States Without Motorcycle Helmet Laws May Be Contributing to Unnecessary Deaths

Last year traffic deaths reached their highest level since 1990 due to an increase in motorcycle and pedestrian fatalities. Motorcycle deaths rose for the eighth consecutive year in a row. This according to a new study titled “Characteristics of Motorcycle-Related Hospitalizations: Comparing States with Different Helmet Laws” conducted by researchers at West Virginia University and funded by the Agency for Healthcare Research and Quality.

In fact, the research shows that almost nine percent of all U.S. traffic deaths are attributed to motorcycle riding. In 2004 more than 4,000 people were killed in motorcycle accidents, which represents an 89 percent increase since 1997. Another 76,000 people were injured.

The researchers also discovered that states without universal helmet laws had more crash victims hospitalized with a primary diagnosis of brain injuries. These states reported 16.5 percent of accident victims suffering brain injury as opposed to 11.5 percent in states where helmet use is mandatory. The in-hospital death rate among states without mandatory helmet laws was 11.3 percent versus 8.8 percent for those requiring helmets.

Conducting a state-by-state analysis of injuries, the researchers found that patients from states with no universal helmet laws had a 41 percent increase in risk of a Type 1 traumatic brain injury. Type 1 brain injuries are more likely to result in permanent disability, including paralysis, persistent vegetative state, and severe cognitive deficits.

The research also showed that a large proportion of patients with severe brain injuries would require long-term care. Hospitalized patients in states without universal helmet laws are more likely not to have private health insurance. This means that the public will carry the financial burden for the care these patients require. The findings went on to suggest that partial use laws are of modest use because there is only a slight difference in the age distribution of hospitalized cases if you compare states that require those under a certain age to wear helmets to states with no helmet laws.

Universal helmet laws require all motorcycle riders to wear helmets while riding. States with partial helmet laws only require motorcycle riders who are under age 18 or 21 to wear a helmet while riding. The study is based on data from 33 states. It is the largest study and most current one available on the hospital care of motorcycle accident victims. Of the 33 states studied, 17 had universal helmet laws, 13 had partial use laws, and 3 had no helmet laws.

Show No Disparity When Dealing with an Aging Workforce

When employers think diversity, most think in terms of sociological factors such race or religion. But there is another type of diversity that’s becoming increasingly more prevalent in today’s workforce and that is age diversity. As Baby Boomers continue to work well past normal retirement age, the phenomenon will become more widespread.

Having the wisdom and experience of a graying workforce population comes with a price. Under the ADEA, it is unlawful to discriminate against a person because of age with regard to any term, condition, or privilege of employment, including, but not limited to, hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training.

This aging law was given a new lease on life with a recent Supreme Court decision. In the landmark case of Smith et al. v. City of Jackson, Mississippi, No. 03-1160, a divided Court, by 5-to-3, held that the ADEA authorizes disparate impact claims. The doctrine of disparate impact means that even where an employer is not motivated by discriminatory intent, Title VII prohibits an employer from using a seemingly neutral employment practice that has an unjustified adverse impact on members of a protected class. Of course, employees 40 and older are a protected class. The real Pandora’s Box that was opened by this decision actually lies in the nature of the disparate impact suit itself because unlike disparate treatment claims, disparate impact claims don’t require proof of discriminatory intent. Their emphasis is on whether or not a company’s policies and practices adversely affect a protected group. The claimants must have substantive proof that the disparate impact exists; they cannot just allege that there is the possibility that there may be a disparate impact resulting from the policy or practice. The downside here is that even though there may have been no discriminatory intent on the employer’s part, the fact that the disparate impact exists makes that employer legally liable.

What should employers be doing as a result of this heightened employment practices liability? The first response should be to review benefits, compensation and employment policies and practices to determine if there is any disparate impact on older workers. You will also need to perform a statistical analysis to prove the inaccuracies in the data of any potential claimant. A current statistical analysis will also evaluate whether there is the potential for disparate impact on older workers from a particular workplace policy or procedure in the future.

The next step you need to take is to talk to your agent about Employment Practices Liability Insurance (EPLI). Most comprehensive general liability policies exclude employment-related claims. Although a directors and officer’s policy may offer some form of protection, it won’t cover the business entity itself. Other forms of insurance, such as fiduciary liability coverage, usually want cover these types of claims either.

