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HomeMy WebLinkAbout11-Risk Management CITY OF SAN BERN~RDINO - REQUEST F,~R COUNCIL ACTI~,N From: John C. Kirwan Subject: Disposition of Cases Filed Against the City Dept: Risk Management Date: June 16, 1985 Synopsis of Previous Council action: At the meeting of the Mayor and Common Council held June 6, 19S8, the disposition of cases filed against the City in the last five years was continued to Monday, June 20, 1988 at 10:30 a.m. Recommended motion: MOTION NO.1 That a Claims Committee be established comprised of the City Administrator, City Attorney and the Director of Risk Management. MOTION NO. 2 That the City Attorney be instructed to prepare the appropriate amendment to Chapter 3 of the Municipal Code Section 3.16.050 to raise the claim settlement authority for the City Administrator to $10,000 and that upon a unanimous vote of the Claims Committee, an amount not to exceed $20,000 be granted to the City Administrator as additional claims settlement authority. joLe. ~ Contact person: John C. Kirwan Phone: 5308 Supporting data attached: Yes Ward: FUNDING REQUIREMENTS: Amount: Source: (Acct. No.) (Acct. DescriDtion) Finance: Council Notes: 75-0262 Agenda Item No II o CITY OF SAN BERNARDINO - o REQUEST FOR COUNCIL ACTION STAFF REPORT REVIEW OF CITY'S LIABILITY CLAIMS OBJECTIVE: To review the City's liability claims record for frequency and severity. To review reserve adequacy. To review claims handling procedures. To review settlement authority levels. FINDINGS: City governments, like most public entities and large private employers, are frequent target defendants when the active tort feasor 1S uninsured, under insured, or just unlikely to respond to a judgment. We are also a target ployers, we are more publicity. when, like large private em- in the public's mind because of These kinds of claims are often frivolous and, when the true facts are known, are shown to be without merit or to be fraudulent. The U.S. Chamber of Commerce says that 10% of all claims are fraudulent. And 15 to 25% of all costs go to fraudulent claims. Unfortunately, the cost of investigation and defense of nonmeritorious claims is high. It is a false economy to settle the otherwise defensible claim or to meet an outrageous demand, since the gratuitous payments merely encourage the public and plaintiff's bar to file future claims against the entity recognized as unwilling or unlikely to offer a vigorous defense. Conversely, it is not cost-effective to spend invest- igation or legal resources on claims where liability is clear or on claims which will most probably result in an adverse judgment. Once liability is esta- blished, the claim should be quickly evaluated and a fair and reasonable settlement negotiated. The function of claims administration is to rapidly determine the scope of activities needed for defense or the effort to be directed towards settlement. In addition to controlling claim costs through aggres- sive investigation and negotiations, the claims 1 7"i.O::tli.4 o o adjuster should also be responsible for controlling claims adjustment expenses. We are operating in the throws of a "lawsuit crisis" in California at this time. Consider this, the cases filed in state courts, where more than 98% of all civil suits are heard, has grown at least four times as fast as the increase in population. In 1961 only 270 civil rights suits were filed against municipalities while in 1981 the number rose to 13,534. Million dollar verdicts have commonly been used as an index to measure the excesses of the legal system. Today this level of verdict is being awarded with a very high rate of frequency. For example, in 1980 there were 134 verdicts of $1 million or more. In 1985 there were 488 verdicts in lawsuits awarding $l million or more to the plaintiff. That is a 264% increase in the number of million dollar verdicts in only 5 years. San Bernardino County ranks 13th on the state's litigation rate index for counties. The number of liability claims filed against the city for the