Apr/May Issue

Behold, I Do A New Thing
by Pat Harrison

Are You Ready For The Coming Harvest?
by Lonnie Bouldin

Protecting Yourself In A Litigious World
by Rick Schaber

Why Isn't God Doing Anything For Me?
by Stephen Rathod

Testimonial Letter

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Protecting Yourself In A Litigious World

Rick Schaber
Advertising/Communications Specialist
Church Mutual Insurance Company

 

Yes, Pastor, You Can Be Sued.

Years ago, churches did not face the risk of being sued. They enjoyed charitable immunity, meaning their assets were comparable to a trust fund and could not be used for purposes other than those intended by the donors. Since it was not the intent of donors to have assets used to pay liability awards, churches were immune from paying them.

Today, the doctrine of charitable immunity is absent in most states and of very limited scope in others. Large court awards against churches attest to their equal status in today's legal arena.
Your church might have one or more employees­ clergy, secretaries, teachers, custodians, organists, coaches, administrators, and counselors. Many churches also have a large number of volunteers tackling a variety of tasks.

Volunteer workers are one of your church's greatest assets when used properly. Otherwise, they become a legal liability.

You are not responsible for paying your volunteers, but you are responsible for their actions and the consequences of those actions. An employer (church) can be held vicariously liable for the actions of its employees when they're acting within the scope of their duties. This also is true regarding volunteers, whether they are helping clean the church or watching children during services.

However, three important differences make the exposure from volunteers even greater than from employees.

1. In most states, workers' compensation laws do not protect volunteer workers. If seriously injured, volunteers must resort to the civil justice system for compensation.

2. The number of volunteer workers, and their total hours working, frequently exceeds those of paid employees.

3. Volunteer workers are often undertrained, under-skilled, and under- equipped for the duties they perform.

Here are a few actual claims involving volunteer workers:

A worker who was painting from scaffolding fell and hit his head. He lapsed into a coma.

A volunteer suffered extensive injuries and weeks of lost income when he fell from a ladder while helping with a church addition.

An aspiring pianist cut off several fingers with a table saw while helping with a church remodeling project.

The following guidelines help reduce the liability exposure involving volunteers:

Always select a capable person for the task at hand.

Hire a professional for dangerous or technically difficult jobs, such as plumbing, electrical, and roof or steeple work.

Provide adequate, well maintained tools and equipment.

Supervisors should let each volunteer know what is expected of them.

Be very selective of those who will work with children.

Many lawsuits have been filed against churches for sexual misconduct and sexual molestation committed by clergy, employees, counselors, and volunteers. These suits generally allege that churches were negligent in the following:

Hiring the offender, including volunteers.

Supervising the children.

Failing to take proper action when molestation is suspected or reported.

The following cases led to legal action against churches:

Over a long period of time, a married male teacher abused several young boys in class. He had been fired from three other schools for similar offenses. A check of references, which was not made, might have revealed this problem.

While employed by the church, a camp counselor molested an 8-year-old girl. The lawsuit alleged that the church knew of, but disregarded, a report regarding a similar event involving the counselor. The suit also stated that the church failed to investigate the counselor's qualifications prior to hiring him and that it took no action after learning of this molestation.

A pastor molested nine young boys at one church. Investigations revealed that church officials were aware of an incident at a previous church and transferred the pastor because of it.

Three students sexually abused another student in an unattended room during school hours.

Steps to reduce the chances of sexual abuse occurring at your church include stringent screening of prospective employees and volunteer workers, well-defined supervisory guidelines, educational programs, and a plan of action to follow when sexual abuse is suspected or reported.

It is a strong recommendation that churches have background checks performed on all employees and volunteers. These screenings should be done on a national basis and not only through local law enforcement agencies. Numerous agencies throughout the United States provide this service.

Clergy also are at risk when counseling. Avoid circumstances that could lead to legitimate or false accusations.

The church's role when an incident occurs

If an accident or other incident does occur and you feel there is even a remote chance of legal action, notify your insurance company. Don't wait until a lawsuit is filed, and do not decide that your insurance company will or will not cover it. Waiting to notify your insurance company wastes valuable investigation time.

Most often, anyone or any organization connected with an incident will be named in a lawsuit. Your insurance policy might provide coverage for your church and anyone acting on its behalf,
such as your board, employees and volunteers. Nevertheless, individuals involved also should notify their personal insurance companies.

Cooperate fully with your insurance company during the investigation and during all other stages of the proceedings. Most insurance policies require cooperation of the insured, and failure to comply can void coverage.

No matter how much sympathy you have for the injured person or how responsible you feel for the injury, do not encourage the injured party to sue you, and do not make statements of "guilt" or financial offers. You could be accepting responsibility and liability when the responsibility and
liability lie elsewhere. Encouraging legal action or making offers on your own might be in violation of your insurance policy. Furthermore, it is possible that the suit you encourage is not covered by insurance or might result in a judgment greater than your policy limit.

The civil justice system in the United States is an adversary system. Your church and the party suing your church become opponents in the litigation process. Testimony from either side is likely to create hard feelings.

The legal process can be a long, distracting, and emotionally draining process for both sides. For cases that are tried in court, the process can take from one to five years.

Your insurer's role

When an accident or incident is reported, your insurance company will investigate and determine whether coverage is applicable and prepare a course of action.

Where coverage is applicable, the company will form an evaluation as to the likelihood of your church being found negligent by a jury in a court of law. Based on research of other similar cases, the company also will estimate the value of the case­the amount a jury is likely to award if your church is found liable.

Based on the findings, your insurance company will decide to fight the case in court or make an out-of-court settlement offer. Because the trial process is painful and costly for both sides, approximately 95 percent of all lawsuits are settled out of court.

Finally, it is the insurance company's respon-sibility to pay the settlement (or court award)
and legal costs, up to the policy limit, in covered claims.

About The Author

Rick Schaber is an advertising/communications specialist with Church Mutual Insurance Company based in Merrill, Wisconsin. If you have any questions regarding the article, you can call Rick at 715-539-4587 or e-mail him at rschaber@churchmutual.com. Church Mutual insures more than 72,000 churches and religious-related institutions in the United States.