The purpose of this paper is to explain the State Self-Funded Liability Program (SSLP) as it relates to the University of Wisconsin, and the procedures campus risk managers should follow to receive the benefits of this coverage.
A liability exposure arises out of the fact that one party (for example the University or one of its employees) can be held legally and financially responsible for the injury of another person or their property. The University of Wisconsin System, in the course of its operations, has certain rights and duties which are prescribed by law. For example, the University has the right to invite the public onto its premises and likewise has the duty to maintain the premises in a reasonably safe condition. Failure to perform a duty to an acceptable level may result in injury. If the injury is caused directly by the failure to meet a duty, then an employee, officer, or agent of the University is negligent and may be responsible for the injury. This responsibility or liability may be imposed upon the Board of Regents and the University System through the general rule of agency.
III. Defenses to Liability
There are a number of defenses against liability which may be used by the risk manager in decreasing the University’s level of responsibility.
- The defense of comparative negligence can be used when the injured party is partially at fault for the injury or damage. For example, quite often University vehicles damage other vehicles due to improper backing. However, if the damaged vehicle was illegally parked, the University may argue that comparative negligence exists and that only partial damages will be paid.
- The assumption of risk defense may be used when a person has knowledge or awareness of risk and was voluntarily exposed to the danger. For example, a spectator at a hockey game assumes some risk when sitting directly behind the goal. The University may be partially negligent for improper guarding but may not have to pay full damages to a person injured by a puck.
- An exculpatory contract is an agreement which releases the University from any liability arising out of it’s negligence and may be used as a strong defense if negligence exists. Court interpretation of such an agreement may, however, result in some responsibility being placed on the University.
- A final source of defense for the University is the Statute of Limitations (893.82) which states that liability claims must be made within 120 days for vehicle and general liability claims and 180 days for malpractice. If the injured party fails to give notice within that time, the University’s level of responsibility may be decreased.
Despite these defenses, there still are a number of situations where the University will be held fully responsible for injury to people or damage to property resulting from the negligent actions of employees, agents or officers of the University.
IV. Policy-Coverage Definition
The University is currently protected for liability arising out of the negligent actions of its employees, agents and officers through the SSLP. This program is administered by the Department of Administration under State Statutes 893.82 and 895.46.
In order for coverage to exist, negligence must be proven on the part of a University agent, employee, or officer. Negligence can be determined through a four step analysis of the situation in which the injury occurred. The campus risk manager should evaluate each liability claim based on these four requirements:
- A duty of some type is owed by the University to the third party in the particular situation where injury occurred. For example, the University has the duty to drive safely when using vehicles on public roads.
- The University employee, agent, or officer fails to fulfill the duty that is owed, for example, fails to drive safely.
- An injury or damage to a third party occurs.
- The injury or damage which occurred was a proximate result of the University’s failure to meet its duty.
Based on these criteria, the campus risk manager can more clearly determine when negligence has occurred and when claim payment should be considered. Payment should also be dependent upon the fact that a University employee, agent, or officer was responsible for the negligence and that the individual was acting within the scope of his/her duties at the time of the incident.
The University does not provide liability protection for its employees, agents, or officers while they are acting outside of the scope of their employment duties.
V. Procedures-Claims Handling
1. Any incident resulting in injury or damage to a third party (a non-University employee) or their property should be reported to the campus risk manager. This includes but is not limited to bodily injuries which occur on University property or during University events to students or guests of the University; damage incurred to non-University property which is on or off campus as a result of University activities; or any other damages which may potentially be construed as the responsibility of the University.
2. It is the responsibility of the campus risk manager to inform campus personnel of proper reporting procedures and the need to promptly report all claims to the risk manager’s office because of the statutory time requirements related to claims. According to State Statute 893.82, the claimant has 120 days from the date of the incident to settle a claim therefore if a claim is not settled within 90 days of the date of loss, the campus should consult with State Risk Management and notify the unrepresented claimant of the Notice of Claim (NOC) requirement. If the claim will not be settled until after 120 days from the date of loss, the claimant or his/her representative must file a NOC with the Attorney General’s Office. In the case of a medical malpractice claim, the NOC must be filed pursuant to s. 893.82(5m), Wis. Stats. The NOC must include the following information:
• Time, date, location and circumstances of the event giving rise to the claim for the injury or loss, and
• Names of state officers, employees or agents involved
The NOC must also be sworn to by the claimant and served upon the Attorney General at his or her office in the capitol, Main Street office, or post office box, or any combination of those three addresses, by certified mail.
