2018 CLM & Business Insurance Retail, Restaurant & Hospitality Conference
Premier Session I - Transgender Employees and Customers: What Retailers Need to Know
Dove Burns, Obermayer Rebmann Maxwell and Hippel LLP
Tracie Coleman-Tucker, Hanover Insurance
Claudia Costa, Gordon & Rees LLP
Jasmine James, Zurich North America
Federal law remains unsettled as to whether Title VII of the Civil Rights Act affords protections to transgender individuals. States and municipalities differ as to protections afforded. The Trump Administration has taken a dramatically different approach than the Obama Administration with respect to rights afforded to transgender individuals. The issue of bathroom access continues to be debated. What is a retailer to do? Underwriters, insurers, defense counsel, and business owners must all familiarize themselves with the rapidly changing law in this area, the trends and best practices to avoid what could prove to be an expensive business decision. This presentation will discuss the many issues regarding transgender employees and patrons. Many issues need to be considered from health insurance to handbooks. Management needs to be trained as to how to handle dress codes, employee verification and HIPPA laws.Back to top
Session 1 - Addressing the Special Handling of Hospitality Claims Involving Minor Children of All Ages
J. Stephen Deig, Liberty Mutual
Niva Harney, Kennedys
Farheen Khan, Rimkus Consulting Group, Inc.
This panel of seasoned experts will address the special handing and complicated nature of hospitality claims involving children of all ages. There will be a discussion of "Age of Reason" as well as how children process risk and warnings.
-The applicable standard of care in evaluating a minor claim is the same - was the person’s conduct when measured against the reasonable, ordinary and prudent person of similar age, education, intelligence, and experience, appropriate. However, in a minor claim, the parents’ contributory negligence can reduce recovery.
-Decisions, actions, and behaviors on the part of the minor child, the parents, and the premises can lead to incidents and such claims should take into account the minor child’s cognitive and developmental capabilities in assessing their appreciation of risk as well as the parents’ knowledge of and appreciation of the child’s abilities to carry on the behavior.
-Laws relating to minor testimony at trials, jury instructions, waivers, arbitration agreements, and indemnities regarding litigation rights are different nationwide and can affect case handling.
Session 1 - Banishing the Bully: Confronting the Hidden Threat of Workplace Bullying in the Hospitality Sector
Jeffrey M. Adelson, Bober, Peterson, & Koby, LLP
Diane Sanford, On the Border
Kendra Schropp, Freeman Company
Whether it involves derogatory comments, relentless intimidation or outright threats, bullying has no place in society or the workplace. However, each year large numbers of workers compensation claims, sexual harassment and discrimination lawsuits are brought against restaurants, hotels, casinos and other businesses across the hospitality sector stemming from bullying. The EU has enacted strict anti-bullying laws and California now requires employment practices sensitivity training to include modules on recognizing, reporting and addressing workplace bullying. In this session participants will learn how unchecked bullying leads to significant employment-related and workers compensation claims that can hurt productivity, damage reputation and lead to substantial litigation. The session will also review the emerging regulatory environment surrounding workplace bullying and describe measures employers can take to root out bullying before it takes a toll on their organizations.Back to top
Session 1 - Beyond the 5-Second Rule: Serving for the Win in Food Poisoning Cases
Joseph Gallagher, USLI
Daniel Jahnsen, Bolan Jahnsen Dacey
Annette Santamaria, J.S. Held LLC
Allison Stock, Rimkus Consulting Group, Inc.
Based on actual trial and claims experiences, this panel will discuss several aspects of foodborne illness cases, including cause and origin, incubation periods, and FDA and CDC protocols for inspection. The panel will also discuss trial-tested tactics for neutralizing plaintiff's experts through cross-examination.
-Foodborne illness affects 1 in 6 Americans every year. Evaluating liability, causation and damages in a food poisoning case requires analysis of many factors, including symptoms, time of onset, health department investigations, and other potential exposures.
-Absent direct medical proof of an outbreak related to a particular food, most food poisoning cases are defensible based on insufficient evidence as to the specific pathogen and/or improper food service practice alleged to have caused the illness.
