Preferred News Spring 2019Public Risk Underwriters of Florida, Inc. During Florida’s hurricane...

12
Spring 2019 News Inside This Issue: Hurricane Season Preparedness 2019 Exclusive Articles: Hurricane Season 2019: Are You Ready? .................. 3 Hurricane Debris, Plan on It! ............................. 4 Welcome New Preferred Members .............. 5 Special Article: Return to Work Policies Make Cents ........... 6 Training Network NOW Video Streaming Service for Preferred Members ....... 8 News Extra: That Settles It: The Florida Supreme Court Resolves Confict and Extends Stand Your Ground Immunity Protections to Law Enforcement Offcers ....... 9 2019 Preferred Member Education Day ................... 10 Breaktime Fun -n- Games .................... 11 Preventing Workers’ Compensation Injury / Illness During Hurricane Season By Chris Kittleson, Director of Loss Control Technical Services - Public Risk Underwriters of Florida, Inc. During Florida’s hurricane season employees are exposed to increased risk of injury. Employees that are most likely to sustain injuries are those that perform work duties in preparation of the storm and perform hazardous work duties outdoors during the storm. Employees that deal with the aftermath of the storm during debris cleanup and repair of buildings and infrastructure are also exposed to increased risk of injury. HURRICANE PREPARATION A means of reducing storm related injury/illness during emergency preparations can be obtained by implementing an Emergency Action Plan (EAP). The Occupational Health and Safety Administration’s (OSHA) 29 C.F.R. 1910.38 requires employers with more than 10 employees to develop and implement a written Emergency Action Plan. The EAP should be developed to identify and coordinate necessary employer and employee actions during an emergency such as a hurricane. In addition, in order for the EAP to be efective employees need to be trained to better understand their roles and responsibilities under the plan. At a minimum the EAP must include the following elements: Means of reporting emergencies Evacuation procedures and assigned exit routes Procedures to account for all employees following an evacuation Procedures to be followed by employees required to remain behind to attend to critical operations before evacuating Designate and train employees to assist in a safe and orderly evacuation of other employees Rescue and/or medical duties for employees who are assigned/trained to perform them Names or job titles of people who can be contacted for more information about the plan The location of the nearest hospital or emergency medical center The type of alarm system used to notify employees of an emergency The location and permissible use of protective equipment such portable defbrillators, frst aid kits, dust masks, and fre extinguishers Identify employees who are qualifed/trained to perform emergency preparations to reduce the potential for injury/illness CONTINUED ON PAGE 2

Transcript of Preferred News Spring 2019Public Risk Underwriters of Florida, Inc. During Florida’s hurricane...

Page 1: Preferred News Spring 2019Public Risk Underwriters of Florida, Inc. During Florida’s hurricane season employees are exposed to increased risk of injury. Employees that are most likely

Spring 2019 NewsInside This Issue Hurricane Season Preparedness 2019

Exclusive Articles Hurricane Season 2019 Are You Ready 3

Hurricane Debris Plan on It 4

Welcome New Preferred Members 5

Special Article Return to Work Policies Make Cents 6

Training Network NOW Video Streaming Service

for Preferred Members 8

News Extra That Settles It The Florida Supreme Court Resolves Conflict and Extends Stand Your Ground Immunity Protections to Law Enforcement Officers 9

2019 Preferred Member Education Day 10

Breaktime Fun -n- Games 11

Preventing Workersrsquo Compensation Injury  IllnessDuring Hurricane SeasonBy Chris Kittleson Director of Loss Control Technical Services - Public Risk Underwriters of Florida Inc

During Floridarsquos hurricane season employees are exposed to increased risk of injury Employees that are most likely to sustain injuries are those that perform work duties in preparation of the storm and perform hazardous work duties outdoors during the storm Employees that deal with the aftermath of the storm during debris cleanup and repair of buildings and infrastructure are also exposed to increased risk of injury

HURRICANE PREPARATION

A means of reducing storm related injuryillness during emergency preparations can be obtained by implementing an Emergency Action Plan (EAP) The Occupational Health and Safety Administrationrsquos (OSHA) 29 CFR 191038 requires employers with more than 10 employees to develop and implement a written Emergency Action Plan The EAP should be developed to identify and coordinate necessary employer and employee actions during an emergency such as a hurricane In addition in order for the EAP to be effective employees need to be trained to better understand their roles and responsibilities under the plan At a minimum the EAP must include the following elements

bull Means of reporting emergenciesbull Evacuation procedures and assigned exit routesbull Procedures to account for all employees following an evacuationbull Procedures to be followed by employees required to remain behind to attend to

critical operations before evacuating

bull Designate and train employees to assist in a safe and orderly evacuation of otheremployees

bull Rescue andor medical duties for employees who are assignedtrained to performthem

bull Names or job titles of people who can be contacted for more information about theplan

bull The location of the nearest hospital or emergency medical centerbull The type of alarm system used to notify employees of an emergencybull The location and permissible use of protective equipment such portable defibrillators first aid kits dust masks and fire extinguishers

bull Identify employees who are qualifiedtrained to perform emergency preparationsto reduce the potential for injuryillness

CONTINUED ON PAGE 2

FEATURE ARTICLE

RESPONDING DURING AN EMERGENCY

While most employees can stay inside during a hurricane some employees are required to go into the storm This may include utility workers law enforcement personnel firefighters and emergency response medical personnel sanitation and public works employees Some of the typical workplace safety hazards employees would be exposed to during a hurricane include the following

bull Hazardous driving conditions due to slippery roadways bull Exhaustion from working extended shifts bull Slips and falls due to slippery walkingworking surfaces bull Dehydration bull Falling and flying objects such as tree limbs and utility poles bull Heat Stress bull Electrical hazards from downed power lines or downed bull Musculoskeletal Hazards

objects in contact with power lines bull Waterborne Diseases bull Falls from heights bull Burns from fires caused by energized line contact or

equipment failure

POST HURRICANE RESPONSE

Once the proverbial dust settles after a hurricane hazards to employees still remain Hazards are even greater for employees who are tasked with cleaning up after the storm and can expect to be exposed to the following hazards

bull Exposure to hazardous chemicals or mold bull Mosquito-borne diseases such as Zika virus bull Downed power lines and trees bull Structural Destabilization bull Heat Illness bull Tree RemovalChain Saws bullConfined Spaces bull Exhaustion from working extended shifts bull Blood-borne diseases or other contagions

In all cases it is incumbent upon employers to ensure employees exposed to the hazards referenced are provided with appropriate training proper tools and equipment as well as personal protective equipment to reduce andor eliminate workplace injuriesillness during Floridarsquos hurricane season

For additional information and assistance regarding emergency preparedness please feel free to contact your Preferred Loss Control Consultant

2

Christopher H Kittleson is the Director of Loss Control Technical Services and provides Loss Control services for public entities in the southeastern Florida region With over 20 years of safety amp health consulting experience Chris has developed industry expertise in the areas of Construction Manufacturing Fleet Safety and USLampH as well as safety programming expertise in the areas of Safety Program Development Return to Work Programs Regulatory Compliance Accident Investigation and Safety Training Chris graduated Cum Laude from St Cloud State University St Cloud MN with a Bachelors of Science in Engineering Technology has earned his Associate in Risk Management (ARM) is a National Safety Council Certified Defensive Driving Course Instructor and Certified Playground Safety Inspector (CPSI) as well as a Professional Member of the American Society of Safety Professionals (ASSP) and was awarded the 2013 Safety Professional of the Year Award by the South Florida Chapter of ASSP

3

EXCLUSIVE ARTICLE

Hurricane season begins June 1st and runs through November 30th with the peak during late August We have learned over the last several years that Hurricanes are highly unpredictable and can change direction at any given time Being prepared is of the utmost importance Below you will find important terms to know in the wake of a storm and some tips for pre and post storm action to include claims reporting

Important Terms Tropical Depression This is an atmospheric low-pressure system originating in the tropics Specifically a tropical cyclone in

which the maximum sustained wind speed is 38 miles per hour or less

Tropical Storm This is a storm which originates from the tropics with sustained winds ranging from 39 - 73 miles per hour

Hurricane Watch This means hurricane conditions are possible within the specified area Hurricane Warning The hurricane warning is issued 36 hours in advance of the anticipated onset of tropical-storm-force winds Hurricane This is a storm that originates in the tropics with sustained winds in excess of 73 miles per hour

Pre-Storm The best case scenario is to be proactive Here are a few tips

1 Prepare an emergency response plan - Prepare a disaster recovery and business continuity plan that can be easilyimplemented before a hurricane This plan should be reviewed and updated annually

2 Review your property policy for coverages deductibles etc - One can never truly prepare for a hurricane Different stormscarry different challenges- varying wind speeds flood versus surge service interruption ingress-egress issues tornadosetc However it is important to have a designated person in charge of a claim whether itrsquos a risk manager city manager ormaintenance professional This person should review and understand the coverage agreement-what it covers and what itdoesnrsquot If there are misunderstandings or items which appear unclear a discussion with your agent maybe necessary

3 Compile a list of resources for post storm cleanup and repair (contractors restoration companies etc) - Place vendors onnotice during hurricane season requesting they assist in the event of a minor or major event Acting quickly can mitigate yourdamages Preferred has mailed Hurricane Kits to property members that includes a list of preferred vendors

Post-Storm In the event you have storm related damages you should do the following

1 Assess damages and prioritize by severity

2 Mitigate damages whenever possible

3 Report claims timely by the following

bull Phone 1-800-237-6617 | Fax 321-832-1448 | Email Hurricanepgcs-tpacom

bull Contact Fred Tucker Liability Claims Manager at 1-800-237-6617 ext 4000 or ftuckerpgcs-tpacom

Post -Storm Claims Handling 1 Once the claim is reported to PGCS they will engage Engle Martin amp Assoc to contact the member to discuss the claims

process and schedule inspections as needed

2 Engle Martin works closely with PGCS and will provide status updates payment recommendations to include advancepayments when necessary and settlement recommendations

3 Engle Martin will work closely with the member throughout the claims process until conclusion

Working with FEMA Our recommendation for working with FEMA is to complete your application and then work with Preferred via Engle Martin PGCS adjusters through the claims process before submitting any documentation to FEMA Once your claim is concluded with Preferred a detailed payment directive letter will be provided and this will include a damages deductible worksheet that can be provided to FEMA outlining the entirety of your claim

If you have questions about the claims process please contact your agent or Fred Tucker at PGCS

Hurricane Season 2019 Are You Ready

EXCLUSIVE ARTICLE

Hurricane Debris Plan for It  By Mike Marinan Director of Member Services - Public Risk Underwriters of Florida Inc

Debris created by storms can often times be overwhelming in its magnitude Debris management and removal are invariably among the most complex and costly problems following a disaster Over 1000000 cubic feet of debris were created by Hurricane Matthew in Flagler and St Johns counties alone When asked if he had any advice regarding the post hurricane debris Joe Meyer the recently retired Risk Manager at Flagler County responded ldquoMake sure you know where your going to put it plan for itrdquo

The cost of debris removal can mean the difference between successfully managing the post hurricane or not Cleaning up this debris can be time-consuming and costly extending the recovery from the disaster According to FEMA Hurricane Katrina one of the most catastrophic natural disasters in history resulted in more than 99 million cubic yards of debris totaling greater than $37 billion in debris removal costs

In 2017 there were 17 disasters of over $1billion dollars the total cost of the 17 was $306 billion dollars a record According to the 2014 National Climate Assessment which is a detailed report on climate change impacts on the US climate change is expected to increase the frequency and intensity of some natural disasters The amount of debris generated by natural disasters and the costs to manage it will likely increase as a result

After a natural disaster strikes a community working with federal and state officials and other stakeholders must conduct many debris management-related activities before it can fully recover These activities can include

bull Estimating debris quantities

bull Assessing debris management options

bull Triaging debris management

bull Segregating debris into different material andwaste streams

bull Identifying debris management sites and facilitiesand their available capacities

bullCollecting and hauling debris from the field andorcurb

bull Removing debris from waterways and sensitivehabitats

bull Sampling and analysis of debris

bull Characterizing debris for proper management

bull Obtaining emergency permits

bull Processing debris (eg Volume reductionrefrigerant removal)

bull Packaging and labeling debris for transport

bull Transporting debris to debris management sitesand facilities

bull Managing debris through reuse recyclingtreatment andor disposal

bull Monitoring incoming debris at the debrismanagement sites and facilities

bull Tracking debris from the original deposited point tofinal destination

bull Conducting debris management oversight activitiesincluding site visits inspection and environmentalmonitoring at debris management sites

bull Communicating with the public about debriscollection and other management activities

Pre-incident debris management planning by communities including forecasting debris volumes and types identifying available capacity developing debris management options and defining roles and responsibilities for all debris management-related activities can go a long way in mitigating the cost and time of recovery

CONTINUED ON PAGE 5

4

EXCLUSIVE ARTICLE

Pre-incident debris management planning can provide significant benefits

bull Saves valuable time and resources during aresponse to a disaster

bull Allows more efficient effective andenvironmentally responsible waste managementdecision-making during a disaster

bull Encourages stakeholders ( state local owners ofprivate storage treatment and disposal facilitiesresidents) to work together before disasteroccurs

bull Boosts the communityrsquos resiliency in the wake of adisaster and positions it for a quicker and less costlyrecovery to its pre-incident state

bull Enhances the communityrsquos adaptation to the debris-related impacts of climate-change

bull Minimally detracts from or otherwise impacts thebroader response and recovery efforts due to theefficient implementation of debris managementactivities

