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Workers suing employers over active shooter incidents

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Tree of Life Synagogue Pittsburgh

SAN DIEGO — More lawsuits are being filed against employers in connection with active shooter incidents, said a speaker at the Professional Liability Underwriting Society’s conference in San Diego on Thursday.

Claudia A. Costa, a partner with Gordon Rees Scully Mansukhani LLP in New York, spoke during a session on significant employment liability issues at the conference as attendees were still absorbing the news of the shooting in a Thousand Oaks, California, bar Wednesday in which 12 people plus the gunman died.

She observed that all the recent incidents have the common factor of having occurred in a workplace, whether it was a bar, a place of worship or a school.

With the number of these incidents increasing dramatically, “more and more lawsuits are being brought against employers” in their wake, said Ms. Costa during the session.

The U.S. Occupational Health and Safety Administration’s general duty clause states employers must have a place free of recognized hazards, and active shooting incidents are considered such a hazard, said Ms. Costa, adding her firm has been involved in defending some of these cases. Claims filed against employers in these situations include negligence and failure to train workers, she said.

Other charges, she said, include negligent hiring and retention, which was an issue in the 2003 naval yard shooting in Washington, D.C., that left 12 dead.

In that case, complaints from fellow employees that the shooter heard voices in his head were not addressed, and there had been a prior incident in which the shooter had shot through his ceiling to the apartment of a neighbor, she said. Bullying was cited as a factor in the 2015 San Bernardino, California, shooting, in which 14 people were killed, said Ms. Costa.

These shootings and the ensuing litigation have “made all employers take notice of these risks,” which can involve employees, customers, clients, strangers and those related to these people, said Laura Zaroski, Chicago-based area senior vice president of the law firms practice for Arthur J. Gallagher & Co.

Coverage, which varies, is primarily coming out of Lloyd’s of London right now, she said, with a handful of domestic insurers. Coverage can include counseling, medical disability expenses for victims, funeral expenses, death benefits and “loss of attraction” coverage when a mass shooting results in a loss of revenue because people are no longer coming to the location of the incident.

Other coverages include the cost of upgrading a building and its security, damages to the building, relocation costs and sometimes the cost of a teardown following an incident, she said.

Employees should be trained to recognize potential situations. “We shouldn’t just be waiting for an event to do it for the first time,” said Ms. Zaroski. “Let’s learn what to do and handle the satiation before it arises.”

Thomas Lookstein, New York-based head of financial and professional line claims for Starr Adjustment Services, a division of Starr Cos., said one question that should be addressed is whether these policies have terrorism exclusions.

Marchelle M. Houston, senior vice president, bond and specialty insurance, for Travelers Co. Inc., said another potential claim is kidnap and ransom, where people are unable to leave a facility during an incident.

Other issues covered during the session included the #MeToo movement, sexual orientation discrimination, religious discrimination and Supreme Court rulings.