-The primary role of the attorney and expert in defending against foodborne illness exposures is to educate the jury about the problems with plaintiff’s proofs by addressing the key factual and scientific evidence in a clear and understandable way.
Session 1 - Buckle Up. Emerging Risks Ahead
To play on one of Gandhi's sayings, the future depends on what you KNOW today. The panelists will provide insight into emerging risks in the retail, restaurant and hospitality industries including blockchain, robotics, AI, drones, compliance, NLRB rulings, environmental regulations, and workplace violence. This session will explore how looking into future risks today will help you prepare for tomorrow.Back to top
Session 1 - Rain, Sleet, Hail, Snow: Forecasting Liability and Defenses When Weather Causes Plaintiffs to Go Slip Slidin’ at Restaurant and Retail Establishments
Elizabeth Austin, WeatherExtreme Ltd.
Carly Falgout, Bear Mediation
Charles Stoll, Sedgwick
Louis (Ray) Wood, MarWoodLiability Consultants
Whether or not weather was foreseeable to a restaurant or retail establishment is a common question in premises liability cases. The panel will examine the pros and cons of retaining a weather expert in defending retail and restaurant establishments including what defenses a weather expert can provide, what tools are available to determine whether or not a weather event was foreseeable to these entities, what duties these entities have to patrons as it relates to the foreseeability of weather events, and what measures a restaurant or retail establishment should expect a weather expert to take once retained. The panel will discuss its experiences and insights when handling premises liability matters involving weather incidents and it will provide a tutorial on how to prevent and/or defend these claims.
- Weather experts are routinely retained in cases involving property damage, personal injury, premises liability, products liability, and in other insurance and construction related litigation.
- Forensic meteorologists can offer attorneys, and their clients, accident reconstruction and consultation regarding environmental hazards, and are clearly useful in cases where weather conditions have been asserted as a contributing factor to an accident in which damages were sustained.
- A forensic meteorologist or weather expert may be able to assist with demonstrating why a party’s actions were, or were not, foreseeable, manifestly unreasonable, or otherwise in breach of an acceptable or requisite standard of care.
Session 2 - Effects of Recreational and Medical Marijuana in the Workplace
Kerry Keeney Curtin, Allied World Assurance Company, Ltd.
Tony Lutfi, Maritime Management Company
Barry Moscowitz, Thompson, Coe, Cousins & Irons LLP
Shane Singh, Lewis Brisbois Bisgaard & Smith, LLP
As states across the country continue to legalize both medicinal and recreational marijuana, the question of how to approach employee marijuana use has become more complicated. This is particularly true because while states have become more permissive, marijuana use of any kind remains a federal crime under the Controlled Substances Act.
With the intensive customer interface challenges that employers in the hospitality industry face, maintaining a drug-free workplace is critical. However, in states where marijuana has been legalized, employers must balance that need with respecting employee rights. This is not a concern with recreational marijuana—much like with alcohol, employers are entitled to prohibit employees from using any recreational drugs while at work. However, medical marijuana users with legitimate medical conditions present more of a challenge. This presentation will discuss ways to address this challenge and maintain a safe, drug-free workplace for both employees and customers while still respecting and protecting the medical needs of your employees.
-States across the country are decriminalizing medical marijuana, making its use more prevalent.
-Employers are entitled to maintain a drug-free workplace, but may have to accommodate employees who are prescribed medical marijuana to comply with the Americans with Disabilities Act.
-Employers should enact drug policies that keep marijuana out of the workplace but do not seek to totally prevent employees from using medical marijuana outside of work to treat legitimate medical conditions.
Session 2 - Hospitality and the Emerging IoT Dilemma
Stephen Bissell, Rebar Kelly
Dean Coclin, Digicert
Robert O'Connell, OdysseyRe
Stuart Panensky, FisherBroyles, LLP
Richard Sheridan, Berkley Cyber Risk Solutions
From tremendous advantages to perilous risks, this session will explore the emergence of IoT (Internet of Things) technology in the hospitality industry. The panelists will cover a variety of emerging IoT applications such as predictive maintenance and guestroom automation, and the risks associated with this technology, particularly in the context of data security/privacy liability. The discussion will include a review of key risk management takeaways for optimal IoT implementation.Back to top
Session 2 - Hotel Shuttle Vans - Setting up a Safer Program, Recent Decisions and What Should be Done when the Bad Things Happens
Matt Anderson, Matt Anderson Law PLLC
Brian Chance, ECBM, LP
Robert Kocher, Rimkus Consulting Group, Inc.