3. It is in the best interest of the campus risk manager to be aware of the incidents that are occurring and to assist the claimant in resolving the matter. In addition, the campus risk manager should retain a complete file copy of all claim and incident documentation for backup.
4. Assuming that the campus risk manager is the central incident reporting point for the campus, receipt of an incident report (DOA-6441) from campus personnel or from a third party claimant should be handled consistently.
B. Reporting a Claim by Telephone
Immediate notification should be given to both State Risk Management and System Risk Management by telephone in the event of any of the following.
1. Any medical emergency incidents including malpractice incidents.
2. Any motor vehicle incidents where bodily injury has occurred or where injury could develop, particularly in a situation where rear-ending has occurred.
3. Any general liability incident where bodily injury requiring medical attention occurs.
4. Any claim where damage to the other vehicle may be greater than $2,500.
Notice should include description of incident, name of claimant and details of action being taken.
C. Written Claim Submission
Written follow-up of incidents that have been reported by telephone, and written reports of the following incident types should be submitted; with the original going to State Risk Management and full photocopy to UW System Risk Management.
1. If it appears that there is ANY basis for a claim, or if a claim has been submitted, themust be filled out by the Risk Manager. The following relevant information should be included:
• police report/motor vehicle accident report if available
• witness statements
• claimant statements
• weather reports at time of incident
• statements from UW employees to substantiate situation–i.e., grounds keeper
• photographs of incident location
• medical bills
• two property repair estimates
• scope of employment statement
2. Medical malpractice incidents should be reported directly to State Risk Management where determination of investigation will be made.
3. Campus risk management should also submit copies of their claim reports to the campus safety department to assure that loss control efforts may be made.
D. Summons and Complaint
Any legal documents such as a NOC or Summons and Complaint should be sent immediately as follows:
1. Original should be sent to UW System Legal Office by the campus legal office or campus risk management office. System Legal will then request the representation of the Attorney General. The Attorney General has only 20 days to respond to the summons.
2. Telephone notification and copies should be given immediately to State Risk Management and UW System Risk Management.
3. All investigation will then be handled by the Attorney General; however, any additional documentation which is sent to them should be duplicated and sent to System Risk Management and UW State Risk Management for their files.
E. Claim Investigations, Recommendations, and Denials
The procedures outlined in this section apply to all campuses unless the risk manager notifies State Risk Management that they are unable to take on this responsibility. Any time a campus chooses to handle investigation of a claim, they should freely use State Risk Management for consultation and guidance in the investigation process.
Claim investigation should ensue as follows:
1. Fact gathering process–compile as much pertinent information as possible from the list above. Determine the circumstances of the loss and the persons involved.
2. Using the guidelines for negligence above and the facts, determine the extent to which the University is negligent. It should be noted that negligence can rarely be attributed 100% to one party. Responsibility for claims payment may be allocated based on a percentage of negligence.
3. If the University is clearly a majority at fault, send the necessary claimant accident report () to claimant with a cover letter explaining the procedure. Also obtain damage estimates from claimant. Upon receipt of estimates, the claim information, along with a payment recommendation from the campus risk manager, should be forwarded to State Risk Management with a copy to UW System Risk Management. This recommendation should be based on the estimates and the percentage at fault.
4. If the other party is a majority at fault, the University will want to both deny their claim and collect for any damages to University property. Denial of claims may be sent from the campus risk manager to the third party using a formal denial letter stating the lack of negligence on the part of the University, etc. Assistance with denials may be obtained from State Risk Management. Collection for damage to our property can be achieved using a copy of the, a motor vehicle accident report, and a letter requesting payment. Payment requests should be sent directly to the other party’s insurance company with copies to the party.
5. State Risk Management will make a decision based on the information submitted, the recommendation of the campus, and previous claims of this nature. For this reason, all pertinent information must be sent to State Risk Management in original form as soon as received. Prompt settlement will result in less cost and greater satisfaction for the claimant.
Loss reserves will be set up by State Risk Management as realistically as possible so as not to penalize the campus for good claim reporting. Loss reserves allow State Risk Management to better estimate their premium needs for the upcoming years.
The campus and UW System Risk Management will receive a copy of payment or denial by State Risk Management at which time the file may be closed. Claim files should be retained for ten years.
Note: In the event of a liability situation involving a DOA-leased vehicle, the claim will be handled as any other liability claim would be, with the experience being attributed to the campus. Only the damage to the DOA vehicle itself (first party property claim) is handled by the DOA fleet person.