online training module on the following:

Alert: Recognizing danger, first notification to those at risk and law enforcement

Lockdown: Secure in place if unable to evacuate or prepare to evacuate or counter

Inform: Notify law enforcement or others at risk in real time if possible

Counter: Interrupt intruder plans and objectives

Evacuate: Move from danger when safe to do so

ALICE provides client-specific training with a plan geared towards particular locations. In the context of sports and event incidents, the two preferred techniques are usually alert and evacuation.

How to get a quote for Event Cancellation and Active Shooter

For more information on Event Cancellation and Active Shooter insurance and risk management please complete our Contact Us form or call 800-622-7370 and ask for our sports department.

 

2015 American Youth Football & Cheer Insurance Program Released

The gold standard that is the envy of the competition

The American Youth Football and American Youth Cheer endorsed insurance provider, Sadler Sports Insurance, has released the new 2015 insurance program for teams /associations /conferences.  Detailed 2015 coverage and rate information  is now available on our website Our online enrollment became operational on May 16, 2015.

The 2015 offering is, once again, the gold standard in youth football and cheer insurance with an unbeatable combination of low rates, broad custom coverages, and best-in-industry automation that allows instant online enrollment and issuance of proof of coverage documents and certificates for field owners. But that’s not all: the program also provides best-in-industry risk management resources to prevent injuries before they become claims and groundbreaking studies on safety in youth football and cheer.

Apply, pay, and print proof of coverage documents and certificates in as little as 10 minutes

Our advanced automation is so simple and fast that you can complete the entire insurance purchase transaction and print all your documents in as little as 10 minutes. Many competitors require the completion of forms and days of waiting just to get a quote. Then, once the quote is bound, it can take several days to get the proof of coverage document sand certificates for field owners. Or, they could charge $100 extra for next day rush delivery.

After the purchase, we provide our clients access to our website so that they can self-issue certificates for new field owners 24/7. It’s so easy and our clients love this benefit.

Beware of competing programs that seem too good to be true

We often hear stories about a competitor offering cut-rate policies with a per team rate that is too low to be believable. Whenever this happens, something ends up being defective with the offering, which illustrates that if something is too good to be true, it usually is. We’ve seen cases where the quoted price did not include the cost of both the Accident and General Liability policies, where the organization never reported the transaction to the insurance carrier and no insurance was in force, and where a big corporation was going to foot the bill for the insurance (dream on), etc. After a little bit of digging, these schemes fall apart.

What is being done to combat the risk of concussion/brain injury and related litigation?

Sadler Sports Insurance has released a new Football/Cheer Concussion Awareness Risk Management Program (short form) that is strongly recommended for all teams/associations/conferences. This free program can be downloaded from our risk management page. This program consolidates accepted risk management practices into a three-page document for easy board adoption and implementation. We recommend coaches complete the AYF coaching education program. Certification is required of head football and cheer coaches participating in AYF national championships. We also encourage coaches, volunteers and players view the Seattle Seahawks’ tackle video, which demonstrates their tackling methods. It is important for all teams/association/conferences to thicken their shields by adopting and fully implementing a comprehensive concussion/brain injury risk management program. The future of our sports depends on this action and it’s the right thing to do to protect the kids.

What is being done to combat sex abuse/molestation post Sandusky?

We introduced a simple one-page Child Abuse/Molestation Protection Program – Administrators (short form) that, if adopted by your board and fully implemented, will greatly lessen the chances of an incident occurring within your program. The free program can be downloaded from from our risk management page.

Best-in-industry risk management resources (free)

We have an incredible line up of free risk management resources including articles, legal forms, risk management program templates for your easy adoption and customization, and training videos for administrators and staff. This includes the newly created document entitled Sample AYF/AYC Advanced Plan, which is a comprehensive risk management program customized for AYF/AYC organizations. Please visit our risk management page to access these materials.

Be a part of groundbreaking injury studies

If you purchase your insurance through the endorsed insurance program, all Accident claims automatically become part of the database where our custom software analyzes the information to produce meaningful injury reports. This has led to groundbreaking studies on  the comparison of injuries in age only vs age/weight categories and the incidence of concussions within AYF/AYC.