Based on lessons learned and insights from community officials who have conducted debris cleanup after a natural disaster the Environmental Protection Agency developed a comprehensive pre-incident planning process to help prepare communities for effective disaster debris management This recommended process guides communities through four steps

1 Conduct pre-planning activities 3 Keep the debris management plan updated

2 Develop a comprehensive pre-incident debris 4 Implement the debris management plan during a management plan natural disaster

Florida is unique in itrsquos vulnerability to Hurricanersquos There is hardly a community that hasnrsquot been effected in recent years by one The storms are getting more severe and the costs and clean-up post disaster more profound Planning for what needs to be done post-disaster has never been more important than now

Mike Marinan has a degree in Industrial Safety Engineering and over 35 years experience in the Safety and Risk Management field He has been employed by Public Risk Underwriters of Florida Inc for 17 years He holds an RMPE designation holds a General Lines 220 and 218 licenses is an active member of Central Florida PRIMA as well as an active member of ASSP and numerous related Safety and Health organizations He was a Governor appointee to the Task Force on Workplace Safety

5

Preferred would like to welcome the following new members

Village Community Development District 13

Lincoln Road Business Improvement District Inc

SPECIAL ARTICLE

Return to Work Policies Make Cents By Amy Siegel Oran Esquire Partner - Kelley Kronenberg

The hazards encountered on a daily basis by those working in municipalities often lead to injuries the restrictions from which are inherently difficult to accommodate

Despite the best training and safety equipment you may provide accidents will happen Carrying workersrsquo compensation coverage is not only legally required but also the best way to reduce the financial risk however relying on your carrier is not enough To keep your claim costs low and your premiums reasonable a carefully tailored well-executed return to work (RTW) policy is critical

To run an RTW program you need to craft one particular to the nature of your municipality and to your divisions within the town or city itself There are twelve core steps to guide you in the creation and implementation of a successful program

1 Implement a written RTW policy that is applied 7 Manage co-workers and their reactions evenly 8 Monitor actual work of injured employee on light duty

2 Decide what job to offer 9Accommodate medical appointments without3 Ensure clear knowledge of employeersquos limitations getting taken advantage of

4 Send light duty job offer letter via proper means 10 Respond to complaints of the injured worker

5 Manage the first day back with care 11 Decide how to pay the employee on light duty

6 Know what you cancannot say 12 Report earnings to WC Carrier

Restrictions often seen in the public service sector can make RTW more complicated but it is rarely impossible if the treating physician says your employee can RTW in some capacity find a way for she or he to do so using these helpful tips

Step 1 Implement a written RTW policy that is applied evenly the program as crafted should apply to all employees equally and be administered by one individual or team to monitor and ensure even-handed application For example if your waste and sanitation department workers are offered light duty the police officers must be as well

Step 2 Decide what job to offer you need not place the employee back in their prior role as is often impossible For example if a firefighter sustains a burn avoidance of heat is a common restriction look to a job far from the heat perhaps conducting investigations of suspicious fires or as a 911 operator even Sedentary or very light duty jobs are often best found in the administration department

Step 3 Ensure clear knowledge of employeersquos limitations the injured worker should bring forms to you with the doctorrsquos restrictions but if not received the insurance adjuster can provide you copies Lifting restrictions are the most common but with limitations on the length of time one may sit or stand or how often one must change positions arise regularly as well

Step 4 Send light duty job offer letter via proper means the law on this point is clear ndash you must notify the injured worker of the light duty in writing and via trackable means A phone call telling the injured worker to return will not suffice The letter need not state the job yoursquore offering the shifts or the pay just that you have a position within the restrictions and directing the employee to whom to report and when If the job is refused notify the adjuster immediately

6CONTINUED ON PAGE 7

SPECIAL ARTICLE

Step 5 Manage the first day back with care once the employee reports to work set forth the details of the assignment and your expectations Ensure the tasks are within the most recent restrictions give the information about the new role the shifts and the pay Certain positions within a town or city work a non-traditional schedule for example two days onone day off The light duty you have may not match that nor does it have to simply ensure the new schedule is clearly conveyed and understood

Step 6 Know what you cancannot say keeping the peace is critical and that begins with management It is incumbent upon supervisors to be role models Ask the employee how shehe is feeling or if shehe needs help to let you know Do not accuse or imply someone of faking an injury or exaggerating pain and do not broach the topic of lawyers lawsuits or litigation

Step 7 Manage co-workers and their reactions The aforementioned role models must not only lead by example but must play referee Do not allow co-workers to lob accusations such as those mentioned above or gossip Temper jealousy with comments like ldquoif you got hurt wouldnrsquot you want us to help you toordquo If co-workers are heard talking about money the injured worker is supposedly getting through the case end that conversation immediately as these claims are contagious the last thing you want is four more water plant operators alleging back injuries from changing out meters

Step 8 Monitor actual work of injured employee on light duty one who is working with pain is more prone to re-injure or exacerbate herhis condition Embarrassment bravado and thoughtlessness often leads the worker on light duty to not ask for help and instead act outside the restrictions For example strapping on a ldquogun beltrdquo with the multitude of items attached thereto when there are strict weight-based restrictions in place The pressure that may place on the low back and throughout the legs can increase pain and lead to tighter restrictions or a no work status which can and does increase the claim costs Management must watch to ensure the job is being done right as well as being done texting in the corner instead of investigating the new applicants from the police academy

Step 9 Accommodate medical appointments without getting taken advantage of inevitably some workers will try to take advantage You must allow your workers to go to their appointments however in the public sector work schedules usually do not match the standard office hours of a doctor Thus encourage your employees to make their PT and other appointments before shifts begin or whatever accommodations allow medical compliance without work absences

Step 10 Respond to complaints of the injured worker ldquoMy back hurts I need to go homerdquo ldquoIf your back hurts you need to go to the doctor because the job is within your restrictionsrdquo ldquoThis is work I am not allowed to dordquo ldquoLetrsquos go over your most recent restrictions to ensure your safetyrdquo The key is not to give in and not allow the employee to take advantage of the kindness of herhis employer

Step 11 Decide how to pay the employee on light duty you need not compensate at the same rate as prior to the accident and having some employees on a salary and some paid hourly can lead to confusion The goal to have the best financial outcome in your claim is to offer work that allows the employee to earn 80 of that which was being earned pre-injury Yoursquoll need to update the insurance adjuster on the RTW and shehe can assist in these calculations

Step 12 Report earnings to WC Carrier despite your best efforts there are circumstances under which the employee will still be entitled to some compensation from the insurance carrier it is incumbent upon you to ensure the adjuster has the weekly earnings to ensure benefits are properly and timely administered

The benefits of a well-run return to work program are multi-faceted Getting the worker back in the line of duty lessens the amount of money being paid out by the carrier and thus your immediate claim costs and future insurance rates Allowing the employee to sit at home leads to otherwise avoidable litigation the lawyer ads playing on TV during the day are enticing Hearing the local firm got $1M for another injured worker leads your employee to see dollar signs flashing in neon lights

7CONTINUED ON PAGE 8

SPECIAL ARTICLE

It also fosters wallowing and pain-focused behavior which is detrimental to psychological health and makes it harder to convince someone shehe is capable of working It is difficult if not impossible for many to work while taking medications as such the RTW lessens the amount of medication used and lowers the risk of opioid addiction Bringing your injured worker back makes it impossible for herhis attorney to argue shehe is too injured to work Lastly do not abandon your employee show you care by doing what you can to ensure shehe still has income to pay the rent and feed the family

It may not be an easy task to bring back an injured worker but the financial benefits can be significant and as noted it goes well-beyond the money it is beneficial to the physical and mental health of your employee too and that is a winwin

Amy Siegel Oran is a Partner of Kelley Kronenbergrsquos West Palm Beach office concentrating her practice exclusively on Workersrsquo Compensation defense She focuses her practice on the defense of workersrsquo compensation claims on behalf of employers insurance carriers self-insured corporations third party administrators and claims servicing agencies

Her background includes extensive experience with all aspects of Litigation and Appellate Law Amy is certified by the state of Florida to conduct Continuing Education courses and regularly presents seminars on a wide variety of legal matters She has served on the Workersrsquo Compensation Practice Committee for the Palm Beach County Bar Association playing an integral role in planning the annual Bench Bar Conference as well as speaking at the Conference on numerous occasions Additionally Amy provides regular training seminars to clients advising supervisors managers and employers on proper claim reporting and handling techniques

Amy is also very active with the South Florida affiliate of Susan G Komen After three years on the organizationrsquos Board of Directors Amy now proudly serves as Vice President for the Board of Directors for both the Executive Board and Executive Committees of Susan G Komen Florida

8

This training resource gives our members unlimited access to Training Network NOWrsquos extensive video streaming library of videos covering workplace safety driving safety construction safety and human resourcelegal compliance Video titles are available in both English and Spanish to support your organizations training initiatives Features of Training Network NOW streaming video service include

bull An easily accessible extensive video library of over 680 videos

bull Video course materials to include quizzes completion certificates and leader guides

bull Tablet amp Mobile Capable ndash Now you can watch videos on your preferred mobile device such as tabletsand smartphones

As part of Preferredrsquos initiative to provide continuous improvements for productsservices offered to our members we highly encourage you to considering utilizing the Training Network NOW video streaming service to assist you with your safety and risk management training needs

To learn more on how your organization can take advantage of this exciting free training resource please contact Mike Stephens Senior Loss Control Specialist at Ph 321 832-1658Email mstephenspublicrisk com or your respective regional Loss Control Consultant

Video Streaming Service for Preferred Members

NEWS EXTRA

That Settles It The Florida Supreme Court Resolves Conflict and Extends Stand Your Ground Immunity Protections to Law Enforcement Officers By J David Marsey Esquire - Rumberger Kirk amp Caldwell

The debate about Floridarsquos statutory immunity from criminal and civil liability commonly referred to as the ldquoStand Your Groundrdquo law has reached far and wide Proponents and opponents alike have opined that the law needs revision and courts have disagreed over the application of its terms One area of frequent disagreement involves the application of the immunity to law enforcement officers acting within the course and scope of their employment

The Florida Supreme Court has finally spoken and in doing so resolved the conflict between Florida District Courts of Appeal After consideration of two conflicting lower court decisions and interpreting the law itself the Court held that the clear and unambiguous statutory language affords law enforcement officers the same immunity provisions available to the public at large1

At the core of this dispute lies two similar but substantively different statutes Section 77605 Florida Statutes provides that a law enforcement officer need not retreat or desist from efforts to make a lawful arrest because of actual or threatened resistance from the person to be arrested It also authorizes an officer to use any force which is (1) reasonably necessary to defend himself or herself or another person from harm while making the arrest (2) necessarily committed in retaking an escaped felon and (3) necessarily committed in arresting a felon fleeing from justice Section 776032 Florida Statutes Floridarsquos Stand Your Ground law provides that a ldquopersonrdquo who uses or threatens to use lawful force is immune from criminal prosecution and civil action for the use or threatened use of force if enumerated circumstances exist

The interplay between these two statutes was examined by the Second District Court of Appeal in State v Caamano2 in 2012 In that case an officer was criminally charged with attempted battery and unsuccessfully asserted Stand Your Ground immunity pursuant to Section 776032 In denying the officerrsquos entitlement to immunity from prosecution the Court reasoned that the more specific statutory language applicable to law enforcement officers contained in Section 77605 Florida Statutes controlled over the more general provisions contained in Section 776032 that applied to the public at large Therefore the court reasoned the Stand Your Ground immunity provision was unavailable to an on-duty police officer for force used in the making of an arrest

The issue was revisited by the Fourth District Court of Appeal in State v Peraza 3 in 2017 In that case an officer successfully moved to dismiss an indictment against him for manslaughter with a firearm arising from the officer shooting a suspect who pointed an air rifle at him The State appealed the dismissal based on the Caamano Courtrsquos reasoning The Fourth DCA disagreed with Caamano and affirmed the dismissal of the indictment In that case the court reasoned that an officer using force while making an arrest was not limited by the specific statute applying to officers but was also entitled to seek immunity under Section 776032 Florida Statutes The Peraza Court held that despite the specific statute applying to law enforcement officers are also ldquopersonsrdquo under the law and that nothing under Floridarsquos Stand Your Ground law excludes an officer making an arrest from the immunity provisions available to the general public The Peraza Court certified the conflict with Caamano and certified the question as one of great public importance thus paving the way for review by the Florida Supreme Court

In its review of Peraza the Florida Supreme Court recognized the Caamano Courtrsquos efforts to harmonize different statutory provisions that applied to law enforcement and the more general Stand Your Ground immunity statute Treating the case as one of statutory construction the Supreme Court agreed with the lower courtrsquos rationale and found that the two statutory provisions provided overlapping protections for law enforcement officers making an arrest A noteworthy distinction recognized by the Supreme Court but not considered by either of the lower courts was the distinction between a defense and an immunity

9CONTINUED ON PAGE 10

SPECIAL ARTICLE

While the more specific law enforcement statue provides a defense for the use of force during an arrest it does not include any immunity provisions Conversely the Stand Your Ground statute provides an ldquoimmunity from prosecutionrdquo that is afforded to ldquoany personrdquo who uses lawful force under enumerated circumstances Since there is no language excluding a law enforcement officer from the clear and unambiguous application to a ldquopersonrdquo a law enforcement officer is entitled to assert the Stand Your Ground immunity defense