last 3 months is: March April May Total 29 32 17 78 During the same time period, we closed 60 cases totaling $47,050.95 in costs. We currently have 340 open claims with $4,565,962.98 showing in reserves. with assistance of the City Attorney's Office, we have begun reviewing all cases and have currently identified some 45 cases where additional reserves seem reasonable. These are being input to the computer now; and initial estimates are that when the review is completed, we will have reserves totaling around $5.5 million. In '1977 liability claims records were computerized with our workers' compensation claims administrator , Fleming and Associates. All existing claims plus open claims back to 1972 were entered; since that time to the present, all liability claims and costs have been entered on the system with varying degrees of accuracy as personnel have come and gone. Based on what is there, exhibit packets, A, Band C were prepared. Manually sorted information off current 2 o 0 loss runs was input into a Lotus 1,2,3, program to produce some comparisons. (Please note: The Lotus 1,2,3 graphics program automatically selects the vertical axis value for each graph: therefore, it varies on each graph.) CONCLUSIONS/RECOMMENDATIONS: Professional staffing seems adequate with one experienced adjuster. Clerical support requires one full time person at this time. This would track with the way workers' compensation is structured as well. Claims handling procedures would be greatly enhanced with two significant changes. First, the implementation of a claims committee the City Administrator, the City Attorney and Director of Risk Management as its members. function of the Committee would be: with the The 1) To review all serious claims. 2) To approve all settlements above SlO,OOO.OO and up to S20,000.00. 3) To discuss perceived procedures and trends with department heads. 4) To serve as a communications forum for Risk Management, City Attorney, Administration and all Department Heads. Second, to increase the settlement authority as follows: SlO,OOO authority to the Risk Manager. SlO,OOO additional authority to the Claims Committee. S All claims settlements over S20,000 approved by Council. The Government Codes allow the elected governing body to delegate authority to settle claims up to S20,000. The City currently has delegated a settlement authority of S2,000 under ordinance 3.16.050. A survey of 15 cities and 2 counties shows only 1 public entity with an authority less than ours. All the rest have more. The average is S20,000. Complete computerization is a must pursuant to participation in a pooling arrangement like BICEP, for reducing claims costs and expenses and to address reserve adequacy. Exhibit Packet "0" details what the Governmental Accounting Standards Board will be requiring public agencies to do and is reasonably 3 o o self explanatory. However, our current reserves do not take into account any IBNR (incurred but nor reported) losses. GSAB also does not address the issues of reserve discounting or funding. We as a public entity will probably be held accountable for the same standards FASB implements for private insur- ance carriers. with the continued support from all departments, which to date has been excellent, Risk Management should be able, with the implementation of the sug- gested changes, to reduce the frequency and severity of claims and successfully conserve the assets of the City. Respectfully submitted, .