Defending public servants who defend us--

Rockwood forms subsidiary to cover individual police, firefighters and EMTs

By Bob Bloss

It is a comfort to know that our communities' firefighters, police officers, and other emergency responders are constantly at the ready to assist and protect us even though we have a tendency to take them for granted.

Who stands up for these public servants when their honor and their careers need to be defended? Until recently there was not much in the way of organized legal protection for them. Over the last 18 months, the Rockwood family of companies formed the Public Servants Defense Agency. Its motto: "Protecting the careers of the professionals who protect us."

A subsidiary of Rockwood, PSDA was founded to serve the unique needs of police, firefighters and EMTs accused of negligent acts or omissions while on duty. Even if the accusations are groundless, public employees are provided with an aggressive defense.

Glenn W. Clark, CPCU, president of Public Servants Defense Agency, reviews the agency's formation.

"In 2009, Rockwood purchased Wright USA which has provided legal protection to federal government employees for 45 years, successfully defending CIA, FBI, TSA, State Department and other federal bureau members. Subsequently we were invited to offer consulting services using a similar concept for state and local police. We found that state and local attempts to address the needs of their public servants were significantly inferior to the basic Wright USA policy that was available to covered federal employees.

"To our surprise, we found that no insurance entity existed to specifically protect the careers of non-federal public servants against lawsuits. While the public entity may be protected via insurance, often the public entity's next action is to engage in administrative or criminal actions and even allow civil suits against their very own employees. A business buys E&O to protect its assets. A public employee should have the same ability to protect their most valuable working asset (their career performance record, pension, reputation, etc.). It was clear to us that there was a need to create a program to protect public entity employees from internal allegations of wrongdoing from those in positions of authority. There are also times when the insurance coverage for a municipality or police department does not include the individual officer, firefighter or EMT. When gaps in coverage leave our insureds bare, the PSDA program is designed to respond and provide a voice and representation to those individual officers that risk everything and then are sometimes left to fend for themselves."

Clark continues, "It is important to note that we found no other program that provided a full insurance response to the exposures threatening the careers of police, firefighters and EMTs. While we did find some limited reimbursement plans, they were very limited in scope. Now, PSDA meets that need."

The legal exposures faced by police officers include administrative hearings, criminal proceedings and even civil suits (slander or defamation; arrest detentions; domestic incident interventions; emergency vehicle operation errors). Criminal exposures arise from accusations of excessive use of force; acting outside the scope of normal duties or failure to heed general orders resulting in a citizen's injury. Administrative hearings can result in disciplinary actions against the employees as well. An administrative hearing can be called for any number of reasons including: failure to adequately train subordinates; negligent hiring, entrustment, and virtually any type of employment-related exposure (sexual harassment, discrimination, wrongful termination).

Emergency medical and firefighter personnel also often face similar legal exposures. A long list includes: patient care malpractice and negligence; improper transference from paramedics to basic or intermediate EMTs; accidental or intentional property damage; getting lost en route or selecting a wrong receiving facility; system, triage, and/or treatment failures during disaster response; interpersonal issues such as harassment and civil rights issues; patients' claims of inappropriate conduct or abuse.

The aforementioned exposures refer to "on duty" personnel. However, PSDA can be expanded to cover "off duty" concerns of policyholders for such matters as: normal claims covered under Good Samaritan laws; providing or failing to provide medical assistance; exceeding scope of practice; operating outside medical control; DUI, public intoxication, etc.; off-the-job civil claims; off-the-job traffic infractions.

On-duty or off-duty, the Public Servants Defense Agency thoroughly examines the concerns of municipalities' public defenders and caregivers. PSDA provides expert legal defense and indemnity at the individual employee level.

Recognizing a need or an opportunity is commendable. Developing immediate success with it is another matter.

"We knew empirically that the Wright USA concept worked well with the federal government," says Glenn Clark. "We had to extrapolate the positive elements from Wright and apply them to municipal governments. Because of our experience with program business and an expertise in professional liability, we are well connected in the industry. Our team founded the Target Markets Program Administrators Association in 2001. We know virtually every "player" in the program world. That said, nothing is easy. No matter how well connected you may be in your marketplace, a start-up agency is a considerable challenge.

"To bring a program to market you need to connect a lot of dots. Primary research to see if the product can be sold, loss data, policy forms, legal consulting, TPA assumptions, pricing parameters, finding partners to share your vision, marketing assumptions, and product launch strategies are all part of building a new program. We began the process of creating PSDA in early 2010."

 To analyze the plan's economic viability, Rockwood engaged Promotions Kartel, a promotional products and marketing research company. Karla Giannetta, Kartel's president, had worked on the Target Markets start-up with Glenn Clark a decade earlier, and utilized many of those same successful basic research techniques to extract useful information for the fledgling PSDA. She made virtually hundreds of contacts—many via telephone—and used e-mail surveys to gauge whether or not PSDA was a commercially viable idea.

"You can learn so much from voice interviews and electronic contact," Giannetta notes. "Every story I hear in this live environment is a key element in building a program. It is vitally important to ensure that the language and imagery reflect what you intend to communicate in promoting a program to your target audience.

"Even with hundreds of contacts, we just scratched the surface with the firefighters, police officers, and EMTs. It enabled us to determine that there was a need for the coverage, a pricing point that would be viewed as acceptable and the language to use that would give us a good result. Finally, we tested a Web site and gained valuable feedback on the core elements to display on line.

"Information from those contacts helped to refine promotional language and make PSDA's story more understandable. Feedback was incorporated into a company brochure as well."

