5 minute read
Beyond Jokes
How to Handle Personal Injury Lawsuits in Your Association
By Colin McCarthy, Esq.
How many lawyers does it take to screw in a lightbulb? … Three: One to hold the ladder; a second to screw in the bulb; and a third to sue the ladder company when one pulls the ladder away from the second.
Better hope the association was not responsible for that light bulb! Jokes aside, no manager or board wants anyone to be injured on the association property, even if the injured person was a lawyer. An injury usually means a lawsuit and a lawsuit usually means time and money expense for the association. When there is a personal injury lawsuit, the association’s manager will have to know about insurance and litigation, preserving evidence, and reacting to and repairing the condition that led to the injury. That’s what you will learn here.
Just like no one likes lawyers, nobody likes to talk about insurance. When a personal injury lawsuit gets filed and served, the manager should immediately “tender” (hand over for handling) the lawsuit to the association’s third-party liability insurer and contact your association counsel. If you have concerns about the impact on insurance premiums, discuss them with your association counsel. Call your broker if you don’t know how or exactly to whom to tender. That insurer will decide if there is insurance coverage and if so, pay for attorneys to defend the association in the lawsuit. These attorneys usually are very busy in-house attorneys who report to the insurer’s “adjuster.” They work together with the association, which is the “client” and “defendant” in the lawsuit, to gather information for the defense of the case and to decide if, when and for how much to settle the case.
When a personal injury lawsuit gets filed and served, the manager should immediately “tender” (hand over for handling) the lawsuit to the association’s third-party liability insurer and contact your association counsel.
While they do most of the lawsuit-related work and case evaluation, the manager will offer important support, providing facts, documents, and information to the assigned attorney so they can do their job.
Did you hear that my dog cannot read MRI findings? Not a problem because my cats can.
Having deposed many doctors, I learned that they had a saying about documents: if you did not write it down, it did not happen. Medical records are life and death important, so that makes sense. Documents are also important to have for the personal injury lawsuit and the manager will have to track them down for the attorney. The parties have to produce documents to each other, and the manager helps the insurance attorney do that. To facilitate production of important documents, including unfavorable documents, the parties have a duty to preserve all evidence related to the issues in the case. If they fail to preserve the records, the personal injury plaintiff may be allowed to tell the jury that the association was hiding things – “there must have been something bad in those records otherwise they would have kept them, as required.” That makes it important for the manager to make sure the right records are kept for the lawsuit.
The Association Gets Served, or Might, Now What?
So, when the association gets served with a lawsuit, or you have notice that there might be a lawsuit, you should do two things. First, set up a separate “lawsuit folder” and put every document that is related to the issue condition/ improvement in that folder: reports, photographs, minutes, vendor contracts, historical records, correspondence and emails. These you will turn over to the lawyer for her to decide if they should be produced to the other side or protected from disclosure. Second, distribute a written communication to all persons at the association who may have documents related to the case (board members, management team members, employees) instructing them to preserve all of their records that might relate to the incident.
Consult your legal association or insurance defense counsel about which documents, the wording and to whom to direct the instruction. The case can be lost if you fail to preserve needed and known records for the case.
In theory, board members will not have many records to produce, unless they are conducting board meetings and association business by email instead of at duly noticed board meetings. When the board conducts meetings by email, every word, thought, consideration, insult, pejorative, and argument is part of the record to be kept for litigation. When the board conducts meetings at a duly noticed meeting, the minutes are the only real record of the occurrence, and the only record that would really be expected for official board action. Even thoughtful email discussions can be taken out of context and used against the association. With minutes, the board is able to still make a record but control the amount of information about a particular topic which will be in the record.
Lastly, when someone is injured as a result of a common area condition or improvement and there is a risk of further injury, you will want to make sure no one else gets hurt. Fix the problem! Do not worry about it looking bad in the lawsuit. There is an evidence rule that keeps your remediation out of evidence so it cannot be used against the association. If you cannot fix it right away, you should secure it and give notice to members about such conditions so they can take their own precautions.
What do you call 50,000 lawyers at the bottom of the sea? … A good start.
Hey! That is a bad way to end this article. Lawyers, including this author, are people too and we don’t like that joke.