~ . ohn C. Kirwan Director of Risk Management JK/sf 4 o o EXHIBIT PACKET "A" This exhibit shows the total number of claims filed against the City - those closed to date and - those open to date, by fiscal year. As the graph indicates, 1986 was a bad year for frequency of claims in total. EXHIBIT PACKET "B" This exhibit shows the total number of liability claims filed against the City for the last lO years, broken down by general and automobile claims. The second graph shows the dollar costs allocated to such claims for the same period. Note that the frequency trends do not always track the severity trends, in that 1978 - 1982 shows a steady growth in frequency, while costs were up slightly in 79 and big in 82. Also keep in mind, that as we move forward in time, costs become more of a guess than a fact in that we move from fixed known costs of closed cases to reserved open ones. EXHIBIT PACKET "C" This exhibit shows the frequency of liability claims by auto and general for some of the departments for the last 5 years. This packet is presented on Iv for example, to illustrate what can be accomplished with full computerizaton of the liability claims function. This was a very difficult manual task. Our managers and supervisors need management tools that reveal trends and highlight problem areas necessitating attention. Again, note that the computer selects the vertical axis value, so that it varies by department. Also note, the City Council graph represents the claims that are not directly attributable to a specific department, but rather those that are encompassing as a city. In 1986 this type of claim represented 12% of the total number of claims filed. Engineering and Parks, Recreation and Community Services show excellent downward trends. Police claims represent about 20% of the total number of claims each year. Refuse shows a good decline in frequency as well. The City has almost 600 motorized vehicles. The following is an approximation of the breakdown by the 6 largest departments: 5 o Public Services Police Department Parks, Recreation & Community Services Fire Department Engineering Public Buildings 175 105 50 40 25 25 Total 420 When you compare the number of vehicles and hours of exposure to the total number of frequency measure) the results are pretty much 6 o corresponding accidents (a as expected. man- true o , o -EXHIBIT "A" o o \ CLAIMS ABAINST CITY DURIN8 FIVE YEAR PERIOD ............................................................... YEAR 83 .. as 86 87 TOTAL ............................................................... CLOSED 247 228 190 168 49 879 OPEN 32 lS 39 122 103 311 --------------------------------------------------------------- TOTAL 279 243 229 287 1152 1190 ~ o NOS. or CLAIMS 0 o I a I Iii i i i i 5 i i i I I 0 . . i f r 0 ~ - IE: lei) + !~ . II . f~ -z I~ 00 - <> -i -< j . IS t o o EXHIBIT "B" . , o o CLAIMS ABAINST CITY DURINe TEN YEAR PERIOD ...........................................................**...... YEAR CLAIM TYPE 78 79 80 81 82 83 84 as 86 87 TOTAL ............................**.............................**.**... BENERAL 144 160 169 23S 224 220 208 187 211 llS 1873 AUTO 58 65 83 60 7S 59 3S 42 76 37 S90 ------------------------------------------------------------------- TOTAL 202 22S 2152 29S 299 279 243 229 287 1S2 2463 o NOS. or CLAIMS 0 - .. .. .. .. N i i N I I I . I I 8 I a I I 8 I it ~. , . 0 ~ , I I . 0 ~ . - - !~ lei) +e .. ;;I~ sC) I~ I- I~ I . 0 - r -i <> -< -i I ~ . !S .... 0 DOL.&.A. 0 1 (MIllon.) 0 P 0 0 0 0 0 0 0 - - - - - - - . . . . . . . . . N . . . . . . - N III . .. . ~ . Ie - - III . .. . ~ it D ~ III I I 0 r- ~ - . I~ - +f = I~ I- 1-1 10 IS 0:::0 0 r - <> -t ~ i I ~ . t: ~ . o - - o EXHIBIT "C" - 1._ .. lle. ~ at c Ii) ... Z 1"'1 lD ~ r )> c ~ - Z +~ - (/) -t .lD lJ :::0 a )> -t - 0 z <> -t .. 0 ~ at ,.. o o NOS. or CLAIMS o N '" ell ~ - I: .. ~ , . o NOS. or CLAIMS 0 o N '" ~ ell at 0 Ii) 1"'1 Z 1"'1 ~ r )> z - ~ )> +~ r- () .- lJ 0 a z -t AJ 0 r- <> a I ~ - I: .. ~ . o NOS. 0,. CLAIMS 0 o N III .. at .... 0 ~ ~ . r m c - r- 0 - Z +~ C) ~ .- lJ a (/) )> ." r1 -I <> ~ ... I ~ ~ ~ - I ~ ~ .." . o Ii) ... z ... . r +e .- I a <> a I ~ ~ o o NOS. or CLAIMS o .. .. o .. ell I III o fit at fJ ~ III ell () - -t ~ () o c z o - r- b~"-- . - _ L. . - N III ~ .. . .... . , r: ," .> D \ . '" : . , . ~ r o NOS. or CLAIMS 0 P1 r- P1 +e 0 -t .- . ::a - a 0 )> i r- <> i I ~ !!S o . . . r - .1 - - - -- - I ..., z C) - ~ +e z ..., .- P1 . I , a :::0. - Z ~ C) : <> , I o NOS. or CLAIMS 0 o - o I " a a !S " . o III " . +e .- I ~ <> j I 1 iIlIII JIIJ ~ o o NOS. or CLAIMS ~ .. .. .. ... . - N III . .. . .... . Ie 0 - N III . . . I I ~ - . I . \ r . ! ." - :::0 ,., 'I IS ....,.. - - ~ f 0 I I : . r "'U )> :::0 " V>> SIP . +e ':;0 .