Insurance for Youth Sports Leagues

The purchase of quality sports insurance policies, including Excess Accident, General Liability, Directors & Officers Liability, Crime, and Equipment,  is an essential element of a broader based risk management program. The purchase of these policies has become the standard in youth sports. Failure to do so subjects the entity and its directors, officers, employees, volunteers, and other stakeholders to uncovered liability and property losses. By purchasing quality insurance, the board of directors fulfills its fiduciary responsibility to act in the best interests of the organization and those who serve the organization, as well as the members who are benefited.

Quality sports insurance policies are now widely available in the marketplace from many different sources. They may be obtained through the sanctioning body or association to which a league belongs, if any, or from an independent source. Policies are available through local insurance agents or insurance agencies that specialize in sports insurance that operate on a national basis. However, there can be a wide discrepancy in the quality of coverages and some programs and carriers may offer substandard limits or unacceptable exclusions that can result in unexpected claim denial.

When comparing competing insurance plans, most decision makers tend to concentrate on price as the major differentiating factor. However, the quality of coverage is much more important. It is often difficult for decision makers to compare the coverages of one policy to another to determine which one offers the broadest protection. Insurance agent marketing materials, such as proposals, brochures and web page descriptions, often don’t include complete information about all policy coverages and exclusions. The only way to really know what is offered is to enlist the assistance of an experienced business insurance professional to review the actual policy forms. However, most leagues won’t go to that trouble. As an alternative, we offer a coverage checklist that can be presented to an insurance agent for completion and signature. This checklist will require the insurance agent to disclose how the policy deals with critical coverage elements and whether it doesVolleyball insurance or doesn’t meet recommended minimum standards for quality sports insurance.

Below is a brief summary of the most essential sports insurance policies with a brief overview of important coverage considerations.

Excess Accident: Pays medical bills on behalf of injured participants (players and staff) to the extent that such bills are not already covered by existing family health insurance, if any. This policy is usually required by General Liability carriers as a pre-condition of General Liability coverage. An Excess Accident policy should have a medical limit of at least $25,000, and higher limits should be strongly considered.

General Liability: Responds to certain claims or lawsuits alleging that the negligence of the sports organization resulted in bodily injury, property damage, personal injury (i.e. slander, libel, invasion of privacy) or advertising injury (disparaging statement made about a competitor in advertising materials) to a third party. The typical claim is bodily injury to a spectator or athletic participant. The “each occurrence” limit should be at least $1,000,000 and coverage enhancements should be considered for sex abuse and molestation and non-owned and hired auto liability. Dangerous exclusions to avoid include athletic participants’ exclusion, punitive damages exclusion, assault & battery exclusion, contractual liability limitation, and collapse of a temporary structure.

Directors & Officers Liability: Responds to certain lawsuits that are not covered by a General Liability policy involving managerial negligence or employment practices Basketball Insuranceviolations. Examples include financial mismanagement; violation of rights under state, federal, or constitutional law; failure to follow own rules or bylaws when making a decision; wrongful suspension, termination, or discipline of staff or players; and discrimination based on race, sex, age or disability. The “each claim” limit should be at least $1,000,000. An important coverage extension to consider is Cyber Risk coverage to protect against losses resulting from data breaches of confidential information by hackers and for libelous statements posted on websites or social media.

Crime: Employee Dishonesty covers a financial loss due to embezzlement, theft of property, or unauthorized personal charges by an inside officer, director, or staff member. Coverage extensions should be added for forgery and alteration, as well as theft of money & securities. Sports organizations should implement financial controls to make such occurrences less likely to occur. The policy should be endorsed to extend Employee Dishonesty coverage to non-compensated officers and volunteers.

Equipment: Covers a financial loss from damage to sports organization equipment (i.e. sports equipment, field maintenance equipment, concession equipment, etc.) and small structures, such as bleachers, fences, and scoreboards from perils such as fire, wind, theft and vandalism. Coverage should be purchased on a replacement cost basis with equipment valued at 100% of replacement cost to avoid any co-insurance penalties in the event of a partial loss.

Other Policies: Larger sports organizations with more complex operations may require the following additional policies: Workers’ Compensation to meet requirements of state law pertaining to injured workers, Commercial Property to cover permanent structures such as larger buildings and their contents, and Commercial Auto to cover owned vehicles.