The Supreme Courtrsquos decision reaffirms that ldquoofficers are people toordquo and that they are entitled to the full use of the Stand Your Ground immunity defense applicable to the public at large whether they are making an arrest or not The importance of this decision cannot be overstated because this now provides officers viable legal defenses to prevent lengthy and costly criminal proceedings if they are able to show through a pre-trial hearing an entitlement to immunity Although the Supreme Court in Peraza addressed only the criminal charges before it Floridarsquos Stand Your Ground immunity provisions provides for immunity for both criminal and civil liability Therefore depending on the specific facts of the case officers facing civil actions for the excessive use of force may have an additional opportunity to obtain dismissal prior to trial and the denial of immunity may also provide the potential for pre-trial appellate review Law enforcement executives and their counsel should familiarize themselves with these new standards and should continue to monitor this developing area of law

1 State v Peraza Case No SC17-1978 (Fla Dec 13 2018) 2 105 So 3d 18 (Fla 2d DCA 2012) 3 226 So 3d 937 (Fla 4th DCA 2017)

J David Marsey is a former police officer investigator and prosecutor and is a partner at the law firm of Rumberger Kirk amp Caldwell in Tallahassee Florida He defends and advises corporations government entities and their employees on casualty employment and constitutional issues throughout the state For more information please visit wwwrumbergercom

10

We are looking forward to seeing you there

2019 MEMBER EDUCATION DAY

April 4th 2019

Orlando World Center Marriott

BREAKTIME FUN -N- GAMES

Hurricane History Trivia 1 What hurricane holds the record for smallest eye

a Wilma b Andrew c Allen d Betty

2 What hurricane holds the record for longest endurance

a Alicia b Cesar c John d Celia

3 What hurricane holds the record for being the largest storm in diameter

a Ingrid b Erika c Hugo d Sandy

4 What Atlantic hurricane holds the record for traveling the furthest distance

a Cloe b Matthew c Faith d Engelbert

5 What Atlantic hurricane holds the record for longest duration as a category 5

a Irma b Otto c Rita d Charley

6 What year holds the record for the least amount of storms to form in a season

a 1983 b 1990 c 2012 d 1969

7 Who is the individual that is given credit as being the first to name hurricanes

a Louis Huricain b King Edward c Clement Wragge d Richard Nixon

8 Who is the individual given credit for being the first to fly safely through a hurricane

a Neal Armstrong b Chuck Yeager c Joseph Duckworth d Amelia Earhart

9 What year holds the record for most named storms to form in one storm season in the Atlantic

a 1974 b 2005 c 1998 d 2004

10 What hurricane holds the record for highest maximum sustained wind speed and lowest barometric pressure

a Allen b Wilma c Mitch d Patricia

11  Where did the word lsquoHurricanerdquo derive from

a Nickname of a famous Caribbean pirate b Mayan god of wind and storm c A mythical Norse sea creature

12 Hurricanes use to be given female names but are now given male and female names On what year did this begin

a 2000 b 1979 c 1998 d 1986

KEY STAFF CONTACTSPlease visit wwwpgitorgResourcesSpring 2019Article Index for Hurricane History Trivia answer key

As a member of Preferred your first call should always be to your agent if however you need help beyond your agent please feel free to contact us as indicated below

Marketing Operations Loss Control Claims marketingpublicriskcom jmartinpublicriskcom mstephenspublicriskcom ftuckerpgcs-tpacom 321-832-1455 321-832-1691 321-832-1658 321-832-1401 Kurt Heyman Jennifer Martin Mike Stephens Fred Tucker

11

Standard Presort

US Postage PAID

Permit 1979 Orlando FL

P O BOX 958455 - Lake Mary FL 32795-8455

Page 2: Preferred News Spring 2019Public Risk Underwriters of Florida, Inc. During Florida’s hurricane season employees are exposed to increased risk of injury. Employees that are most likely

FEATURE ARTICLE

RESPONDING DURING AN EMERGENCY

While most employees can stay inside during a hurricane some employees are required to go into the storm This may include utility workers law enforcement personnel firefighters and emergency response medical personnel sanitation and public works employees Some of the typical workplace safety hazards employees would be exposed to during a hurricane include the following

bull Hazardous driving conditions due to slippery roadways bull Exhaustion from working extended shifts bull Slips and falls due to slippery walkingworking surfaces bull Dehydration bull Falling and flying objects such as tree limbs and utility poles bull Heat Stress bull Electrical hazards from downed power lines or downed bull Musculoskeletal Hazards

objects in contact with power lines bull Waterborne Diseases bull Falls from heights bull Burns from fires caused by energized line contact or

equipment failure

POST HURRICANE RESPONSE

Once the proverbial dust settles after a hurricane hazards to employees still remain Hazards are even greater for employees who are tasked with cleaning up after the storm and can expect to be exposed to the following hazards

bull Exposure to hazardous chemicals or mold bull Mosquito-borne diseases such as Zika virus bull Downed power lines and trees bull Structural Destabilization bull Heat Illness bull Tree RemovalChain Saws bullConfined Spaces bull Exhaustion from working extended shifts bull Blood-borne diseases or other contagions

In all cases it is incumbent upon employers to ensure employees exposed to the hazards referenced are provided with appropriate training proper tools and equipment as well as personal protective equipment to reduce andor eliminate workplace injuriesillness during Floridarsquos hurricane season

For additional information and assistance regarding emergency preparedness please feel free to contact your Preferred Loss Control Consultant

2

Christopher H Kittleson is the Director of Loss Control Technical Services and provides Loss Control services for public entities in the southeastern Florida region With over 20 years of safety amp health consulting experience Chris has developed industry expertise in the areas of Construction Manufacturing Fleet Safety and USLampH as well as safety programming expertise in the areas of Safety Program Development Return to Work Programs Regulatory Compliance Accident Investigation and Safety Training Chris graduated Cum Laude from St Cloud State University St Cloud MN with a Bachelors of Science in Engineering Technology has earned his Associate in Risk Management (ARM) is a National Safety Council Certified Defensive Driving Course Instructor and Certified Playground Safety Inspector (CPSI) as well as a Professional Member of the American Society of Safety Professionals (ASSP) and was awarded the 2013 Safety Professional of the Year Award by the South Florida Chapter of ASSP

3

EXCLUSIVE ARTICLE

Hurricane season begins June 1st and runs through November 30th with the peak during late August We have learned over the last several years that Hurricanes are highly unpredictable and can change direction at any given time Being prepared is of the utmost importance Below you will find important terms to know in the wake of a storm and some tips for pre and post storm action to include claims reporting

Important Terms Tropical Depression This is an atmospheric low-pressure system originating in the tropics Specifically a tropical cyclone in

which the maximum sustained wind speed is 38 miles per hour or less

Tropical Storm This is a storm which originates from the tropics with sustained winds ranging from 39 - 73 miles per hour

Hurricane Watch This means hurricane conditions are possible within the specified area Hurricane Warning The hurricane warning is issued 36 hours in advance of the anticipated onset of tropical-storm-force winds Hurricane This is a storm that originates in the tropics with sustained winds in excess of 73 miles per hour

Pre-Storm The best case scenario is to be proactive Here are a few tips

1 Prepare an emergency response plan - Prepare a disaster recovery and business continuity plan that can be easilyimplemented before a hurricane This plan should be reviewed and updated annually

2 Review your property policy for coverages deductibles etc - One can never truly prepare for a hurricane Different stormscarry different challenges- varying wind speeds flood versus surge service interruption ingress-egress issues tornadosetc However it is important to have a designated person in charge of a claim whether itrsquos a risk manager city manager ormaintenance professional This person should review and understand the coverage agreement-what it covers and what itdoesnrsquot If there are misunderstandings or items which appear unclear a discussion with your agent maybe necessary

3 Compile a list of resources for post storm cleanup and repair (contractors restoration companies etc) - Place vendors onnotice during hurricane season requesting they assist in the event of a minor or major event Acting quickly can mitigate yourdamages Preferred has mailed Hurricane Kits to property members that includes a list of preferred vendors

Post-Storm In the event you have storm related damages you should do the following

1 Assess damages and prioritize by severity

2 Mitigate damages whenever possible

3 Report claims timely by the following

bull Phone 1-800-237-6617 | Fax 321-832-1448 | Email Hurricanepgcs-tpacom

bull Contact Fred Tucker Liability Claims Manager at 1-800-237-6617 ext 4000 or ftuckerpgcs-tpacom

Post -Storm Claims Handling 1 Once the claim is reported to PGCS they will engage Engle Martin amp Assoc to contact the member to discuss the claims

process and schedule inspections as needed

2 Engle Martin works closely with PGCS and will provide status updates payment recommendations to include advancepayments when necessary and settlement recommendations

3 Engle Martin will work closely with the member throughout the claims process until conclusion

Working with FEMA Our recommendation for working with FEMA is to complete your application and then work with Preferred via Engle Martin PGCS adjusters through the claims process before submitting any documentation to FEMA Once your claim is concluded with Preferred a detailed payment directive letter will be provided and this will include a damages deductible worksheet that can be provided to FEMA outlining the entirety of your claim

If you have questions about the claims process please contact your agent or Fred Tucker at PGCS

Hurricane Season 2019 Are You Ready

EXCLUSIVE ARTICLE

Hurricane Debris Plan for It  By Mike Marinan Director of Member Services - Public Risk Underwriters of Florida Inc

Debris created by storms can often times be overwhelming in its magnitude Debris management and removal are invariably among the most complex and costly problems following a disaster Over 1000000 cubic feet of debris were created by Hurricane Matthew in Flagler and St Johns counties alone When asked if he had any advice regarding the post hurricane debris Joe Meyer the recently retired Risk Manager at Flagler County responded ldquoMake sure you know where your going to put it plan for itrdquo

The cost of debris removal can mean the difference between successfully managing the post hurricane or not Cleaning up this debris can be time-consuming and costly extending the recovery from the disaster According to FEMA Hurricane Katrina one of the most catastrophic natural disasters in history resulted in more than 99 million cubic yards of debris totaling greater than $37 billion in debris removal costs

In 2017 there were 17 disasters of over $1billion dollars the total cost of the 17 was $306 billion dollars a record According to the 2014 National Climate Assessment which is a detailed report on climate change impacts on the US climate change is expected to increase the frequency and intensity of some natural disasters The amount of debris generated by natural disasters and the costs to manage it will likely increase as a result

After a natural disaster strikes a community working with federal and state officials and other stakeholders must conduct many debris management-related activities before it can fully recover These activities can include

bull Estimating debris quantities

bull Assessing debris management options

bull Triaging debris management

bull Segregating debris into different material andwaste streams

bull Identifying debris management sites and facilitiesand their available capacities

bullCollecting and hauling debris from the field andorcurb

bull Removing debris from waterways and sensitivehabitats

bull Sampling and analysis of debris

bull Characterizing debris for proper management

bull Obtaining emergency permits

bull Processing debris (eg Volume reductionrefrigerant removal)

bull Packaging and labeling debris for transport

bull Transporting debris to debris management sitesand facilities

bull Managing debris through reuse recyclingtreatment andor disposal

bull Monitoring incoming debris at the debrismanagement sites and facilities

bull Tracking debris from the original deposited point tofinal destination

bull Conducting debris management oversight activitiesincluding site visits inspection and environmentalmonitoring at debris management sites

bull Communicating with the public about debriscollection and other management activities

Pre-incident debris management planning by communities including forecasting debris volumes and types identifying available capacity developing debris management options and defining roles and responsibilities for all debris management-related activities can go a long way in mitigating the cost and time of recovery

CONTINUED ON PAGE 5

4

EXCLUSIVE ARTICLE

Pre-incident debris management planning can provide significant benefits

bull Saves valuable time and resources during aresponse to a disaster

bull Allows more efficient effective andenvironmentally responsible waste managementdecision-making during a disaster

bull Encourages stakeholders ( state local owners ofprivate storage treatment and disposal facilitiesresidents) to work together before disasteroccurs

bull Boosts the communityrsquos resiliency in the wake of adisaster and positions it for a quicker and less costlyrecovery to its pre-incident state

bull Enhances the communityrsquos adaptation to the debris-related impacts of climate-change

bull Minimally detracts from or otherwise impacts thebroader response and recovery efforts due to theefficient implementation of debris managementactivities

Based on lessons learned and insights from community officials who have conducted debris cleanup after a natural disaster the Environmental Protection Agency developed a comprehensive pre-incident planning process to help prepare communities for effective disaster debris management This recommended process guides communities through four steps

1 Conduct pre-planning activities 3 Keep the debris management plan updated

2 Develop a comprehensive pre-incident debris 4 Implement the debris management plan during a management plan natural disaster

Florida is unique in itrsquos vulnerability to Hurricanersquos There is hardly a community that hasnrsquot been effected in recent years by one The storms are getting more severe and the costs and clean-up post disaster more profound Planning for what needs to be done post-disaster has never been more important than now

Mike Marinan has a degree in Industrial Safety Engineering and over 35 years experience in the Safety and Risk Management field He has been employed by Public Risk Underwriters of Florida Inc for 17 years He holds an RMPE designation holds a General Lines 220 and 218 licenses is an active member of Central Florida PRIMA as well as an active member of ASSP and numerous related Safety and Health organizations He was a Governor appointee to the Task Force on Workplace Safety

5

Preferred would like to welcome the following new members

Village Community Development District 13

Lincoln Road Business Improvement District Inc

SPECIAL ARTICLE

Return to Work Policies Make Cents By Amy Siegel Oran Esquire Partner - Kelley Kronenberg