What an EPLI policy does is provide coverage for the cost of defending against and/or settling various types of claims, including discrimination, sexual harassment and wrongful termination. The majority of EPLI policies require the insurer to defend an employer against covered claims. The insurance company usually has the right to select the defense counsel. EPLI insurers typically have pre-approved, panel counsel hired to defend their clients. The cost of defense lessens the amount for settlement, so having an EPLI policy will actually encourage out of court settlements.

Research Shows Side Air Bags Can Save Lives

In a recent study, The Insurance Institute for Highway Safety estimated that side air bags offering head protection could save the lives of about 2,000 drivers a year if every vehicle were properly equipped. The study was based on federal crash data involving 1997-2004 model year cars involved in crashes from 1999-2004 and 2001-2004 SUVs involved in crashes from 2000-2004.

The agency’s conclusion is based on insurance industry research that shows driver deaths in side-impact collisions dropped by more than 50 percent in SUVs equipped with head-protecting side air bags. The study also found that the risk of death dropped 30 percent in side collisions involving SUVs with side air bags that only offer protection to the chest and abdomen.

In passenger cars struck on the driver’s side, the risk of the driver being killed dropped 37 percent in autos with side air bags that have head protection. The risk of driver death fell 26 percent for cars with side air bags providing just chest and abdomen protection. The researchers discovered that fatality risks were lower across the board in vehicles with side air bags, whether the crash involved older or younger drivers, male or female drivers, and drivers of compact cars or larger passenger vehicles.

The side air bag was introduced in the mid-1990s, and has been credited for allowing motorists to escape serious injuries and death when struck in the side. In a head-on crash, the vehicle’s front-end absorbs most of the impact. However, a motorist struck in the side has very little protection without the side air bags.

Side-impact crashes are a major concern. In 2004, the government estimated that 9,270 people were killed in these types of crashes, which amounted to almost 30 percent of traffic deaths reported that year.

Although federal regulations don’t require side airbags in passenger vehicles, more and more manufacturers are installing them as standard equipment. This is due primarily to a 2003 voluntary agreement among automakers to improve occupant protection in side impacts for SUVs and pickups. The agreement is supposed to result in all cars, SUVs, and pickups having side airbags with head protection by 2010.

The auto industry has been keeping pace, and almost four of every five new car and SUV models already have standard or optional side airbags that include head protection. This is a significant increase since side airbags were introduced in the mid-1990s. If you would like model-by-model information on side airbag availability in 1996-2006 models, log on to side_airbags/side_airbags.aspx.

Risk Management Provider Reveals Data Concerning Top Construction Defects

The 10-year housing and real estate boom in this country has been a double-edged sword for the construction industry. While the top 100 U.S. homebuilders were reported to have sold an estimated 1,000 new homes a day in 2002, such performance isn’t without a downside.

In the January 2004 issue, Consumer Reports noted that approximately 15 percent of all new homes built each year have serious problems. They place this startling statistic right at the doorstep of the building boom. The construction industry has been bombarded from all sides because of this phenomenon. Building defects have resulted in lawsuits costing the industry millions of dollars, general liability insurance costs are rising, and increasingly knowledgeable consumers are more critical of the finished product and more likely to sue.

On the heels of all of this, comes a survey of quality assurance data tabulated for the construction industry that proves leading construction defects are mostly the result of failure to follow building code requirements or installation instructions. And as if to add insult to injury, the survey goes on to show most of these defects are preventable.  The survey completed by Quality Built, a provider in risk management and quality assurance services, used data gathered by their field inspectors during inspections of 31,995 completed homes and condominiums across 27 U.S. states for the 12-month period ending Oct. 1, 2005.

Single-family homes averaged $5,398 in corrected defects per home while multi-family homes and mixed commercial use construction averaged $4,556 in corrected defects. The survey also identified the leading risk items for each housing type. With regards to single-family housing, the top defects included:

  • Building paper and house wrap installation flaws
  • Improper framing around windows and doors
  • Missing structural straps and connectors

Multi-family and mixed commercial use construction were most frequently cited for:

  • Unprotected penetrations in life-safety assemblies
  • Missing fire-rated materials at electrical device boxes

None of these defects are visible to a homeowner or building owner upon completion, but can lead to serious consequences and legal battles down the road. However, all of them can be easily corrected during construction if identified early through a quality assurance inspection.