For more information on why each insurance policy is important and pitfalls to avoid, see the special report entitled “7 Critical Mistakes to Avoid When Buying Sports Insurance”.

Injury Claims Unique to Health Clubs

What they are and how to reduce risk of occurrences

You work too hard at running your health club to risk it all. But it could easily happen if a client were to sue over something you simply overlooked. Health club General Liability claims typically arise out of the condition of the premises and equipment. Regular cleaning and maintenance of the facility should be performed, and clients always properly instructed on use of the equipment. The three most common claims unique to health clubs and fitness centers are:

  • Falls while stepping on or off of a moving treadmill. which is usually a user error . However, a liability claim can be filed if the injured person did not receive proper instruction on use of the treadmill.
  • Health club risk managementSlips/falls in wet areas. These claims usually occur in locker rooms and sauna, Jacuzzi and pool areas. Such falls are best prevented with non-slip mats and warning signage.
  • Slips/falls in exercise classes. Participants in group exercise classes slip or fall off step platforms and floors that become wet with perspiration and/or condensation from water bottles.

General Liability Risk Management

Steps can be taken to reduce the risk of injuries and claims being made against your facility.

Equipment Maintenance

  • Document and retain maintenance and repairs
  • Equipment safety signage should never be removed
  • Cardio and strength equipment should be checked daily
  • Power cords should be taped down to prevent trips and falls

Wet Areas

  • Non-slip floor mats and safety grab bars should be securely installed at showers/saunas/Jacuzzi exits
  • Signs warning “CAUTION: WET AREA” should be permanently displayed.
  • Members should be encouraged to wear non-slip footwear in wet areas

Group Exercise Area

The condition of group exercise equipment and floors should be checked daily, particularly worn step treads and worn, wet or damaged sections of the floor

Professional Liability Risk Management

Steps can be taken to reduce the risk injury claims being made against your facility resulting from something a staff member or independent contractor does or says (or fails to do or say).

Waiver/Release Forms

  • Have all clients, members and guests sign a waiver or release before using any part the facility. Members and clients should sign a new waiver/release upon renewal each year.
  • Waivers should state that “instruction on all equipment and facilities has been provided and/or offered” to the individual.

Instruction

  • Fitness staff should physically demonstrate all equipment for new members and guests.
  • Renewing members should be offered refresher instruction and instructed on use of any newly purchased equipment.

Staff

  • Staff should all be trained in the proper use of all equipment upon hire and receive training on newly purchased equipment.
  • Fitness staff should be made aware of the policy they are expected provide proper equipment instruction to members and guests.
  • Staff should not exceed their qualifications for fitness and/or health training . Only staff with proper nutritional or medical certifications should offer recommendations in these areas.
  • Independent contractors should offer proof of individual professional liability coverage before working in the facility.

Emergency Procedures

  • All employees should receive a copy and acknowledge by signature receipt of the facility’s emergency procedures plan. This plans should include what steps to take in the event of injury, illness, fire, power outage, severe weather, etc.
  • The emergency plan should be reviewed with staff regularly during the year.
  • Staff who work on the fitness floor should be CPR and first aid certified. At least one CPR and first aid trained staff member should be on the floor at all times.
  • If the facility has an automatic external defibrillator (AED), at least one staff member with AED training should be on site at all times.

If you have questions regarding risk factors, please call us at (800) 622-7370, and you can visit our Health Club Insurance page to find a plan that suits your specific needs. We specialize in these areas:

Circuit Training

Day Spas

Exercise Studios

Fitness Clubs

Health Clubs

Pilates Studios

Yoga Studios

 

Soccer Goal Tipping Hazards

Unanchored goals pose danger to players

I came across a fantastic CBS News video that explains exactly how unanchored soccer goals can tip over and seriously injure or kill a child. At least one child fatality  and 200 injuries from tipped soccer goals are reported each year. Soccer goals can weigh several hundred pounds and cause catastrophic bodily damage, such as a crushed skull or broken limbs, when they tip over and come in contact with players. Coaches, players, and parents need to be educated on this topic and should check soccer goals prior to every practice and game to make sure they are properly anchored.

Sports General Liability insurance carriers that insure soccer organizations must often absorb full policy limit lawsuits resulting from these death claims.

You can view the video by following this link.