The hazards encountered on a daily basis by those working in municipalities often lead to injuries the restrictions from which are inherently difficult to accommodate

Despite the best training and safety equipment you may provide accidents will happen Carrying workersrsquo compensation coverage is not only legally required but also the best way to reduce the financial risk however relying on your carrier is not enough To keep your claim costs low and your premiums reasonable a carefully tailored well-executed return to work (RTW) policy is critical

To run an RTW program you need to craft one particular to the nature of your municipality and to your divisions within the town or city itself There are twelve core steps to guide you in the creation and implementation of a successful program

1 Implement a written RTW policy that is applied 7 Manage co-workers and their reactions evenly 8 Monitor actual work of injured employee on light duty

2 Decide what job to offer 9Accommodate medical appointments without3 Ensure clear knowledge of employeersquos limitations getting taken advantage of

4 Send light duty job offer letter via proper means 10 Respond to complaints of the injured worker

5 Manage the first day back with care 11 Decide how to pay the employee on light duty

6 Know what you cancannot say 12 Report earnings to WC Carrier

Restrictions often seen in the public service sector can make RTW more complicated but it is rarely impossible if the treating physician says your employee can RTW in some capacity find a way for she or he to do so using these helpful tips

Step 1 Implement a written RTW policy that is applied evenly the program as crafted should apply to all employees equally and be administered by one individual or team to monitor and ensure even-handed application For example if your waste and sanitation department workers are offered light duty the police officers must be as well

Step 2 Decide what job to offer you need not place the employee back in their prior role as is often impossible For example if a firefighter sustains a burn avoidance of heat is a common restriction look to a job far from the heat perhaps conducting investigations of suspicious fires or as a 911 operator even Sedentary or very light duty jobs are often best found in the administration department

Step 3 Ensure clear knowledge of employeersquos limitations the injured worker should bring forms to you with the doctorrsquos restrictions but if not received the insurance adjuster can provide you copies Lifting restrictions are the most common but with limitations on the length of time one may sit or stand or how often one must change positions arise regularly as well

Step 4 Send light duty job offer letter via proper means the law on this point is clear ndash you must notify the injured worker of the light duty in writing and via trackable means A phone call telling the injured worker to return will not suffice The letter need not state the job yoursquore offering the shifts or the pay just that you have a position within the restrictions and directing the employee to whom to report and when If the job is refused notify the adjuster immediately

6CONTINUED ON PAGE 7

SPECIAL ARTICLE

Step 5 Manage the first day back with care once the employee reports to work set forth the details of the assignment and your expectations Ensure the tasks are within the most recent restrictions give the information about the new role the shifts and the pay Certain positions within a town or city work a non-traditional schedule for example two days onone day off The light duty you have may not match that nor does it have to simply ensure the new schedule is clearly conveyed and understood

Step 6 Know what you cancannot say keeping the peace is critical and that begins with management It is incumbent upon supervisors to be role models Ask the employee how shehe is feeling or if shehe needs help to let you know Do not accuse or imply someone of faking an injury or exaggerating pain and do not broach the topic of lawyers lawsuits or litigation

Step 7 Manage co-workers and their reactions The aforementioned role models must not only lead by example but must play referee Do not allow co-workers to lob accusations such as those mentioned above or gossip Temper jealousy with comments like ldquoif you got hurt wouldnrsquot you want us to help you toordquo If co-workers are heard talking about money the injured worker is supposedly getting through the case end that conversation immediately as these claims are contagious the last thing you want is four more water plant operators alleging back injuries from changing out meters

Step 8 Monitor actual work of injured employee on light duty one who is working with pain is more prone to re-injure or exacerbate herhis condition Embarrassment bravado and thoughtlessness often leads the worker on light duty to not ask for help and instead act outside the restrictions For example strapping on a ldquogun beltrdquo with the multitude of items attached thereto when there are strict weight-based restrictions in place The pressure that may place on the low back and throughout the legs can increase pain and lead to tighter restrictions or a no work status which can and does increase the claim costs Management must watch to ensure the job is being done right as well as being done texting in the corner instead of investigating the new applicants from the police academy

Step 9 Accommodate medical appointments without getting taken advantage of inevitably some workers will try to take advantage You must allow your workers to go to their appointments however in the public sector work schedules usually do not match the standard office hours of a doctor Thus encourage your employees to make their PT and other appointments before shifts begin or whatever accommodations allow medical compliance without work absences

Step 10 Respond to complaints of the injured worker ldquoMy back hurts I need to go homerdquo ldquoIf your back hurts you need to go to the doctor because the job is within your restrictionsrdquo ldquoThis is work I am not allowed to dordquo ldquoLetrsquos go over your most recent restrictions to ensure your safetyrdquo The key is not to give in and not allow the employee to take advantage of the kindness of herhis employer

Step 11 Decide how to pay the employee on light duty you need not compensate at the same rate as prior to the accident and having some employees on a salary and some paid hourly can lead to confusion The goal to have the best financial outcome in your claim is to offer work that allows the employee to earn 80 of that which was being earned pre-injury Yoursquoll need to update the insurance adjuster on the RTW and shehe can assist in these calculations

Step 12 Report earnings to WC Carrier despite your best efforts there are circumstances under which the employee will still be entitled to some compensation from the insurance carrier it is incumbent upon you to ensure the adjuster has the weekly earnings to ensure benefits are properly and timely administered

The benefits of a well-run return to work program are multi-faceted Getting the worker back in the line of duty lessens the amount of money being paid out by the carrier and thus your immediate claim costs and future insurance rates Allowing the employee to sit at home leads to otherwise avoidable litigation the lawyer ads playing on TV during the day are enticing Hearing the local firm got $1M for another injured worker leads your employee to see dollar signs flashing in neon lights

7CONTINUED ON PAGE 8

SPECIAL ARTICLE

It also fosters wallowing and pain-focused behavior which is detrimental to psychological health and makes it harder to convince someone shehe is capable of working It is difficult if not impossible for many to work while taking medications as such the RTW lessens the amount of medication used and lowers the risk of opioid addiction Bringing your injured worker back makes it impossible for herhis attorney to argue shehe is too injured to work Lastly do not abandon your employee show you care by doing what you can to ensure shehe still has income to pay the rent and feed the family

It may not be an easy task to bring back an injured worker but the financial benefits can be significant and as noted it goes well-beyond the money it is beneficial to the physical and mental health of your employee too and that is a winwin

Amy Siegel Oran is a Partner of Kelley Kronenbergrsquos West Palm Beach office concentrating her practice exclusively on Workersrsquo Compensation defense She focuses her practice on the defense of workersrsquo compensation claims on behalf of employers insurance carriers self-insured corporations third party administrators and claims servicing agencies

Her background includes extensive experience with all aspects of Litigation and Appellate Law Amy is certified by the state of Florida to conduct Continuing Education courses and regularly presents seminars on a wide variety of legal matters She has served on the Workersrsquo Compensation Practice Committee for the Palm Beach County Bar Association playing an integral role in planning the annual Bench Bar Conference as well as speaking at the Conference on numerous occasions Additionally Amy provides regular training seminars to clients advising supervisors managers and employers on proper claim reporting and handling techniques

Amy is also very active with the South Florida affiliate of Susan G Komen After three years on the organizationrsquos Board of Directors Amy now proudly serves as Vice President for the Board of Directors for both the Executive Board and Executive Committees of Susan G Komen Florida

8

This training resource gives our members unlimited access to Training Network NOWrsquos extensive video streaming library of videos covering workplace safety driving safety construction safety and human resourcelegal compliance Video titles are available in both English and Spanish to support your organizations training initiatives Features of Training Network NOW streaming video service include

bull An easily accessible extensive video library of over 680 videos

bull Video course materials to include quizzes completion certificates and leader guides

bull Tablet amp Mobile Capable ndash Now you can watch videos on your preferred mobile device such as tabletsand smartphones

As part of Preferredrsquos initiative to provide continuous improvements for productsservices offered to our members we highly encourage you to considering utilizing the Training Network NOW video streaming service to assist you with your safety and risk management training needs

To learn more on how your organization can take advantage of this exciting free training resource please contact Mike Stephens Senior Loss Control Specialist at Ph 321 832-1658Email mstephenspublicrisk com or your respective regional Loss Control Consultant

Video Streaming Service for Preferred Members

NEWS EXTRA

That Settles It The Florida Supreme Court Resolves Conflict and Extends Stand Your Ground Immunity Protections to Law Enforcement Officers By J David Marsey Esquire - Rumberger Kirk amp Caldwell

The debate about Floridarsquos statutory immunity from criminal and civil liability commonly referred to as the ldquoStand Your Groundrdquo law has reached far and wide Proponents and opponents alike have opined that the law needs revision and courts have disagreed over the application of its terms One area of frequent disagreement involves the application of the immunity to law enforcement officers acting within the course and scope of their employment

The Florida Supreme Court has finally spoken and in doing so resolved the conflict between Florida District Courts of Appeal After consideration of two conflicting lower court decisions and interpreting the law itself the Court held that the clear and unambiguous statutory language affords law enforcement officers the same immunity provisions available to the public at large1

At the core of this dispute lies two similar but substantively different statutes Section 77605 Florida Statutes provides that a law enforcement officer need not retreat or desist from efforts to make a lawful arrest because of actual or threatened resistance from the person to be arrested It also authorizes an officer to use any force which is (1) reasonably necessary to defend himself or herself or another person from harm while making the arrest (2) necessarily committed in retaking an escaped felon and (3) necessarily committed in arresting a felon fleeing from justice Section 776032 Florida Statutes Floridarsquos Stand Your Ground law provides that a ldquopersonrdquo who uses or threatens to use lawful force is immune from criminal prosecution and civil action for the use or threatened use of force if enumerated circumstances exist

The interplay between these two statutes was examined by the Second District Court of Appeal in State v Caamano2 in 2012 In that case an officer was criminally charged with attempted battery and unsuccessfully asserted Stand Your Ground immunity pursuant to Section 776032 In denying the officerrsquos entitlement to immunity from prosecution the Court reasoned that the more specific statutory language applicable to law enforcement officers contained in Section 77605 Florida Statutes controlled over the more general provisions contained in Section 776032 that applied to the public at large Therefore the court reasoned the Stand Your Ground immunity provision was unavailable to an on-duty police officer for force used in the making of an arrest

The issue was revisited by the Fourth District Court of Appeal in State v Peraza 3 in 2017 In that case an officer successfully moved to dismiss an indictment against him for manslaughter with a firearm arising from the officer shooting a suspect who pointed an air rifle at him The State appealed the dismissal based on the Caamano Courtrsquos reasoning The Fourth DCA disagreed with Caamano and affirmed the dismissal of the indictment In that case the court reasoned that an officer using force while making an arrest was not limited by the specific statute applying to officers but was also entitled to seek immunity under Section 776032 Florida Statutes The Peraza Court held that despite the specific statute applying to law enforcement officers are also ldquopersonsrdquo under the law and that nothing under Floridarsquos Stand Your Ground law excludes an officer making an arrest from the immunity provisions available to the general public The Peraza Court certified the conflict with Caamano and certified the question as one of great public importance thus paving the way for review by the Florida Supreme Court

In its review of Peraza the Florida Supreme Court recognized the Caamano Courtrsquos efforts to harmonize different statutory provisions that applied to law enforcement and the more general Stand Your Ground immunity statute Treating the case as one of statutory construction the Supreme Court agreed with the lower courtrsquos rationale and found that the two statutory provisions provided overlapping protections for law enforcement officers making an arrest A noteworthy distinction recognized by the Supreme Court but not considered by either of the lower courts was the distinction between a defense and an immunity

9CONTINUED ON PAGE 10

SPECIAL ARTICLE

While the more specific law enforcement statue provides a defense for the use of force during an arrest it does not include any immunity provisions Conversely the Stand Your Ground statute provides an ldquoimmunity from prosecutionrdquo that is afforded to ldquoany personrdquo who uses lawful force under enumerated circumstances Since there is no language excluding a law enforcement officer from the clear and unambiguous application to a ldquopersonrdquo a law enforcement officer is entitled to assert the Stand Your Ground immunity defense

The Supreme Courtrsquos decision reaffirms that ldquoofficers are people toordquo and that they are entitled to the full use of the Stand Your Ground immunity defense applicable to the public at large whether they are making an arrest or not The importance of this decision cannot be overstated because this now provides officers viable legal defenses to prevent lengthy and costly criminal proceedings if they are able to show through a pre-trial hearing an entitlement to immunity Although the Supreme Court in Peraza addressed only the criminal charges before it Floridarsquos Stand Your Ground immunity provisions provides for immunity for both criminal and civil liability Therefore depending on the specific facts of the case officers facing civil actions for the excessive use of force may have an additional opportunity to obtain dismissal prior to trial and the denial of immunity may also provide the potential for pre-trial appellate review Law enforcement executives and their counsel should familiarize themselves with these new standards and should continue to monitor this developing area of law

1 State v Peraza Case No SC17-1978 (Fla Dec 13 2018) 2 105 So 3d 18 (Fla 2d DCA 2012) 3 226 So 3d 937 (Fla 4th DCA 2017)

J David Marsey is a former police officer investigator and prosecutor and is a partner at the law firm of Rumberger Kirk amp Caldwell in Tallahassee Florida He defends and advises corporations government entities and their employees on casualty employment and constitutional issues throughout the state For more information please visit wwwrumbergercom