Peter VanDyne, Liberty Mutual
For a lot of folks who travel frequently, hotel shuttles are a great way to get from the airport to the hotel. Some hotels even offer to drop people off at attractions or restaurants located within a certain radius of the hotel. This provides a great alternative to taxis, for those who don’t wish to drive in an unfamiliar city. How can a hotel safely manage its shuttle van operation? What needs to be done in the event of an accident? This session will provide you with "need-to-know" information specific to transportation by hotel shuttle van.
-No other risk component mitigates claim costs like having the best possible drivers. Hiring the best driver’s available will often mean the need for a newer and maintained fleet, because quality people expect quality equipment.
-In certain states the law requires drivers carry a CDL or Commercial Drivers’ License, depending on vehicle, but there are exceptions. State law can vary and federal law is also in play, so knowing the intricacies of these laws will help a risk manager or attorney deem if the company is complying with the law.
-The best way to handle the issues tied to an accident is to get in front of it. That means working with your broker, carrier, and various counsels to vet experts before dealing with a serious accident.
Session 2 - Liquor Liability: Accident Investigation, Preservation of Evidence and Loss Prevention
Kenneth Merber, Resnick & Louis, P.C.
Denise Shane, Zurich North America
John Stiff, Stiff, Keith & Garcia, LLC
Jana Taylor, Sheehy Ware Pappas & Grubbs PC
Scott Wessing, Entertainment Risk
The panelists will provide an overview of the liquor liability laws throughout the United States with a focus on the risks faced by restaurants, catering halls, bars and other hospitality providers. The panel will provide some Dos and Don'ts to avoid and/or minimize accidents that may cause these establishments to incur substantial economic losses. The panel will also provide some best practices to be taken following an alleged occurrence including the interviews of claimants, the identification of witnesses, the preparation of accident reports and the preservation of evidence. The discussion will emphasize unique coverage issues related to these claims, additional insured issues and just how critical post-accident investigation, video surveillance and other photographic evidence are to the successful defense of these claims. The benefits of alternative dispute resolution including arbitration and mediation will also be discussed.
-All Businesses and Individuals Involved in the Sale, Distribution and, Service of Alcohol, Including BYOB Establishments and Enterprises That Host but Do Not Actually Serve the Alcoholic Beverages Are Potential Defendants and Targets in Litigation of Those Who Suffered Injuries, Death, Medical Expenses or Property Damage as a Result of the Actions and Omissions of People Who Have Consumed the Alcohol Sold or Served
-Manage Risks – Train Employees How to Act To Prior to Accidents to Avoid Them and What Must Be Done After an Occurrence or Claim, Including How to Investigate Accidents, Prepare Accident/Incident Reports and the Importance of Preserving Evidence.
-Have the Correct Types of Insurance with Appropriate Policy Limits in Place to Safeguard Your Business.
Session 2 - Litigation Hold Letters - How to Properly and Effectively Respond
Katrina Lindsey, Office Depot, Inc.
Lauren McBride, Publix Super Markets, Inc.
Joseph P. Menello, Wicker, Smith, O'Hara, McCoy & Ford, P.A.
Lori Shay, Self Employed
As more and more potential evidence is electronic, the work necessary to respond to litigation hold letters is becoming more and more complex and burdensome. This session will focus on how companies are to respond to litigation hold letters, the steps to be taken to comply, who needs to get involved and the potential pitfalls for not preserving the right evidence. The presenters will discuss their perspectives based on their risk management, claims and legal experience.
-Issue a legal hold that is written and that clearly articulates the preservation process. A written notification serves as a foundation for a defensible fact trail that will make it less likely for opposing counsel to bring spoliation into play.
-Sending a written hold is not sufficient. You must take proactive steps to ensure understanding and compliance on behalf of the custodians. Ensure a means to effectively defend your actions and preservation process. In the case of spoliation motions, a well-understood and consistently applied process will always support the litigant faced with defending their actions as being reasonable and in good faith.