Construction firms should take the following precautions to prevent a defect lawsuit:

  • Hire a lawyer to get your contracts tightened up.
  • Include Right-to-Cure, mediation and arbitration clauses as stopgap measures to prevent lawsuits.
  • Find a set of national construction standards that you back and include them up front in your contract.
  • Spend time going over the contract with the potential home buyer before they sign to make sure they understand what they’re signing, and agree to the construction standards you’ve specified. If your attorney agrees, consider allowing clients three days to review the contract before signing, or three days after signing to cancel the deal.
  • Create a small fact sheet or brochure for your clients that remind them of the key points of the contract – that you have the right to be notified first and granted the opportunity to fix the problem, the acceptable method for repair (included in the construction standards), and that mediation and arbitration are the next opportunities to resolve the issue prior to a lawsuit.

Is Your Homeowner’s Coverage a Mystery to You?

If you feel in a quandary when you look at your homeowner’s insurance, take heart; you are not alone. In fact, a recent study conducted by Harris Interactive for Travelers Insurance shows that a large number of American homeowners are unsure of their coverage specifics. Many of these homeowners are underinsured and the smallest disaster could send them into a financial hardship.

The researchers questioned more than 1,300 homeowners to determine exactly what they knew about their coverage. They also asked the study participants how often they reviewed their policy to ensure they maintained appropriate coverage and how they conducted their review.  According to the survey data, more than 44 percent of those surveyed had not examined their insurance coverage in the past year. Some respondents had not reviewed their insurance policy in the last 10 years.

The “Travelers In-synch Homeowner’s Insurance Study” also indicated that nearly 27 percent of these homeowners weren’t sure whether their policy would cover the cost of rebuilding their home. Thirty-six percent didn’t know whether their policy would cover damage caused by a hurricane. Forty-two percent were unsure if they had earthquake coverage. Twenty-six percent didn’t know if they had coverage against flood damage, and 37 percent didn’t know whether their policy would cover a prolonged hotel stay if their home were damaged.

Many items impact the amount of homeowner’s coverage you need. That’s why it is important to review your coverage frequently. Here are some criteria to use in your review:


  • Have you recently remodeled your home?

If you’ve improved your home, chances are you’ve increased its estimated replacement cost.



  • Has the inflation rate increased since your home was last appraised?

Certain conditions, such as severe weather, can increase the demand for labor and materials, which raises costs beyond the normal inflation level. It is important to update your coverage each year to account for changing inflation.



  • What factors influence building costs in your area?

Replacement costs are directly proportionate to factors, such as the availability of labor, the current demand for labor, and the cost of construction materials. Adjusting your coverage regularly can ensure your policy will provide the money you need to rebuild.


To determine whether you have adequate coverage you should know your home’s estimated replacement cost. Keep in mind that your replacement cost could be higher or lower than your home’s market value. You should also consider the building materials used to construct your home. The more difficult the building materials are to find, the higher your replacement cost. Your coverage needs to reflect these increased costs.

The best way to stay ahead of changing costs is to contact your insurance agent annually to discuss your current coverage and your changing needs. They can help you manage risk by updating your coverage so there won’t be any surprises should your home be damaged.

Most Companies View Employment Liability Claims Through Rose Colored Glasses

“It will never happen to me” is a multi-purpose rationale people use to avoid doing what they know they should, especially when it is difficult or requires extra effort. Interestingly this rationale also applies to small and medium-sized businesses wanting to avoid the issue of employment practices liability (EPL).

Research proves there is no reason for employers to adopt such a rosy outlook. According to November 2005 figures from Jury Verdict Research, the average compensatory jury award for employment practices liability lawsuits has risen by an annual average of almost 5 percent. The average amount for these awards in 1998 was $164,200, which rose to $218,133 in 2004. A significant factor in this trend has been the U.S. Equal Employment Opportunity Commission’s aggressive approach in prosecuting offenders. The agency obtained an unprecedented $168.1 million in awards in 2004.

Jury Verdict Research went on to note that since 1998 the most frequently targeted businesses are retail and service companies. Although these lawsuits outnumbered those brought against manufacturing and industrial companies by more than three to one, the average awards against manufacturing and industrial companies were far higher. Awards in manufacturing and industrial company suits averaged $250,000, as compared with $137,853 for retail and service companies.

With statistics such as these, why would any business risk liability when it comes to employment practices? Specialty insurer Beazley commissioned research to find the answer to that question. What they discovered was that many small and mid-sized businesses have developed a sense of prosecutorial immunity from the media’s bias toward reporting only awards against Fortune 500 corporations. This reinforces the impression that EPL claims are only a problem for large companies that maintain public visibility.

