All across the nation, things are starting to open up. For better or worse, the economy is being restarted, but there’s a catch…follow CDC guidance, maintain social distancing. With rules and regulations varying from state to state and even city to city, what does that mean in terms of your liability? How does your RWC Insurance Advantage Commercial General Liability policy respond to all this? This blog has devoted considerable space to what is covered in terms of trip and falls, completed operations and personal and advertising injury. But now we’re going to have to get very specific.
Anyone who pays the least attention to the news has seen reports of customers turning violent when asked to wear a mask, or maintain six feet distance from others. These scenes are hard to watch. In each case the owner of the business is walking a tightrope between what is and isn’t covered under a general liability policy; between his or her obligation to protect employees and the public and being sued. I’m referring to a little known exclusion that reads:
Expected Or Intended Injury – “Bodily injury” or “property damage” expected or intended from the standpoint of the insured. This exclusion does not apply to “bodily injury” resulting from the use of reasonable force to protect persons or property.
I’ve bolded the part that represents the “tightrope.” This is coverage that is provided by exception to an exclusion. Confusing? Imagine you own a bar and employ a bouncer. I know, you wouldn’t own that kind of bar, but humor me. A patron has one too many and starts a fight with another customer. The bouncer firmly escorts him from the premises, going so far as to call a cab so he doesn’t drive while intoxicated. So far so good. If the patron later claims he was injured, the chances are good, with a bar full of witnesses, that you would not be liable for the alleged injuries because your bouncer applied “reasonable force to protect” your other customer. But what if the bouncer, once he had the guy outside behind your bar, dislocated his shoulder and some passerby saw it? No judge or jury would consider this level of force “reasonable.” There would be no coverage under your policy. Businesses have been lost over things like that and the lawsuits they cause.
Now, think about your active jobsites, about the people who visit them, about the CDC guidance and the local as well as state laws that you are now obligated to obey. Then, think about one of those news stories of an irate customer refusing to wear a mask or maintain social distance. That’s a lot to think about. What is a reasonable business person to do? First, recognize you can’t control what is not under your control. Government regulations, irate members of the public are like the weather; everyone talks about them, but no one does anything. That said, you have some degree of control over your employees and subcontractors. Do they know what is expected of them when faced with an uncooperative visitor? In April’s blog we listed 17 bullet point suggestions and provided a link to CDC guidelines. Why not revisit that blog now by clicking “COVID-19 and Your Liability – Back to Normal?”