-Preservation and the use of litigation holds continue to be a hot issue in the courts. With this level of notoriety, the courts are unquestionably becoming less tolerant of improper hold implementations. Take appropriate steps early on, including contacting your outside litigation counsel, to ensure proper compliance and steps have been taken.
Session 3 - Cyber Security Bingo - Don’t Get a Blackout!
William Daugherty, Baker & Hostetler LLP
Alex Ricardo, Beazley
Lori Wheeler, Wortham Insurance and Risk Management
Denial of Service Attacks, Social Engineering Fraud, Phishing Scams, Extortion Attempts…all of these are prevalent in our world today. This session will help those in the retail, restaurant and hospitality sector identify the types of risks for their business and how to best combat these risks. The panelists also will address the types of insurance that are appropriate and available.
-Retail, Restaurant and Hospitality providers present extremely tempting targets for identity thieves.
-The most significant trend in 2016 was the emergence of ransomware as a key cyber attack weapon.
-The European Union’s General Data Protection Regulation will take effect in January 2018.
-Cyber Liability is largely data breach insurance but the greatest benefit of carrying Cyber Liability insurance are the vendors who provide services to the insureds.
Session 3 - Discussion of Most Frequent Claims and How to Prevent Them
Francesca Ippolito-Craven, Kubicki Draper
Todd Seiders, Petra Risk Solutions
Allen R. Wolff, Anderson Kill P.C.
Slips, falls, breaks, disruptions. If you are involved in the hospitality industry, you face very real threats to your financial well-being and your reputation. A security breach at your property, a slip by a patron, a defect in construction, or a natural disaster are examples of problems that could and should be addressed by your risk management program and your insurance. In this session panelists will identify and analyze some of the most frequent claims that arise in the hospitality industry and will offer analysis and insight for managing the risk of such claims, mitigating the losses caused by them, and obtaining insurance coverage for them.Back to top
Session 3 - Mitigating Damages Even When Seeking a Defense Verdict
Wayne Apfeld, Fluidra
Kristi Blackwell, Tyson & Mendes LLP
Ray Engler, Best Buy Co., Inc.
Shaun Jackson, Panda Restaurant Group
Is it possible to have your cake and eat it too? In high stakes premises liability litigation, the ideal outcome is a defense verdict. But what happens if liability is lost? Artful and strategic defense methods are essential for avoiding runaway jury verdicts even when the goal is a defense verdict. This panel with expertise in premises liability claims, defense valuations, and high exposure trials will guide an interactive session exploring how to position a large exposure case for success. Participants will learn how to evaluate risk in premises liability matters from the claims stage through jury trial. The topics discussed will include when and why you would stipulate to liability in a multi-million dollar case; how to combat juror anger, sympathy, the Reptile Theory; how to develop defense themes at the claims stage and prior to trial that will minimize chances of a runaway jury verdict; and how to develop defense evidence and arguments to achieve reasonable non-economic damage awards at trial.
Defense counsel must argue damages in high stakes retail, restaurant, and hospitality litigation – even when seeking a defense verdict – to prevent runaway jury verdicts.
Plaintiffs’ attorneys are continuing to develop creative arguments to manipulate juries. These arguments, if not fought properly, have proven highly effective in driving astronomical damage awards.
Defense trial strategies such as accepting responsibility, giving a number, and arguing pain and suffering have proven successful in combating plaintiffs’ arguments and obtaining defense verdicts.
Session 3 - Threading the Needle: Best Practices for Protecting the Franchiser's Brand While Mitigating Risk From EPL Claims
Cynthia Flanagan, Schenck, Price, Smith & King, LLP
Kevin O'Connor, Peckar and Abramson, PC
Edward J. Ryan, Starr Indemnity & Liability Company
This session will address the delicate balancing act that franchisers must engage in to assert some control over the franchiser/franchisee relationship in order to protect the brand, while considering the risks of liability for employment-related claims. Panelists will discuss the current law on joint employer liability and review recent case law involving franchiser liability for discrimination, harassment and wage and hour claims. Speakers will provide best practics for mitigating risk.