What should a small company do to protect itself from EPL claims? Start by reducing your exposure with a comprehensive employment practices program. Your program should not only spell out company policy, but must be specific in terms of the consequences for violating that policy. The next step you need to undertake is to protect your company’s financial assets. You can transfer this risk by purchasing Employment Practices Liability Insurance. While sound employment practices and well-trained managers can help reduce the risk of EPL suits, if an employee feels they have been unfairly treated, they can take legal action at the drop of a hat. For this reason you should consider the financial protection an EPLI policy provides.

Your Driving Record and How It Effects Your Premium

Your insurance company has the right to review your driving record at any time.  Typically, they’ll review your record when you apply for coverage, request changes to your policy, add a vehicle, or renew your policy.  This is to evaluate your risk potential, or determine if you are insurable at all.

Generally, what the insurance company will analyze is the number of points on your license.  When found guilty of a traffic violation (moving violations, parking tickets, at-fault accidents, etc.) you are assigned a certain number of points on your license. The more points you accumulate, the worse your record. The points on your driving record may or may not affect your insurance rate since each company has their own way of evaluating violations.

Insurers typically evaluate your points using their own system to determine the amount of your rate increase (if your rates increase at all).  Most companies, however, use the Safe Driver Insurance Plan, which lists the different types of violations and assigns a points value to each one, based on the severity of the incident.  Under this plan, as you accumulate points, your rates are subject to increase.

Your driving record isn’t the only information your insurer can use to underwrite your policy.  Insurers also use credit scores to determine rates. If you have a good credit score, your rates are likely to be lower than someone with a bad credit score. Insurance underwriters perceive a direct relationship between your credit score and the chances of you filing a claim. Someone with a history of being late on bill payments and who often opens and closes savings or credit accounts wouldn’t be viewed as a good insurance risk.

Median Employment Lawsuit Damages Continue to Rise

According to the 2005 edition of Employment Practice Liability:  Jury Awards Trends and Statistics, damages awarded for employment-related lawsuits were approximately 20 percent higher in 2004 than the year before.  While actual damages rose, the percentage of plaintiffs winning their cases dropped slightly.

For 2004 the median jury award for employment-related lawsuits was $218,133, compared to $182,131 for 2003.  The probability of a plaintiff winning their case continued to decline at 63 percent and has decreased seven points since hitting 70 percent in 2002.

Most awards were in the $100,000-to-$249,000 range (22 percent) and $250,000-to-$499,000 range (17 percent), according to the report.

A breakout of the various types of employment-related cases along with median awards follows:

Employment-Related Lawsuits



 Median Award


 $          270,000

Discrimination (Overall)

 $          187,583


 $          262,405


 $          211,272


 $          186,250


 $          138,880


 $          101,563

Retaliation (Overall)

 $          140,000

Wrongful Termination

 $          125,880


Source:  Employment Practice Liability:  Jury Awards Trends and Statistics, 2005, Jury Verdict Research, Horsham, Pa.

Trucks and Minivans Provide Greatest Threat of Back-Over Injuries to Children

The University of Utah completed a study that revealed some startling results about the likelihood of children being struck by a truck or minivan backing out of a driveway. Researchers found that children are 2.4 times more likely to be struck by a van and 53% more likely to be hit by a truck than by a car. The study also found that children hit by trucks or minivans are more likely to require hospitalization, surgery, and treatment in an intensive care unit than children backed over by cars.

The research was conducted using medical records and police reports that provided back-over injury data for Utah children under age 10 from 1998 to 2003. The number of state-registered vehicles was used to determine if injuries were more common among certain types of vehicles. The researchers further discovered that driveway back-over injuries represent an incidence of 7.09 per 100,000 children younger than 10 years old annually. Passenger cars account for only 1.62 injuries per 100,000 registered vehicles.  Previous reports have suggested that trucks and minivans produce a large rear blind spot, which makes them especially susceptible to this type of accident. However, this is the first study in the United States that has attempted to document the rate of injury by these vehicles.

The researchers emphasized the importance of educating parents and young children about the rules for safe play in driveways. They commented on the availability of rear cameras and sensors to warn a driver that a child or other obstacle is behind a vehicle. However, the study noted that there is no substitute for walking behind, or at least looking behind your vehicle before putting the car in reverse.

The federal government has also been working on this problem. Legislation pending in Congress would require the National Highway Traffic Safety Administration (NHTSA) to set a standard for rear visibility that all vehicles must meet. Larger rear-view mirrors, rear sensors that sound a warning beep or cameras are among the options.

NHTSA expects to complete work on a study on the various types of back-over technology within a couple of months. The purpose of the study is to examine how effective the systems are and how they are used by drivers. The information will then be used to establish a standard.