- P1 J I . ~ 0 :::0 f"1 ~ -t r - 0 <> Z j I - - o o NOS. or CLAIMS ............--.........N -NIlI..........O-NIlI.........O- r: t: I , t D III . . r +e .- II I <> J I .L. LL o NOS. or CLAIMS 0 . - o N o = . a I I t: ~ " ~. , . . : " o ,.. - o P1 l . , ... - o HOS, or CLMIS 0 .. ... .. .. .. .. .. .. o - N III . .. . .... . . 0 -N III . .. . ~ rs D " t iii ( . r "'0 a C to . r- . - 0 I +e to .- . C - I r- 0 - Z C) eI) <> , . !S .. o NOS. or CLAIMS 0 ::a +e 1"1 I .... .- C I ~ I eI) IT1 . , j . <> ~ . !S ..,. D I ~ r +e I- I <> i ~ 41 - - ~ 4. JI:1.. . o NOS. OfT CLAIMS 0 o .. o J -= I ~ a I I . !S I . f . eI) -t ~ ,.. ,.. -t (/) . . . o o EXHIBIT "D" - - J , o o RESERVES AND SASB THE BDVERl\IIlENTAL ACCOUNTINS STANDARDS BOARD WAS CREATED IN 19M TO ESTABLISH FINANCIAL ACCOUNTINS AND REPORTING STANDARDS FOR STATE AND LOCAL 8OVERNENTS. IT IS UNDER THE SAME PARENT ORaANlZATION AS THE FINANCIAL ACCOUNTING STANDARDS BOARD(FASB) AND TIE PRONOUNCEMENTS THAT ARE IBSUED BY TIE BOARD ARE BENERALL Y ACCEPTED BY THE ACCOUNTING PROFESSION UNDER THE RULES OF CONDUCT ISSUED BY THE AICPA. THE RISK MANAGEMENT AND INSURANCE ISSUES PROJECT WAS ADDED TO THE BOARD'S AJENDA IN OCTOBER OF 1986, IN RESPONSE TO TIE INSURANCE CRISIS THAT SO MANY PUBLIC ENTITIES WERE FACING AT THAT TIME. A DISCUSSION MEMORANDUM WAS ISSUED BY SASB LATE IN 1987, WITH RESPONSES DlE BY THE END OF DECEMBER OF 1987. THE ISSUES WERE BROKEN INTO TWO CATEGORIES. THE FIRST WAS THOSE ISSUES RELATED SPECIFICALLY TO PUBLIC ENTITY RISK POOLS AND THE SECOND WAS ISSUES RELATED TO ENTITIES OTHER THAN POOLS. THE FIRST ISSUE FOR POOLS HAD TO DO WITH THE APPLICA- BILITY OF FASB STATEMENT 60 TO PUBLIC ENTITY RISK POOLS. FASB STATEMENT 60 ESTABLISHES GENERALLY ACCEPTED ACCOUNTING AND REPORTING PRINCIPALS FOR COMMERCIAL INSURANCE ENTERPRISES AND THE QUESTION IS WHETHER OR NOT THOSE PRINCIPALS SHOULD BE EXTENDED TO THE PUBLIC SECTOR. THE BOARD'S CONCLUSION WAS THAT IF THERE IS ANY TRANSFER OF RISK TO THE POOL OR ANY RISK -- .. . o o , SHARING, THEN FASB STATEMENT 60 SHOULD APPLY. ESSENTIALLY THESE POOLS ARE PERFORMING MANY OF THE SAME FUNCTIONS THAT ARE PERFORMED BY COMMERCIAL INSURERS, AND THEREFORE IT MAKES THE MOST SENSE TO HAVE THESE TRANSACTIONS AND THEIR ACTIVITIES ACCOUNTED FOR AND REPORTED IN A MANNER THAT IS COMPARABLE TO THE WAY COMMERCIAL INSURERS REPORT. THE BOARD LOOKED AT A NUMBER OF POTENTIAL DEPARTURES FROM FASB STATE- MENT 60 MAINLY IN THE AREAS OF INVESTMENT VALUATION, THE REPORTING OF UNREALIZED INVESTMENT GAINS AND LOSSES, THE ACCOUNTING FOR ASSETS ACCUMULATED IN ANTICIPATION OF FUTURE CATASTROPHE LOSSES, AND THE DISCOUNTING OF CLAIM LIABILITIES. ESSENTIALLY THE BOARD DECIDED THAT DEPARTURES IN THESE AREAS WERE NOT APPROPRIATE, AND THAT THE ACCOUNTING PRESCRIBED BY FASB STATEMENT 60 SHOULD APPLY. THE ISSUES FOR INDIVIDUAL ENTITIES OTHER THAN POOLS ARE NUMEROUS. ONE OF THE BASIC QUESTIONS EXAMINED BY THE BOARD WAS THE APPROPRIATE METHOD FOR REC08NIZING CLAIM LIABILITIES AND THE RELATED EXPENDITURES IN GOVERNMENTAL FUNDS. THE CONCLUSION OF THE BOARD WAS THAT FASB STATEMENT S SHOULD APPLY. FASB STATEMENT 5 SAYS THAT IF IT IS PROBABLE THAT A LIABILITY HAS BEEN INCURRED OR AN ASSET HAS BEEN IMPAIRED, THEN THE AMOUNT OF THE LOSS SHOULD BE RECORDED IN THE FINANCIAL STATEMENT AT THE TIME THAT THE LOSS OCCURS AND THE AMOUNT OF THE LOSS CAN BE REASONABLY ESTIMATED. WHAT THIS CONCLUSION IS SAYING IS THAT WE CAN NO LONGER CARRY ONLY THE EXPECTED PAYOUTS FOR NEXT YEARS LOSSES ON OUR GENERAL FUND , o o " _a. STATEMENTS, BUT RATHER THE ENTIRE ESTIMATED AMOUNT OF LOSS WHEN THE LOSS OCCURS. THIS PUTS A REAL EMPHASIS ON RESERVE ___f, ESTIMATES. A PROBLEM FOR MANY PUBLIC ENTITIES IS THAT THERE IS THIS HUGE LIABILITY THAT HAS BEEN SITTING IN LIMBO AND IT MUST NOW APPEAR ON THEIR STATEMENT WHICH WILL SURELY CREATE A . GENERAL FUND DEFICIT. A LONG TERM LIABILITY IS BEING BROUGHT INTO FUNDS THAT HAVE PREVIOUSLY ONLY DEALT WITH CURRENT ASSETS AND CURRENT LIABILITIES. _.. ~. " -~~. ~,