ADA Violations

[GRCinCA]

Anyone have any experience trying to get a carrier to defend claims made alleging violations of ADA? What have you seen? How did it unfold?

[William Graham]

Not run across this

I presume it is a commercial risk?

I would appreciate knowing the details - if it gets litigated there, I am sure it will spread
like fleas from one legal beagle to another.

[NYagent301]

What kind of ADA Violation? If there is no BI or PD then no defense under CGL. If the claimant is an employee then yes for EPL. Need more info.

[justthere]

This has reared it's ugly head a number of times in California. I had one client who was sued because his diasbled parking sign was not completely correct, his bar on the bathroom was was 2 inches tow low and his counter for ordering was not low enough. Attornies hire truly disabled people to come in and make the allegations. Most never get to trial because most of the time, all they want is money. This type of claim is covered under an EPLI policy with Third-Party Liability. the two main clients I have who have been sued had been offered this coverage by me and had turned it down. Their costs have run close to $100K each to fight it. The coverage is easy to find. You need to offer it to cover yourself.

[JAM]

EPLI with 3rd party will generally cover this. Some carriers like CNA will give you the option to ad it as an endorsement up to 500k. For more coverage you need to go to surplus lines. Some captive carriers like farmers have this endorsement as well but their lacks another very important coverage, wage and hour.

[waves101]

I have a fast food client who was hit by 2 of these, in my opinion, serial litigists. Between the 2 individuals, they have filed 110 ADA suits in the last 5 years. To my knowledge, the best way to get the defense is a full form third party EPLI policy. However, a true umbrella policy may drop down and provide the defense too.

[Blondie2]

JAM
I agree that third party liability needs to be added on the EPLI; however, I have a commercial property owner (with no employees) that was just hit with one of these lawsuits. Now what?

[GRCinCA]

This did not come up as a claim. It came up when a client called and asked about coverage. He leases his office space in a building with no wheelchair ramp. The lease was up and he was trying to determine whether to sign another agreement - and was wondering how it would play out if he was sued. Could he expect his carriers to defend? I explained that it was unlikely his CGL and E&O would answer a claim and that the it would be best if he added EPL with 3rd party coverage. From the responses on this board I believe I was right on.

We also discussed the possibility the building owner would be the likely target of the suit - but that it is not altogether unreasonable to expect that an attorney would name EVERYONE possible in the event there was a lawsuit and in that case he would much rather have coverage. One additional issue: did he KNOW this was a possible claim? I wonder if that would come up when filing a claim...

[LadyBroker]

Blondie2 -- while you are correct that your client doesn't have employees, he does have tenants. I know you can buy a policy that covers Tenant Discrimination -- call your broker and see if that policy would Defend your client against an ADA claim.

I have been told, but do not know this first hand, that while an EPLI policy with 3rd party coverage will Defend an ADA claim, it will not pay the remediation. In other words, if your client has to re-configure the bathrooms to comply, the insurance company doesn't pay for that. If anyone has different info, it would be great if they would post!

[Rock54]

One additional issue: did he KNOW this was a possible claim? I wonder if that would come up when filing a claim...

This could be a problem if on the application for the EPLI 3rd party insurance there is a question "Is your facility designed to be ADA compliant?" If the answer was "yes" and 3rd party coverage is provided a covered claim may reveal a known condition existed at the time of the application allowing the carrier to rescind the policy. Or, if the answer was "no" the carrier may decline to provide the 3rd party coverage without an adequate explanation.

Some of the business owners have rejected the ADA coverage offer because they are aware that some individuals make their living by filing ADA non compliance claims. These business owners have done their due diligence to be ADA compliant and vow to fight these individuals and do not have a problem going out of business over alleged ADA violations.

[LadyBroker]

Who would go out of business over an ADA claim? I think that's a little far-fetched. And I don't believe any one offers ADA coverage in particular, it's part of the 3rd Party coverage on the EPLI policy, IF you buy the 3rd Party coverage. What I think is more likely is a client doesn't buy the 3rd party coverage because it's not adequately explained to him, and only after a loss occurs, if that more fully understood.

Having said all of that, my recommendation is to contact a broker who specializes in Professional Liability/Financial Services coverage, and let them help you understand the coverage better.

[justthere]

There is also one other answer, at least in California. If your client is willing to pay a certified ADA consultant to come out to the building and do an inspection and your client's building is then certified as ADA compliant, it works as a defense against Third-party ADA claims to get lawsuits dismissed. It still costs money but not as much. You can get a list of certified contractors off the web.