10

We are looking forward to seeing you there

2019 MEMBER EDUCATION DAY

April 4th 2019

Orlando World Center Marriott

BREAKTIME FUN -N- GAMES

Hurricane History Trivia 1 What hurricane holds the record for smallest eye

a Wilma b Andrew c Allen d Betty

2 What hurricane holds the record for longest endurance

a Alicia b Cesar c John d Celia

3 What hurricane holds the record for being the largest storm in diameter

a Ingrid b Erika c Hugo d Sandy

4 What Atlantic hurricane holds the record for traveling the furthest distance

a Cloe b Matthew c Faith d Engelbert

5 What Atlantic hurricane holds the record for longest duration as a category 5

a Irma b Otto c Rita d Charley

6 What year holds the record for the least amount of storms to form in a season

a 1983 b 1990 c 2012 d 1969

7 Who is the individual that is given credit as being the first to name hurricanes

a Louis Huricain b King Edward c Clement Wragge d Richard Nixon

8 Who is the individual given credit for being the first to fly safely through a hurricane

a Neal Armstrong b Chuck Yeager c Joseph Duckworth d Amelia Earhart

9 What year holds the record for most named storms to form in one storm season in the Atlantic

a 1974 b 2005 c 1998 d 2004

10 What hurricane holds the record for highest maximum sustained wind speed and lowest barometric pressure

a Allen b Wilma c Mitch d Patricia

11  Where did the word lsquoHurricanerdquo derive from

a Nickname of a famous Caribbean pirate b Mayan god of wind and storm c A mythical Norse sea creature

12 Hurricanes use to be given female names but are now given male and female names On what year did this begin

a 2000 b 1979 c 1998 d 1986

KEY STAFF CONTACTSPlease visit wwwpgitorgResourcesSpring 2019Article Index for Hurricane History Trivia answer key

As a member of Preferred your first call should always be to your agent if however you need help beyond your agent please feel free to contact us as indicated below

Marketing Operations Loss Control Claims marketingpublicriskcom jmartinpublicriskcom mstephenspublicriskcom ftuckerpgcs-tpacom 321-832-1455 321-832-1691 321-832-1658 321-832-1401 Kurt Heyman Jennifer Martin Mike Stephens Fred Tucker

11

Standard Presort

US Postage PAID

Permit 1979 Orlando FL

P O BOX 958455 - Lake Mary FL 32795-8455

Page 3: Preferred News Spring 2019Public Risk Underwriters of Florida, Inc. During Florida’s hurricane season employees are exposed to increased risk of injury. Employees that are most likely

3

EXCLUSIVE ARTICLE

Hurricane season begins June 1st and runs through November 30th with the peak during late August We have learned over the last several years that Hurricanes are highly unpredictable and can change direction at any given time Being prepared is of the utmost importance Below you will find important terms to know in the wake of a storm and some tips for pre and post storm action to include claims reporting

Important Terms Tropical Depression This is an atmospheric low-pressure system originating in the tropics Specifically a tropical cyclone in

which the maximum sustained wind speed is 38 miles per hour or less

Tropical Storm This is a storm which originates from the tropics with sustained winds ranging from 39 - 73 miles per hour

Hurricane Watch This means hurricane conditions are possible within the specified area Hurricane Warning The hurricane warning is issued 36 hours in advance of the anticipated onset of tropical-storm-force winds Hurricane This is a storm that originates in the tropics with sustained winds in excess of 73 miles per hour

Pre-Storm The best case scenario is to be proactive Here are a few tips

1 Prepare an emergency response plan - Prepare a disaster recovery and business continuity plan that can be easilyimplemented before a hurricane This plan should be reviewed and updated annually

2 Review your property policy for coverages deductibles etc - One can never truly prepare for a hurricane Different stormscarry different challenges- varying wind speeds flood versus surge service interruption ingress-egress issues tornadosetc However it is important to have a designated person in charge of a claim whether itrsquos a risk manager city manager ormaintenance professional This person should review and understand the coverage agreement-what it covers and what itdoesnrsquot If there are misunderstandings or items which appear unclear a discussion with your agent maybe necessary

3 Compile a list of resources for post storm cleanup and repair (contractors restoration companies etc) - Place vendors onnotice during hurricane season requesting they assist in the event of a minor or major event Acting quickly can mitigate yourdamages Preferred has mailed Hurricane Kits to property members that includes a list of preferred vendors

Post-Storm In the event you have storm related damages you should do the following

1 Assess damages and prioritize by severity

2 Mitigate damages whenever possible

3 Report claims timely by the following

bull Phone 1-800-237-6617 | Fax 321-832-1448 | Email Hurricanepgcs-tpacom

bull Contact Fred Tucker Liability Claims Manager at 1-800-237-6617 ext 4000 or ftuckerpgcs-tpacom

Post -Storm Claims Handling 1 Once the claim is reported to PGCS they will engage Engle Martin amp Assoc to contact the member to discuss the claims

process and schedule inspections as needed

2 Engle Martin works closely with PGCS and will provide status updates payment recommendations to include advancepayments when necessary and settlement recommendations

3 Engle Martin will work closely with the member throughout the claims process until conclusion

Working with FEMA Our recommendation for working with FEMA is to complete your application and then work with Preferred via Engle Martin PGCS adjusters through the claims process before submitting any documentation to FEMA Once your claim is concluded with Preferred a detailed payment directive letter will be provided and this will include a damages deductible worksheet that can be provided to FEMA outlining the entirety of your claim

If you have questions about the claims process please contact your agent or Fred Tucker at PGCS

Hurricane Season 2019 Are You Ready

EXCLUSIVE ARTICLE

Hurricane Debris Plan for It  By Mike Marinan Director of Member Services - Public Risk Underwriters of Florida Inc

Debris created by storms can often times be overwhelming in its magnitude Debris management and removal are invariably among the most complex and costly problems following a disaster Over 1000000 cubic feet of debris were created by Hurricane Matthew in Flagler and St Johns counties alone When asked if he had any advice regarding the post hurricane debris Joe Meyer the recently retired Risk Manager at Flagler County responded ldquoMake sure you know where your going to put it plan for itrdquo

The cost of debris removal can mean the difference between successfully managing the post hurricane or not Cleaning up this debris can be time-consuming and costly extending the recovery from the disaster According to FEMA Hurricane Katrina one of the most catastrophic natural disasters in history resulted in more than 99 million cubic yards of debris totaling greater than $37 billion in debris removal costs

In 2017 there were 17 disasters of over $1billion dollars the total cost of the 17 was $306 billion dollars a record According to the 2014 National Climate Assessment which is a detailed report on climate change impacts on the US climate change is expected to increase the frequency and intensity of some natural disasters The amount of debris generated by natural disasters and the costs to manage it will likely increase as a result

After a natural disaster strikes a community working with federal and state officials and other stakeholders must conduct many debris management-related activities before it can fully recover These activities can include

bull Estimating debris quantities

bull Assessing debris management options

bull Triaging debris management

bull Segregating debris into different material andwaste streams

bull Identifying debris management sites and facilitiesand their available capacities

bullCollecting and hauling debris from the field andorcurb

bull Removing debris from waterways and sensitivehabitats

bull Sampling and analysis of debris

bull Characterizing debris for proper management

bull Obtaining emergency permits

bull Processing debris (eg Volume reductionrefrigerant removal)

bull Packaging and labeling debris for transport

bull Transporting debris to debris management sitesand facilities

bull Managing debris through reuse recyclingtreatment andor disposal

bull Monitoring incoming debris at the debrismanagement sites and facilities

bull Tracking debris from the original deposited point tofinal destination

bull Conducting debris management oversight activitiesincluding site visits inspection and environmentalmonitoring at debris management sites

bull Communicating with the public about debriscollection and other management activities

Pre-incident debris management planning by communities including forecasting debris volumes and types identifying available capacity developing debris management options and defining roles and responsibilities for all debris management-related activities can go a long way in mitigating the cost and time of recovery

CONTINUED ON PAGE 5

4

EXCLUSIVE ARTICLE

Pre-incident debris management planning can provide significant benefits

bull Saves valuable time and resources during aresponse to a disaster

bull Allows more efficient effective andenvironmentally responsible waste managementdecision-making during a disaster

bull Encourages stakeholders ( state local owners ofprivate storage treatment and disposal facilitiesresidents) to work together before disasteroccurs

bull Boosts the communityrsquos resiliency in the wake of adisaster and positions it for a quicker and less costlyrecovery to its pre-incident state

bull Enhances the communityrsquos adaptation to the debris-related impacts of climate-change

bull Minimally detracts from or otherwise impacts thebroader response and recovery efforts due to theefficient implementation of debris managementactivities

Based on lessons learned and insights from community officials who have conducted debris cleanup after a natural disaster the Environmental Protection Agency developed a comprehensive pre-incident planning process to help prepare communities for effective disaster debris management This recommended process guides communities through four steps

1 Conduct pre-planning activities 3 Keep the debris management plan updated

2 Develop a comprehensive pre-incident debris 4 Implement the debris management plan during a management plan natural disaster

Florida is unique in itrsquos vulnerability to Hurricanersquos There is hardly a community that hasnrsquot been effected in recent years by one The storms are getting more severe and the costs and clean-up post disaster more profound Planning for what needs to be done post-disaster has never been more important than now

Mike Marinan has a degree in Industrial Safety Engineering and over 35 years experience in the Safety and Risk Management field He has been employed by Public Risk Underwriters of Florida Inc for 17 years He holds an RMPE designation holds a General Lines 220 and 218 licenses is an active member of Central Florida PRIMA as well as an active member of ASSP and numerous related Safety and Health organizations He was a Governor appointee to the Task Force on Workplace Safety

5

Preferred would like to welcome the following new members

Village Community Development District 13

Lincoln Road Business Improvement District Inc

SPECIAL ARTICLE

Return to Work Policies Make Cents By Amy Siegel Oran Esquire Partner - Kelley Kronenberg

The hazards encountered on a daily basis by those working in municipalities often lead to injuries the restrictions from which are inherently difficult to accommodate

Despite the best training and safety equipment you may provide accidents will happen Carrying workersrsquo compensation coverage is not only legally required but also the best way to reduce the financial risk however relying on your carrier is not enough To keep your claim costs low and your premiums reasonable a carefully tailored well-executed return to work (RTW) policy is critical

To run an RTW program you need to craft one particular to the nature of your municipality and to your divisions within the town or city itself There are twelve core steps to guide you in the creation and implementation of a successful program

1 Implement a written RTW policy that is applied 7 Manage co-workers and their reactions evenly 8 Monitor actual work of injured employee on light duty

2 Decide what job to offer 9Accommodate medical appointments without3 Ensure clear knowledge of employeersquos limitations getting taken advantage of

4 Send light duty job offer letter via proper means 10 Respond to complaints of the injured worker

5 Manage the first day back with care 11 Decide how to pay the employee on light duty

6 Know what you cancannot say 12 Report earnings to WC Carrier

Restrictions often seen in the public service sector can make RTW more complicated but it is rarely impossible if the treating physician says your employee can RTW in some capacity find a way for she or he to do so using these helpful tips

Step 1 Implement a written RTW policy that is applied evenly the program as crafted should apply to all employees equally and be administered by one individual or team to monitor and ensure even-handed application For example if your waste and sanitation department workers are offered light duty the police officers must be as well

Step 2 Decide what job to offer you need not place the employee back in their prior role as is often impossible For example if a firefighter sustains a burn avoidance of heat is a common restriction look to a job far from the heat perhaps conducting investigations of suspicious fires or as a 911 operator even Sedentary or very light duty jobs are often best found in the administration department

Step 3 Ensure clear knowledge of employeersquos limitations the injured worker should bring forms to you with the doctorrsquos restrictions but if not received the insurance adjuster can provide you copies Lifting restrictions are the most common but with limitations on the length of time one may sit or stand or how often one must change positions arise regularly as well

Step 4 Send light duty job offer letter via proper means the law on this point is clear ndash you must notify the injured worker of the light duty in writing and via trackable means A phone call telling the injured worker to return will not suffice The letter need not state the job yoursquore offering the shifts or the pay just that you have a position within the restrictions and directing the employee to whom to report and when If the job is refused notify the adjuster immediately

6CONTINUED ON PAGE 7

SPECIAL ARTICLE

Step 5 Manage the first day back with care once the employee reports to work set forth the details of the assignment and your expectations Ensure the tasks are within the most recent restrictions give the information about the new role the shifts and the pay Certain positions within a town or city work a non-traditional schedule for example two days onone day off The light duty you have may not match that nor does it have to simply ensure the new schedule is clearly conveyed and understood

Step 6 Know what you cancannot say keeping the peace is critical and that begins with management It is incumbent upon supervisors to be role models Ask the employee how shehe is feeling or if shehe needs help to let you know Do not accuse or imply someone of faking an injury or exaggerating pain and do not broach the topic of lawyers lawsuits or litigation

Step 7 Manage co-workers and their reactions The aforementioned role models must not only lead by example but must play referee Do not allow co-workers to lob accusations such as those mentioned above or gossip Temper jealousy with comments like ldquoif you got hurt wouldnrsquot you want us to help you toordquo If co-workers are heard talking about money the injured worker is supposedly getting through the case end that conversation immediately as these claims are contagious the last thing you want is four more water plant operators alleging back injuries from changing out meters