Session 3 - Workers' Compensation Challenges for the Retail, Restaurant & Hospitality Industries
Bob Bowman, The Wendy's Company
Veda Mabry, Pacific Sunwear
Rabon Mayes, Extended Stay America
Mark Walls, Safety National Insurance
Workers compensation is usually the largest risk management expense for the retail, restaurant and hospitality industries. In this session, a panel of risk managers will discuss some of their biggest workers compensation challenges and how they are addressing them. Topics include return to work, opioids, marijuana and drug testing, working with vendors, loss prevention, controlling litigation costs and more.Back to top
Session 4 - Additional Ignored? Understanding the Rights and Potential Pitfalls That Come With Being Designated an Additional Insured on an Insurance Policy
Jackie Collins, Arthur J. Gallagher & Co.
Christy Edson, Pacifica Hotels
Marshall Gilinsky, Anderson Kill P.C.
In the hospitality industry, it is common for franchisers, property owners and others to secure insurance coverage by having themselves designated an Additional Insured under another entity’s insurance policy. The availability of Additional Insured insurance coverage may allow policyholders to receive insurance protection for their claims without having to rely upon their own insurance programs, thus avoiding driving up their own insurance premiums. But being named an Additional Insured is not without risk. This session will identify the potential problems involved with seeking coverage as an Additional Insured and provide proven strategies for avoiding the pitfalls of changing claims-made insurance providers, understanding and precluding problems arising out of Other Insurance provisions, the danger of finding different definitions in different policies and making sure you really do constitute an Additional Insured under the Named Insured's policy. This session also will provide practical tips and effective approaches for dealing with the Named Insured and the insurance company in order to maximize the coverage available to you.Back to top
Session 4 - Combating the Reptile Theory Through Deposition Preparation and Motion Practice
Mary Douglas, The Hartford
Cathleen Kelly Rebar, Rebar Kelly
Jeannie Kim, Markel Service, Incorporated
Jessica O'Neill, Markel Service, Incorporated
This session explores the various methods defense attorneys can employ to lessen or even negate the effect of Plaintiff’s counsel's use of the Reptile Theory in depositions and trial. The presenters will discuss effective model answers, deposition preparation, and motion practice to combat the Reptile Theory.Back to top
Session 4 - Getting in Front of Slip and Fall Litigation
Farhad Booeshaghi, Global Engineering Scientific Solutions
Brian Brennan, The Main Street America Insurance
Sean Milano, Morrison Mahoney, LLP
Donald St. Denis, St. Denis & Davey, P.A.
Christopher Stock, Union Standard Insurance Group
This session will explore the different phases crucial to the effective defense of slip and fall claims in a retail setting, including investigation, reconstruction, and evaluation. The session will outline supporting case law, industry standards, and recent trends observed by counsel, experts in the field, and claim managers during the different phases of litigation in these type of cases. Liability factors such as lighting, slip resistance, building codes, and other important elements to consider will be analyzed including ideas on how to defend against liability in the early stages of a case to prevent lengthy and costly litigation. The panelists will discuss practical approaches toward defending slip and fall claims specifically within the retail setting and provide insight as to strategy from the perspective of defense counsel, retained experts, and claim handlers.
-The biomechanics of the human body during a fall and whether the allegations of the claimant corresponds with the physical evidence and medical findings.
-Different scientific tools and technology available for legal and claim professionals to utilize in order to obtain most favorable resolution in slip and fall cases.
-What evidence legal and claim professionals should look for in medical documentation, testing, and investigation of slip and fall cases.
Session 4 - Legal Liability for the Use of Autonomous Vehicles in the Restaurant and Retail Industries
Kevin Blake, Bennett, Bricklin & Saltzburg
Bob Bowman, The Wendy's Company
Jenna Boyce, Marsh
Juan Jose Perez, Perez Morris LLC
This session will address the increasing use of autonomous vehicles in the restaurant and retail industries for such activities as deliveries and picking-up clients. How is the use of autonomous vehicles altering the litigation landscape and potential liability for restaurants and retailers? How will the increasing use of such vehicles affect the business interests of those industries? These questions and more will be addressed in this interactive presentation.