Key sales and informational targets for the primary research included various public servants' organizations such as associations, unions, municipal employers, and numerous volunteer and affinity groups.

The most significant partner of PSDA is the actual risk taker. An exhaustive search of the market resulted in a partnership with insurance underwriter Markel Insurance.

"Before initiating PSDA," says Clark, "we had to sell a carrier on the risks, rates, and policy form. While none of the many carriers we spoke with slammed a door in our face, we had a very difficult time getting a carrier to 'pull the trigger.' Since it was a new program, the standard response was 'tell us more.' Sometimes a kind 'no' or 'not interested' is a better answer than 'tell us more.' We felt like we were revealing proprietary information to people who weren't as serious about this concept as we would have liked.

"From what we had learned about Wright's legal defense programs for federal employees, we were convinced that our assumptions about covering municipal professionals were correct. But, again, nothing's easy. We had to prove our assumptions. Nearly six months passed. Then fortuitously, through Scott Brock at Advocate Re in Texas, we met Scott Rohr, managing director of Public Entity at Markel Insurance."

Talk about matches made in . . . well, in this case, Texas. Rohr touches on his experience with public entities, especially with defense programs for police officers:

"I had 20-plus years specializing in the public entity sector. Here at Markel, we'd already noticed a need arising for this kind of program. We had been thinking about designing one ourselves. We didn't have the distribution for the class. We knew that Glenn Clark's background was clearly a good fit. He had discovered some of the same market intelligence that we did. It primarily related to police officers. Glenn has the experience in program administration and individual risk programs. His operations are big on service, on customer relations, and he knows what insurance companies are looking for."

The Markel-PSDA partnership quickly materialized. "Markel has high expectations for this program," exclaims Rohr. "We write business throughout the country, and we believe this program, for protecting careers, will be a nice complement for us. Often whole careers are at stake, and we know it's important that the people who protect us on a day-to-day basis should have protection for themselves and for their careers. Combining Markel's underwriting experience with Clark's background and program administration skills is certain to deliver high levels of customer service to this endeavor."

Obviously, the matters of interest to PSDA and its policyholders are typically litigious in nature. That's why another key team member—Wilson Elser Moskowitz Edelman & Dicker LLP—was on board at the outset.

 Thomas Wilson, Jr., a Wilson Elser partner, supported the concept enthusiastically when introduced to it. His programs management team created the original policy form and endorsements. Wilson Elser is highly regarded for its expertise in professional liability and legal defense. The firm has designed a  Claims Prevention Hot Line with 24-hour access and has served as Rockwood's TPA and legal counsel for many years.

Wilson Elser helped to build endorsements that even permit PSDA to insure public employees who moonlight for a different entity during their time off. Through PSDA's contracted employee program, insureds can also purchase coverage for charges that result during employments with persons or entities other than one's public employer.

Whether the insured is brought before an administrative hearing, summoned to a civil proceeding for judicial action, or is a criminal proceedings defendant, the PSDA's national counsel, Wilson Elser, ensures that the insured will be defended to the full extent that the law and the defendant's PSDA policy permit. All privileged and confidential information remains privileged and confidential. The bedrock of the PSDA program is that it is individual coverage. The plan does not have to please the employer, union or any other entity other than its named insured.

 In some circumstances, a sponsoring group may have an existing legal relationship. PSDA allows for a Choice of Counsel Option. If the insured plan has purchased that option, it is possible to include the specific counsel requested (with prior approval by Wilson Elser). Wilson Elser's 800 attorneys across the United States can handle virtually any type of defense required in the program. In cases where expert outside counsel may be required, Wilson Elser can arrange for that as well.

The emphatic mission of the Public Servants Defense Agency is representing the individual employee. Yet, to attract the optimum number of public servants and even reduce the costs per individual insured, the plan will also be distributed through affinity groups—unions, associations, and benevolent organizations. The box at left lists the plan features designed to appeal to these groups.

Sponsoring employer groups are invited to work closely with PSDA administration to review results annually. Plans can be designed to fit each group's unique situation for price, enhancements and limits. The employer group is encouraged to endorse and communicate the program via newsletter, e-mail, meetings, and payroll stuffers. In cases where the sponsor collects premiums, administrative credits can be extended.

In larger group cases PSDA has added a Benevolent Death Benefit option for which all enrolled members are eligible. Premiums begin as low as two dollars monthly. The core element of the Benevolent Fund is payment to the beneficiary, in the sponsoring group's name, within 48 hours of death—for any reason—while employed.

PSDA does all the required administrative paperwork after the claims payment so that the family is not interrupted in time of need. 

The Benevolent Benefit is designed to increase sponsoring group affinity by being the first responder (under 48 hours) when members lose their life for any reason. Often the checks are delivered by the sponsoring organization personally.

PSDA launched the final product on August 8, 2011. Clark notes, "For as little as $300 per employee, PSDA will provide full defense and indemnity up to $250,000. We intend to engage the independent agency community to help us sell this coverage to its public entity clients."

It took more than 18 months to bring the Public Servants Defense Agency to market. Bolstered by the solid reputations and experience of its various team members, including an experienced program administrator, promotional and research specialists, a prominent underwriter, and veteran TPA/legal counsel, it's a good bet that the PSDA Plan will attract huge acceptance from local police officers, firefighters, EMTs, and paramedics— those very public servants who protect and defend us.

For more information:

Public Servants Defense Agency

Phone: (302) 765-6000

Web site: www.psdains.com

E-mail: president@psdains.com