Step 8 Monitor actual work of injured employee on light duty one who is working with pain is more prone to re-injure or exacerbate herhis condition Embarrassment bravado and thoughtlessness often leads the worker on light duty to not ask for help and instead act outside the restrictions For example strapping on a ldquogun beltrdquo with the multitude of items attached thereto when there are strict weight-based restrictions in place The pressure that may place on the low back and throughout the legs can increase pain and lead to tighter restrictions or a no work status which can and does increase the claim costs Management must watch to ensure the job is being done right as well as being done texting in the corner instead of investigating the new applicants from the police academy

Step 9 Accommodate medical appointments without getting taken advantage of inevitably some workers will try to take advantage You must allow your workers to go to their appointments however in the public sector work schedules usually do not match the standard office hours of a doctor Thus encourage your employees to make their PT and other appointments before shifts begin or whatever accommodations allow medical compliance without work absences

Step 10 Respond to complaints of the injured worker ldquoMy back hurts I need to go homerdquo ldquoIf your back hurts you need to go to the doctor because the job is within your restrictionsrdquo ldquoThis is work I am not allowed to dordquo ldquoLetrsquos go over your most recent restrictions to ensure your safetyrdquo The key is not to give in and not allow the employee to take advantage of the kindness of herhis employer

Step 11 Decide how to pay the employee on light duty you need not compensate at the same rate as prior to the accident and having some employees on a salary and some paid hourly can lead to confusion The goal to have the best financial outcome in your claim is to offer work that allows the employee to earn 80 of that which was being earned pre-injury Yoursquoll need to update the insurance adjuster on the RTW and shehe can assist in these calculations

Step 12 Report earnings to WC Carrier despite your best efforts there are circumstances under which the employee will still be entitled to some compensation from the insurance carrier it is incumbent upon you to ensure the adjuster has the weekly earnings to ensure benefits are properly and timely administered

The benefits of a well-run return to work program are multi-faceted Getting the worker back in the line of duty lessens the amount of money being paid out by the carrier and thus your immediate claim costs and future insurance rates Allowing the employee to sit at home leads to otherwise avoidable litigation the lawyer ads playing on TV during the day are enticing Hearing the local firm got $1M for another injured worker leads your employee to see dollar signs flashing in neon lights

7CONTINUED ON PAGE 8

SPECIAL ARTICLE

It also fosters wallowing and pain-focused behavior which is detrimental to psychological health and makes it harder to convince someone shehe is capable of working It is difficult if not impossible for many to work while taking medications as such the RTW lessens the amount of medication used and lowers the risk of opioid addiction Bringing your injured worker back makes it impossible for herhis attorney to argue shehe is too injured to work Lastly do not abandon your employee show you care by doing what you can to ensure shehe still has income to pay the rent and feed the family

It may not be an easy task to bring back an injured worker but the financial benefits can be significant and as noted it goes well-beyond the money it is beneficial to the physical and mental health of your employee too and that is a winwin

Amy Siegel Oran is a Partner of Kelley Kronenbergrsquos West Palm Beach office concentrating her practice exclusively on Workersrsquo Compensation defense She focuses her practice on the defense of workersrsquo compensation claims on behalf of employers insurance carriers self-insured corporations third party administrators and claims servicing agencies

Her background includes extensive experience with all aspects of Litigation and Appellate Law Amy is certified by the state of Florida to conduct Continuing Education courses and regularly presents seminars on a wide variety of legal matters She has served on the Workersrsquo Compensation Practice Committee for the Palm Beach County Bar Association playing an integral role in planning the annual Bench Bar Conference as well as speaking at the Conference on numerous occasions Additionally Amy provides regular training seminars to clients advising supervisors managers and employers on proper claim reporting and handling techniques

Amy is also very active with the South Florida affiliate of Susan G Komen After three years on the organizationrsquos Board of Directors Amy now proudly serves as Vice President for the Board of Directors for both the Executive Board and Executive Committees of Susan G Komen Florida

8

This training resource gives our members unlimited access to Training Network NOWrsquos extensive video streaming library of videos covering workplace safety driving safety construction safety and human resourcelegal compliance Video titles are available in both English and Spanish to support your organizations training initiatives Features of Training Network NOW streaming video service include

bull An easily accessible extensive video library of over 680 videos

bull Video course materials to include quizzes completion certificates and leader guides

bull Tablet amp Mobile Capable ndash Now you can watch videos on your preferred mobile device such as tabletsand smartphones

As part of Preferredrsquos initiative to provide continuous improvements for productsservices offered to our members we highly encourage you to considering utilizing the Training Network NOW video streaming service to assist you with your safety and risk management training needs

To learn more on how your organization can take advantage of this exciting free training resource please contact Mike Stephens Senior Loss Control Specialist at Ph 321 832-1658Email mstephenspublicrisk com or your respective regional Loss Control Consultant

Video Streaming Service for Preferred Members

NEWS EXTRA

That Settles It The Florida Supreme Court Resolves Conflict and Extends Stand Your Ground Immunity Protections to Law Enforcement Officers By J David Marsey Esquire - Rumberger Kirk amp Caldwell

The debate about Floridarsquos statutory immunity from criminal and civil liability commonly referred to as the ldquoStand Your Groundrdquo law has reached far and wide Proponents and opponents alike have opined that the law needs revision and courts have disagreed over the application of its terms One area of frequent disagreement involves the application of the immunity to law enforcement officers acting within the course and scope of their employment

The Florida Supreme Court has finally spoken and in doing so resolved the conflict between Florida District Courts of Appeal After consideration of two conflicting lower court decisions and interpreting the law itself the Court held that the clear and unambiguous statutory language affords law enforcement officers the same immunity provisions available to the public at large1

At the core of this dispute lies two similar but substantively different statutes Section 77605 Florida Statutes provides that a law enforcement officer need not retreat or desist from efforts to make a lawful arrest because of actual or threatened resistance from the person to be arrested It also authorizes an officer to use any force which is (1) reasonably necessary to defend himself or herself or another person from harm while making the arrest (2) necessarily committed in retaking an escaped felon and (3) necessarily committed in arresting a felon fleeing from justice Section 776032 Florida Statutes Floridarsquos Stand Your Ground law provides that a ldquopersonrdquo who uses or threatens to use lawful force is immune from criminal prosecution and civil action for the use or threatened use of force if enumerated circumstances exist

The interplay between these two statutes was examined by the Second District Court of Appeal in State v Caamano2 in 2012 In that case an officer was criminally charged with attempted battery and unsuccessfully asserted Stand Your Ground immunity pursuant to Section 776032 In denying the officerrsquos entitlement to immunity from prosecution the Court reasoned that the more specific statutory language applicable to law enforcement officers contained in Section 77605 Florida Statutes controlled over the more general provisions contained in Section 776032 that applied to the public at large Therefore the court reasoned the Stand Your Ground immunity provision was unavailable to an on-duty police officer for force used in the making of an arrest

The issue was revisited by the Fourth District Court of Appeal in State v Peraza 3 in 2017 In that case an officer successfully moved to dismiss an indictment against him for manslaughter with a firearm arising from the officer shooting a suspect who pointed an air rifle at him The State appealed the dismissal based on the Caamano Courtrsquos reasoning The Fourth DCA disagreed with Caamano and affirmed the dismissal of the indictment In that case the court reasoned that an officer using force while making an arrest was not limited by the specific statute applying to officers but was also entitled to seek immunity under Section 776032 Florida Statutes The Peraza Court held that despite the specific statute applying to law enforcement officers are also ldquopersonsrdquo under the law and that nothing under Floridarsquos Stand Your Ground law excludes an officer making an arrest from the immunity provisions available to the general public The Peraza Court certified the conflict with Caamano and certified the question as one of great public importance thus paving the way for review by the Florida Supreme Court

In its review of Peraza the Florida Supreme Court recognized the Caamano Courtrsquos efforts to harmonize different statutory provisions that applied to law enforcement and the more general Stand Your Ground immunity statute Treating the case as one of statutory construction the Supreme Court agreed with the lower courtrsquos rationale and found that the two statutory provisions provided overlapping protections for law enforcement officers making an arrest A noteworthy distinction recognized by the Supreme Court but not considered by either of the lower courts was the distinction between a defense and an immunity

9CONTINUED ON PAGE 10

SPECIAL ARTICLE

While the more specific law enforcement statue provides a defense for the use of force during an arrest it does not include any immunity provisions Conversely the Stand Your Ground statute provides an ldquoimmunity from prosecutionrdquo that is afforded to ldquoany personrdquo who uses lawful force under enumerated circumstances Since there is no language excluding a law enforcement officer from the clear and unambiguous application to a ldquopersonrdquo a law enforcement officer is entitled to assert the Stand Your Ground immunity defense

The Supreme Courtrsquos decision reaffirms that ldquoofficers are people toordquo and that they are entitled to the full use of the Stand Your Ground immunity defense applicable to the public at large whether they are making an arrest or not The importance of this decision cannot be overstated because this now provides officers viable legal defenses to prevent lengthy and costly criminal proceedings if they are able to show through a pre-trial hearing an entitlement to immunity Although the Supreme Court in Peraza addressed only the criminal charges before it Floridarsquos Stand Your Ground immunity provisions provides for immunity for both criminal and civil liability Therefore depending on the specific facts of the case officers facing civil actions for the excessive use of force may have an additional opportunity to obtain dismissal prior to trial and the denial of immunity may also provide the potential for pre-trial appellate review Law enforcement executives and their counsel should familiarize themselves with these new standards and should continue to monitor this developing area of law

1 State v Peraza Case No SC17-1978 (Fla Dec 13 2018) 2 105 So 3d 18 (Fla 2d DCA 2012) 3 226 So 3d 937 (Fla 4th DCA 2017)

J David Marsey is a former police officer investigator and prosecutor and is a partner at the law firm of Rumberger Kirk amp Caldwell in Tallahassee Florida He defends and advises corporations government entities and their employees on casualty employment and constitutional issues throughout the state For more information please visit wwwrumbergercom

10

We are looking forward to seeing you there

2019 MEMBER EDUCATION DAY

April 4th 2019

Orlando World Center Marriott

BREAKTIME FUN -N- GAMES

Hurricane History Trivia 1 What hurricane holds the record for smallest eye

a Wilma b Andrew c Allen d Betty

2 What hurricane holds the record for longest endurance

a Alicia b Cesar c John d Celia

3 What hurricane holds the record for being the largest storm in diameter

a Ingrid b Erika c Hugo d Sandy

4 What Atlantic hurricane holds the record for traveling the furthest distance

a Cloe b Matthew c Faith d Engelbert

5 What Atlantic hurricane holds the record for longest duration as a category 5

a Irma b Otto c Rita d Charley

6 What year holds the record for the least amount of storms to form in a season

a 1983 b 1990 c 2012 d 1969

7 Who is the individual that is given credit as being the first to name hurricanes

a Louis Huricain b King Edward c Clement Wragge d Richard Nixon

8 Who is the individual given credit for being the first to fly safely through a hurricane

a Neal Armstrong b Chuck Yeager c Joseph Duckworth d Amelia Earhart

9 What year holds the record for most named storms to form in one storm season in the Atlantic

a 1974 b 2005 c 1998 d 2004

10 What hurricane holds the record for highest maximum sustained wind speed and lowest barometric pressure

a Allen b Wilma c Mitch d Patricia

11  Where did the word lsquoHurricanerdquo derive from

a Nickname of a famous Caribbean pirate b Mayan god of wind and storm c A mythical Norse sea creature

12 Hurricanes use to be given female names but are now given male and female names On what year did this begin

a 2000 b 1979 c 1998 d 1986

KEY STAFF CONTACTSPlease visit wwwpgitorgResourcesSpring 2019Article Index for Hurricane History Trivia answer key

As a member of Preferred your first call should always be to your agent if however you need help beyond your agent please feel free to contact us as indicated below

Marketing Operations Loss Control Claims marketingpublicriskcom jmartinpublicriskcom mstephenspublicriskcom ftuckerpgcs-tpacom 321-832-1455 321-832-1691 321-832-1658 321-832-1401 Kurt Heyman Jennifer Martin Mike Stephens Fred Tucker

11

Standard Presort

US Postage PAID

Permit 1979 Orlando FL

P O BOX 958455 - Lake Mary FL 32795-8455

Page 4: Preferred News Spring 2019Public Risk Underwriters of Florida, Inc. During Florida’s hurricane season employees are exposed to increased risk of injury. Employees that are most likely

EXCLUSIVE ARTICLE

Hurricane Debris Plan for It  By Mike Marinan Director of Member Services - Public Risk Underwriters of Florida Inc

Debris created by storms can often times be overwhelming in its magnitude Debris management and removal are invariably among the most complex and costly problems following a disaster Over 1000000 cubic feet of debris were created by Hurricane Matthew in Flagler and St Johns counties alone When asked if he had any advice regarding the post hurricane debris Joe Meyer the recently retired Risk Manager at Flagler County responded ldquoMake sure you know where your going to put it plan for itrdquo

The cost of debris removal can mean the difference between successfully managing the post hurricane or not Cleaning up this debris can be time-consuming and costly extending the recovery from the disaster According to FEMA Hurricane Katrina one of the most catastrophic natural disasters in history resulted in more than 99 million cubic yards of debris totaling greater than $37 billion in debris removal costs

In 2017 there were 17 disasters of over $1billion dollars the total cost of the 17 was $306 billion dollars a record According to the 2014 National Climate Assessment which is a detailed report on climate change impacts on the US climate change is expected to increase the frequency and intensity of some natural disasters The amount of debris generated by natural disasters and the costs to manage it will likely increase as a result

