Insurance for Retaliation Claims Against Long-Term Care Facilities: Managing Risks Against SNFs, Directors, Employees

Retaliation claims usually mean that a resident alleges that their injury was the consequence of having made a complaint against the facility or staff members, and not merely the result of negligence. These claims may enable a higher recovery or the opportunity to improve care. Retaliation claims, whether made under common law or pursuant to anti-retaliation statutes or regulations, can put insurers and policyholders in a difficult position.

If insurers attempt to deny coverage based on an exclusion for intentional conduct or willful violation of laws, and the denial is contested, they risk establishing highly probative evidence of the policyholder's liability for the injury, creating a conflict of interest requiring independent counsel, and pouring a foundation for punitive or exemplary damages, regardless of whether coverage exists. 

If the coverage is found to exist, the insurer may have to defend and then indemnify an even larger amount, plus respond to a potential claim for bad faith. If denial of coverage is sustained, then the policyholder will find itself uninsured and could face insurmountable evidence of liability. Even the plaintiff has risk when asserting these claims and must weigh the opportunity for potentially greater relief—both monetary and non-monetary vindication—against the risk of an uncollectible judgment. 

Listen as our renowned panel discusses strategies for managing the insurance implications of retaliation claims against long-term care providers and their directors, administrators, and employees.

I. What are retaliation claims?

II. Anti-retaliation statutes

III. Types of policies that provide coverage

IV. Relevant exclusions

V. Policyholder strategies when bringing retaliation claims

VI. Insurer strategies when defending retaliation claims

The panel will review these and other important questions:

• What types of exclusions will insurers most likely assert?
• Do exclusions for willful violation of statutes always include retaliation claims?
• Can liability be allocated between negligence and intentional conduct?