-Impact of current Federal rules and regulations and state law on use of autonomous vehicles in delivery of food and products;
-Anticipating and staying ahead of potential liability and risk management;
-Implications of autonomous vehicles on the business of retail and restaurants.
Session 4 - Retail Risk and the Brand Experience
Tracy Carr, Self Employed
Daniel Flores, Whole Foods Market
Lori Freedman, Wortham Insurance and Risk Management
Customers and employees expect a specific type of brand experience when it comes to retail. If something goes awry during their experience, the customer and the employee might be faced with filing a claim. Their experience with the retailer's brand has just extended beyond the storefront – but what if the retailer isn't the one managing the liability claim? How does a retailer expand the brand to include every aspect of the customer experience, including the claims process – and keep the customer coming back?
This panel will focus on the customer/claimant experience and how the use of a third party vendor can enhance the customer experience in the event of liability through the quick resolution of a claim supported by analytics, the use of gift card programs, and managing public relations.
Employees and the customer are the true steward of any retailer's brand - keeping the brand experience consistent through all interactions is necessary. Learn how at this panel!
Premier Session 2: Technologies Continuing Impact in the Retail, Restaurant and Hospitality Industries
Marsha Bonner, RLJ Lodging Trust
Venkat Kandru, The Howard Hughes Corporation
Kim Sanders, Brinker International
Raymond Zale, NorASIA Consultancy & Advisory
When did we decide that having a high spec HD television in our hotel room was no longer sufficient for our needs? Is it now essential that I.T. allows guests to also control the heating in the room, message the hotel staff and open the curtains?
With every new app, autonomous vehicle, drone, keyless entry or connected device, we shift the goal posts for the-art-of-the-possible and, in turn, we raise customer expectations and elevate company risk(s). Technology for consumers means an easy life and our appetite for this lifestyle is insatiable.
Join us as we discuss how technology is not an option with leaders in the Retail, Restaurant and Hospitality sectors.
Session 5 - Dangerous Curves: Navigating New Employment Law Issues
Regan Katz, Wortham Insurance and Risk Management
Carrie Kurzon, AIG
Nichole Thompson, Travelers
Tracy Wolf, Lewis Brisbois Bisgaard & Smith, LLP
Restaurants have long been a hotbed for EPL claims. Recently, however, a new wave of EPL issues have arisen including ADA demand letters, the changing definition of "retaliation," workplace bullying, overtime rules, wage and hour changes, and updates to healthcare/ACA. This panel will review legal trends in employment issues and discuss current claim trends as well as new coverages available in the hospitality sector.
-Employment Practices Litigation is on the rise- all industries are affected. Timely education for management and employees can help risk managers better mitigate severe settlements and judgments.
-Understanding current case law and pending court decisions will help insurance professionals, claims adjusters and attorneys working in defense of these claims understand the environment in which these claims are being brought.
-Sexual Harassment, Equal Pay/Gender Claims, Wage & Hour are the hot topics right now, along with other topics which are giving rise to state judicial activism. This will prove interesting in the coming year, as the White House Administration and other Federal Government entities weigh in on these issues.
Session 5 - Inhospitable: An Overview of Today’s “Cyber Risk” Landscape
Lindsay Nickle, Lewis Brisbois Bisgaard & Smith, LLP
Robert O'Connell, OdysseyRe
Robert Rosenzweig, Risk Strategies Company
Shiraz Saeed, Arch Insurance Group Inc.
Patrick Thielen, Chubb
This session will provide a present-moment snapshot of the retail, restaurant and hospitality industry’s rapidly-evolving data-breach threat landscape. The conversation will explore various industry-specific breach trends and timeline/discovery trends impacting today’s hotels, restaurants, and retailers. Particular attention will be given to the “POS epidemic” facing hotels and restaurants, a dominant theme in 2017, including an explanation of the leading POS breach methods such as RAM scraping, C2, and backdoor.Back to top
Session 5 - Strategies for a Successful Mediation
Employing the right tools during mediation can support effective case resolution within the target settlement range. Using psychology, negotiation strategies, and case strengths, the presenters will explore the impact on settlement negotiations during mediation.Back to top
No Learning Objectives Available