After a natural disaster strikes a community working with federal and state officials and other stakeholders must conduct many debris management-related activities before it can fully recover These activities can include

bull Estimating debris quantities

bull Assessing debris management options

bull Triaging debris management

bull Segregating debris into different material andwaste streams

bull Identifying debris management sites and facilitiesand their available capacities

bullCollecting and hauling debris from the field andorcurb

bull Removing debris from waterways and sensitivehabitats

bull Sampling and analysis of debris

bull Characterizing debris for proper management

bull Obtaining emergency permits

bull Processing debris (eg Volume reductionrefrigerant removal)

bull Packaging and labeling debris for transport

bull Transporting debris to debris management sitesand facilities

bull Managing debris through reuse recyclingtreatment andor disposal

bull Monitoring incoming debris at the debrismanagement sites and facilities

bull Tracking debris from the original deposited point tofinal destination

bull Conducting debris management oversight activitiesincluding site visits inspection and environmentalmonitoring at debris management sites

bull Communicating with the public about debriscollection and other management activities

Pre-incident debris management planning by communities including forecasting debris volumes and types identifying available capacity developing debris management options and defining roles and responsibilities for all debris management-related activities can go a long way in mitigating the cost and time of recovery

CONTINUED ON PAGE 5

4

EXCLUSIVE ARTICLE

Pre-incident debris management planning can provide significant benefits

bull Saves valuable time and resources during aresponse to a disaster

bull Allows more efficient effective andenvironmentally responsible waste managementdecision-making during a disaster

bull Encourages stakeholders ( state local owners ofprivate storage treatment and disposal facilitiesresidents) to work together before disasteroccurs

bull Boosts the communityrsquos resiliency in the wake of adisaster and positions it for a quicker and less costlyrecovery to its pre-incident state

bull Enhances the communityrsquos adaptation to the debris-related impacts of climate-change

bull Minimally detracts from or otherwise impacts thebroader response and recovery efforts due to theefficient implementation of debris managementactivities

Based on lessons learned and insights from community officials who have conducted debris cleanup after a natural disaster the Environmental Protection Agency developed a comprehensive pre-incident planning process to help prepare communities for effective disaster debris management This recommended process guides communities through four steps

1 Conduct pre-planning activities 3 Keep the debris management plan updated

2 Develop a comprehensive pre-incident debris 4 Implement the debris management plan during a management plan natural disaster

Florida is unique in itrsquos vulnerability to Hurricanersquos There is hardly a community that hasnrsquot been effected in recent years by one The storms are getting more severe and the costs and clean-up post disaster more profound Planning for what needs to be done post-disaster has never been more important than now

Mike Marinan has a degree in Industrial Safety Engineering and over 35 years experience in the Safety and Risk Management field He has been employed by Public Risk Underwriters of Florida Inc for 17 years He holds an RMPE designation holds a General Lines 220 and 218 licenses is an active member of Central Florida PRIMA as well as an active member of ASSP and numerous related Safety and Health organizations He was a Governor appointee to the Task Force on Workplace Safety

5

Preferred would like to welcome the following new members

Village Community Development District 13

Lincoln Road Business Improvement District Inc

SPECIAL ARTICLE

Return to Work Policies Make Cents By Amy Siegel Oran Esquire Partner - Kelley Kronenberg

The hazards encountered on a daily basis by those working in municipalities often lead to injuries the restrictions from which are inherently difficult to accommodate

Despite the best training and safety equipment you may provide accidents will happen Carrying workersrsquo compensation coverage is not only legally required but also the best way to reduce the financial risk however relying on your carrier is not enough To keep your claim costs low and your premiums reasonable a carefully tailored well-executed return to work (RTW) policy is critical

To run an RTW program you need to craft one particular to the nature of your municipality and to your divisions within the town or city itself There are twelve core steps to guide you in the creation and implementation of a successful program

1 Implement a written RTW policy that is applied 7 Manage co-workers and their reactions evenly 8 Monitor actual work of injured employee on light duty

2 Decide what job to offer 9Accommodate medical appointments without3 Ensure clear knowledge of employeersquos limitations getting taken advantage of

4 Send light duty job offer letter via proper means 10 Respond to complaints of the injured worker

5 Manage the first day back with care 11 Decide how to pay the employee on light duty

6 Know what you cancannot say 12 Report earnings to WC Carrier

Restrictions often seen in the public service sector can make RTW more complicated but it is rarely impossible if the treating physician says your employee can RTW in some capacity find a way for she or he to do so using these helpful tips

Step 1 Implement a written RTW policy that is applied evenly the program as crafted should apply to all employees equally and be administered by one individual or team to monitor and ensure even-handed application For example if your waste and sanitation department workers are offered light duty the police officers must be as well

Step 2 Decide what job to offer you need not place the employee back in their prior role as is often impossible For example if a firefighter sustains a burn avoidance of heat is a common restriction look to a job far from the heat perhaps conducting investigations of suspicious fires or as a 911 operator even Sedentary or very light duty jobs are often best found in the administration department

Step 3 Ensure clear knowledge of employeersquos limitations the injured worker should bring forms to you with the doctorrsquos restrictions but if not received the insurance adjuster can provide you copies Lifting restrictions are the most common but with limitations on the length of time one may sit or stand or how often one must change positions arise regularly as well

Step 4 Send light duty job offer letter via proper means the law on this point is clear ndash you must notify the injured worker of the light duty in writing and via trackable means A phone call telling the injured worker to return will not suffice The letter need not state the job yoursquore offering the shifts or the pay just that you have a position within the restrictions and directing the employee to whom to report and when If the job is refused notify the adjuster immediately

6CONTINUED ON PAGE 7

SPECIAL ARTICLE

Step 5 Manage the first day back with care once the employee reports to work set forth the details of the assignment and your expectations Ensure the tasks are within the most recent restrictions give the information about the new role the shifts and the pay Certain positions within a town or city work a non-traditional schedule for example two days onone day off The light duty you have may not match that nor does it have to simply ensure the new schedule is clearly conveyed and understood

Step 6 Know what you cancannot say keeping the peace is critical and that begins with management It is incumbent upon supervisors to be role models Ask the employee how shehe is feeling or if shehe needs help to let you know Do not accuse or imply someone of faking an injury or exaggerating pain and do not broach the topic of lawyers lawsuits or litigation

Step 7 Manage co-workers and their reactions The aforementioned role models must not only lead by example but must play referee Do not allow co-workers to lob accusations such as those mentioned above or gossip Temper jealousy with comments like ldquoif you got hurt wouldnrsquot you want us to help you toordquo If co-workers are heard talking about money the injured worker is supposedly getting through the case end that conversation immediately as these claims are contagious the last thing you want is four more water plant operators alleging back injuries from changing out meters

Step 8 Monitor actual work of injured employee on light duty one who is working with pain is more prone to re-injure or exacerbate herhis condition Embarrassment bravado and thoughtlessness often leads the worker on light duty to not ask for help and instead act outside the restrictions For example strapping on a ldquogun beltrdquo with the multitude of items attached thereto when there are strict weight-based restrictions in place The pressure that may place on the low back and throughout the legs can increase pain and lead to tighter restrictions or a no work status which can and does increase the claim costs Management must watch to ensure the job is being done right as well as being done texting in the corner instead of investigating the new applicants from the police academy

Step 9 Accommodate medical appointments without getting taken advantage of inevitably some workers will try to take advantage You must allow your workers to go to their appointments however in the public sector work schedules usually do not match the standard office hours of a doctor Thus encourage your employees to make their PT and other appointments before shifts begin or whatever accommodations allow medical compliance without work absences

Step 10 Respond to complaints of the injured worker ldquoMy back hurts I need to go homerdquo ldquoIf your back hurts you need to go to the doctor because the job is within your restrictionsrdquo ldquoThis is work I am not allowed to dordquo ldquoLetrsquos go over your most recent restrictions to ensure your safetyrdquo The key is not to give in and not allow the employee to take advantage of the kindness of herhis employer

Step 11 Decide how to pay the employee on light duty you need not compensate at the same rate as prior to the accident and having some employees on a salary and some paid hourly can lead to confusion The goal to have the best financial outcome in your claim is to offer work that allows the employee to earn 80 of that which was being earned pre-injury Yoursquoll need to update the insurance adjuster on the RTW and shehe can assist in these calculations

Step 12 Report earnings to WC Carrier despite your best efforts there are circumstances under which the employee will still be entitled to some compensation from the insurance carrier it is incumbent upon you to ensure the adjuster has the weekly earnings to ensure benefits are properly and timely administered

The benefits of a well-run return to work program are multi-faceted Getting the worker back in the line of duty lessens the amount of money being paid out by the carrier and thus your immediate claim costs and future insurance rates Allowing the employee to sit at home leads to otherwise avoidable litigation the lawyer ads playing on TV during the day are enticing Hearing the local firm got $1M for another injured worker leads your employee to see dollar signs flashing in neon lights

7CONTINUED ON PAGE 8

SPECIAL ARTICLE

It also fosters wallowing and pain-focused behavior which is detrimental to psychological health and makes it harder to convince someone shehe is capable of working It is difficult if not impossible for many to work while taking medications as such the RTW lessens the amount of medication used and lowers the risk of opioid addiction Bringing your injured worker back makes it impossible for herhis attorney to argue shehe is too injured to work Lastly do not abandon your employee show you care by doing what you can to ensure shehe still has income to pay the rent and feed the family

It may not be an easy task to bring back an injured worker but the financial benefits can be significant and as noted it goes well-beyond the money it is beneficial to the physical and mental health of your employee too and that is a winwin

Amy Siegel Oran is a Partner of Kelley Kronenbergrsquos West Palm Beach office concentrating her practice exclusively on Workersrsquo Compensation defense She focuses her practice on the defense of workersrsquo compensation claims on behalf of employers insurance carriers self-insured corporations third party administrators and claims servicing agencies

Her background includes extensive experience with all aspects of Litigation and Appellate Law Amy is certified by the state of Florida to conduct Continuing Education courses and regularly presents seminars on a wide variety of legal matters She has served on the Workersrsquo Compensation Practice Committee for the Palm Beach County Bar Association playing an integral role in planning the annual Bench Bar Conference as well as speaking at the Conference on numerous occasions Additionally Amy provides regular training seminars to clients advising supervisors managers and employers on proper claim reporting and handling techniques

Amy is also very active with the South Florida affiliate of Susan G Komen After three years on the organizationrsquos Board of Directors Amy now proudly serves as Vice President for the Board of Directors for both the Executive Board and Executive Committees of Susan G Komen Florida

8

This training resource gives our members unlimited access to Training Network NOWrsquos extensive video streaming library of videos covering workplace safety driving safety construction safety and human resourcelegal compliance Video titles are available in both English and Spanish to support your organizations training initiatives Features of Training Network NOW streaming video service include

bull An easily accessible extensive video library of over 680 videos

bull Video course materials to include quizzes completion certificates and leader guides

bull Tablet amp Mobile Capable ndash Now you can watch videos on your preferred mobile device such as tabletsand smartphones

As part of Preferredrsquos initiative to provide continuous improvements for productsservices offered to our members we highly encourage you to considering utilizing the Training Network NOW video streaming service to assist you with your safety and risk management training needs

To learn more on how your organization can take advantage of this exciting free training resource please contact Mike Stephens Senior Loss Control Specialist at Ph 321 832-1658Email mstephenspublicrisk com or your respective regional Loss Control Consultant

Video Streaming Service for Preferred Members

NEWS EXTRA

That Settles It The Florida Supreme Court Resolves Conflict and Extends Stand Your Ground Immunity Protections to Law Enforcement Officers By J David Marsey Esquire - Rumberger Kirk amp Caldwell

The debate about Floridarsquos statutory immunity from criminal and civil liability commonly referred to as the ldquoStand Your Groundrdquo law has reached far and wide Proponents and opponents alike have opined that the law needs revision and courts have disagreed over the application of its terms One area of frequent disagreement involves the application of the immunity to law enforcement officers acting within the course and scope of their employment

The Florida Supreme Court has finally spoken and in doing so resolved the conflict between Florida District Courts of Appeal After consideration of two conflicting lower court decisions and interpreting the law itself the Court held that the clear and unambiguous statutory language affords law enforcement officers the same immunity provisions available to the public at large1

At the core of this dispute lies two similar but substantively different statutes Section 77605 Florida Statutes provides that a law enforcement officer need not retreat or desist from efforts to make a lawful arrest because of actual or threatened resistance from the person to be arrested It also authorizes an officer to use any force which is (1) reasonably necessary to defend himself or herself or another person from harm while making the arrest (2) necessarily committed in retaking an escaped felon and (3) necessarily committed in arresting a felon fleeing from justice Section 776032 Florida Statutes Floridarsquos Stand Your Ground law provides that a ldquopersonrdquo who uses or threatens to use lawful force is immune from criminal prosecution and civil action for the use or threatened use of force if enumerated circumstances exist

The interplay between these two statutes was examined by the Second District Court of Appeal in State v Caamano2 in 2012 In that case an officer was criminally charged with attempted battery and unsuccessfully asserted Stand Your Ground immunity pursuant to Section 776032 In denying the officerrsquos entitlement to immunity from prosecution the Court reasoned that the more specific statutory language applicable to law enforcement officers contained in Section 77605 Florida Statutes controlled over the more general provisions contained in Section 776032 that applied to the public at large Therefore the court reasoned the Stand Your Ground immunity provision was unavailable to an on-duty police officer for force used in the making of an arrest

The issue was revisited by the Fourth District Court of Appeal in State v Peraza 3 in 2017 In that case an officer successfully moved to dismiss an indictment against him for manslaughter with a firearm arising from the officer shooting a suspect who pointed an air rifle at him The State appealed the dismissal based on the Caamano Courtrsquos reasoning The Fourth DCA disagreed with Caamano and affirmed the dismissal of the indictment In that case the court reasoned that an officer using force while making an arrest was not limited by the specific statute applying to officers but was also entitled to seek immunity under Section 776032 Florida Statutes The Peraza Court held that despite the specific statute applying to law enforcement officers are also ldquopersonsrdquo under the law and that nothing under Floridarsquos Stand Your Ground law excludes an officer making an arrest from the immunity provisions available to the general public The Peraza Court certified the conflict with Caamano and certified the question as one of great public importance thus paving the way for review by the Florida Supreme Court

In its review of Peraza the Florida Supreme Court recognized the Caamano Courtrsquos efforts to harmonize different statutory provisions that applied to law enforcement and the more general Stand Your Ground immunity statute Treating the case as one of statutory construction the Supreme Court agreed with the lower courtrsquos rationale and found that the two statutory provisions provided overlapping protections for law enforcement officers making an arrest A noteworthy distinction recognized by the Supreme Court but not considered by either of the lower courts was the distinction between a defense and an immunity

9CONTINUED ON PAGE 10

SPECIAL ARTICLE

While the more specific law enforcement statue provides a defense for the use of force during an arrest it does not include any immunity provisions Conversely the Stand Your Ground statute provides an ldquoimmunity from prosecutionrdquo that is afforded to ldquoany personrdquo who uses lawful force under enumerated circumstances Since there is no language excluding a law enforcement officer from the clear and unambiguous application to a ldquopersonrdquo a law enforcement officer is entitled to assert the Stand Your Ground immunity defense

The Supreme Courtrsquos decision reaffirms that ldquoofficers are people toordquo and that they are entitled to the full use of the Stand Your Ground immunity defense applicable to the public at large whether they are making an arrest or not The importance of this decision cannot be overstated because this now provides officers viable legal defenses to prevent lengthy and costly criminal proceedings if they are able to show through a pre-trial hearing an entitlement to immunity Although the Supreme Court in Peraza addressed only the criminal charges before it Floridarsquos Stand Your Ground immunity provisions provides for immunity for both criminal and civil liability Therefore depending on the specific facts of the case officers facing civil actions for the excessive use of force may have an additional opportunity to obtain dismissal prior to trial and the denial of immunity may also provide the potential for pre-trial appellate review Law enforcement executives and their counsel should familiarize themselves with these new standards and should continue to monitor this developing area of law

1 State v Peraza Case No SC17-1978 (Fla Dec 13 2018) 2 105 So 3d 18 (Fla 2d DCA 2012) 3 226 So 3d 937 (Fla 4th DCA 2017)

J David Marsey is a former police officer investigator and prosecutor and is a partner at the law firm of Rumberger Kirk amp Caldwell in Tallahassee Florida He defends and advises corporations government entities and their employees on casualty employment and constitutional issues throughout the state For more information please visit wwwrumbergercom

10

We are looking forward to seeing you there

2019 MEMBER EDUCATION DAY

April 4th 2019

Orlando World Center Marriott

BREAKTIME FUN -N- GAMES

Hurricane History Trivia 1 What hurricane holds the record for smallest eye

a Wilma b Andrew c Allen d Betty

2 What hurricane holds the record for longest endurance

a Alicia b Cesar c John d Celia

3 What hurricane holds the record for being the largest storm in diameter

a Ingrid b Erika c Hugo d Sandy

4 What Atlantic hurricane holds the record for traveling the furthest distance

a Cloe b Matthew c Faith d Engelbert

5 What Atlantic hurricane holds the record for longest duration as a category 5

a Irma b Otto c Rita d Charley

6 What year holds the record for the least amount of storms to form in a season

a 1983 b 1990 c 2012 d 1969

7 Who is the individual that is given credit as being the first to name hurricanes

a Louis Huricain b King Edward c Clement Wragge d Richard Nixon

8 Who is the individual given credit for being the first to fly safely through a hurricane

a Neal Armstrong b Chuck Yeager c Joseph Duckworth d Amelia Earhart

9 What year holds the record for most named storms to form in one storm season in the Atlantic

a 1974 b 2005 c 1998 d 2004

10 What hurricane holds the record for highest maximum sustained wind speed and lowest barometric pressure

a Allen b Wilma c Mitch d Patricia

11  Where did the word lsquoHurricanerdquo derive from

a Nickname of a famous Caribbean pirate b Mayan god of wind and storm c A mythical Norse sea creature

12 Hurricanes use to be given female names but are now given male and female names On what year did this begin

a 2000 b 1979 c 1998 d 1986

KEY STAFF CONTACTSPlease visit wwwpgitorgResourcesSpring 2019Article Index for Hurricane History Trivia answer key

As a member of Preferred your first call should always be to your agent if however you need help beyond your agent please feel free to contact us as indicated below

Marketing Operations Loss Control Claims marketingpublicriskcom jmartinpublicriskcom mstephenspublicriskcom ftuckerpgcs-tpacom 321-832-1455 321-832-1691 321-832-1658 321-832-1401 Kurt Heyman Jennifer Martin Mike Stephens Fred Tucker

11

Standard Presort

US Postage PAID

Permit 1979 Orlando FL

P O BOX 958455 - Lake Mary FL 32795-8455

Page 5: Preferred News Spring 2019Public Risk Underwriters of Florida, Inc. During Florida’s hurricane season employees are exposed to increased risk of injury. Employees that are most likely

EXCLUSIVE ARTICLE

Pre-incident debris management planning can provide significant benefits

bull Saves valuable time and resources during aresponse to a disaster

bull Allows more efficient effective andenvironmentally responsible waste managementdecision-making during a disaster

bull Encourages stakeholders ( state local owners ofprivate storage treatment and disposal facilitiesresidents) to work together before disasteroccurs

bull Boosts the communityrsquos resiliency in the wake of adisaster and positions it for a quicker and less costlyrecovery to its pre-incident state

bull Enhances the communityrsquos adaptation to the debris-related impacts of climate-change

bull Minimally detracts from or otherwise impacts thebroader response and recovery efforts due to theefficient implementation of debris managementactivities

Based on lessons learned and insights from community officials who have conducted debris cleanup after a natural disaster the Environmental Protection Agency developed a comprehensive pre-incident planning process to help prepare communities for effective disaster debris management This recommended process guides communities through four steps

1 Conduct pre-planning activities 3 Keep the debris management plan updated

2 Develop a comprehensive pre-incident debris 4 Implement the debris management plan during a management plan natural disaster

Florida is unique in itrsquos vulnerability to Hurricanersquos There is hardly a community that hasnrsquot been effected in recent years by one The storms are getting more severe and the costs and clean-up post disaster more profound Planning for what needs to be done post-disaster has never been more important than now

Mike Marinan has a degree in Industrial Safety Engineering and over 35 years experience in the Safety and Risk Management field He has been employed by Public Risk Underwriters of Florida Inc for 17 years He holds an RMPE designation holds a General Lines 220 and 218 licenses is an active member of Central Florida PRIMA as well as an active member of ASSP and numerous related Safety and Health organizations He was a Governor appointee to the Task Force on Workplace Safety

5

Preferred would like to welcome the following new members

Village Community Development District 13

Lincoln Road Business Improvement District Inc

SPECIAL ARTICLE

Return to Work Policies Make Cents By Amy Siegel Oran Esquire Partner - Kelley Kronenberg

The hazards encountered on a daily basis by those working in municipalities often lead to injuries the restrictions from which are inherently difficult to accommodate

Despite the best training and safety equipment you may provide accidents will happen Carrying workersrsquo compensation coverage is not only legally required but also the best way to reduce the financial risk however relying on your carrier is not enough To keep your claim costs low and your premiums reasonable a carefully tailored well-executed return to work (RTW) policy is critical

To run an RTW program you need to craft one particular to the nature of your municipality and to your divisions within the town or city itself There are twelve core steps to guide you in the creation and implementation of a successful program

1 Implement a written RTW policy that is applied 7 Manage co-workers and their reactions evenly 8 Monitor actual work of injured employee on light duty

2 Decide what job to offer 9Accommodate medical appointments without3 Ensure clear knowledge of employeersquos limitations getting taken advantage of

4 Send light duty job offer letter via proper means 10 Respond to complaints of the injured worker

5 Manage the first day back with care 11 Decide how to pay the employee on light duty

6 Know what you cancannot say 12 Report earnings to WC Carrier

Restrictions often seen in the public service sector can make RTW more complicated but it is rarely impossible if the treating physician says your employee can RTW in some capacity find a way for she or he to do so using these helpful tips

Step 1 Implement a written RTW policy that is applied evenly the program as crafted should apply to all employees equally and be administered by one individual or team to monitor and ensure even-handed application For example if your waste and sanitation department workers are offered light duty the police officers must be as well

Step 2 Decide what job to offer you need not place the employee back in their prior role as is often impossible For example if a firefighter sustains a burn avoidance of heat is a common restriction look to a job far from the heat perhaps conducting investigations of suspicious fires or as a 911 operator even Sedentary or very light duty jobs are often best found in the administration department

Step 3 Ensure clear knowledge of employeersquos limitations the injured worker should bring forms to you with the doctorrsquos restrictions but if not received the insurance adjuster can provide you copies Lifting restrictions are the most common but with limitations on the length of time one may sit or stand or how often one must change positions arise regularly as well

Step 4 Send light duty job offer letter via proper means the law on this point is clear ndash you must notify the injured worker of the light duty in writing and via trackable means A phone call telling the injured worker to return will not suffice The letter need not state the job yoursquore offering the shifts or the pay just that you have a position within the restrictions and directing the employee to whom to report and when If the job is refused notify the adjuster immediately

6CONTINUED ON PAGE 7

SPECIAL ARTICLE

Step 5 Manage the first day back with care once the employee reports to work set forth the details of the assignment and your expectations Ensure the tasks are within the most recent restrictions give the information about the new role the shifts and the pay Certain positions within a town or city work a non-traditional schedule for example two days onone day off The light duty you have may not match that nor does it have to simply ensure the new schedule is clearly conveyed and understood

Step 6 Know what you cancannot say keeping the peace is critical and that begins with management It is incumbent upon supervisors to be role models Ask the employee how shehe is feeling or if shehe needs help to let you know Do not accuse or imply someone of faking an injury or exaggerating pain and do not broach the topic of lawyers lawsuits or litigation

Step 7 Manage co-workers and their reactions The aforementioned role models must not only lead by example but must play referee Do not allow co-workers to lob accusations such as those mentioned above or gossip Temper jealousy with comments like ldquoif you got hurt wouldnrsquot you want us to help you toordquo If co-workers are heard talking about money the injured worker is supposedly getting through the case end that conversation immediately as these claims are contagious the last thing you want is four more water plant operators alleging back injuries from changing out meters

Step 8 Monitor actual work of injured employee on light duty one who is working with pain is more prone to re-injure or exacerbate herhis condition Embarrassment bravado and thoughtlessness often leads the worker on light duty to not ask for help and instead act outside the restrictions For example strapping on a ldquogun beltrdquo with the multitude of items attached thereto when there are strict weight-based restrictions in place The pressure that may place on the low back and throughout the legs can increase pain and lead to tighter restrictions or a no work status which can and does increase the claim costs Management must watch to ensure the job is being done right as well as being done texting in the corner instead of investigating the new applicants from the police academy

Step 9 Accommodate medical appointments without getting taken advantage of inevitably some workers will try to take advantage You must allow your workers to go to their appointments however in the public sector work schedules usually do not match the standard office hours of a doctor Thus encourage your employees to make their PT and other appointments before shifts begin or whatever accommodations allow medical compliance without work absences

Step 10 Respond to complaints of the injured worker ldquoMy back hurts I need to go homerdquo ldquoIf your back hurts you need to go to the doctor because the job is within your restrictionsrdquo ldquoThis is work I am not allowed to dordquo ldquoLetrsquos go over your most recent restrictions to ensure your safetyrdquo The key is not to give in and not allow the employee to take advantage of the kindness of herhis employer

Step 11 Decide how to pay the employee on light duty you need not compensate at the same rate as prior to the accident and having some employees on a salary and some paid hourly can lead to confusion The goal to have the best financial outcome in your claim is to offer work that allows the employee to earn 80 of that which was being earned pre-injury Yoursquoll need to update the insurance adjuster on the RTW and shehe can assist in these calculations

Step 12 Report earnings to WC Carrier despite your best efforts there are circumstances under which the employee will still be entitled to some compensation from the insurance carrier it is incumbent upon you to ensure the adjuster has the weekly earnings to ensure benefits are properly and timely administered

The benefits of a well-run return to work program are multi-faceted Getting the worker back in the line of duty lessens the amount of money being paid out by the carrier and thus your immediate claim costs and future insurance rates Allowing the employee to sit at home leads to otherwise avoidable litigation the lawyer ads playing on TV during the day are enticing Hearing the local firm got $1M for another injured worker leads your employee to see dollar signs flashing in neon lights

7CONTINUED ON PAGE 8

SPECIAL ARTICLE

It also fosters wallowing and pain-focused behavior which is detrimental to psychological health and makes it harder to convince someone shehe is capable of working It is difficult if not impossible for many to work while taking medications as such the RTW lessens the amount of medication used and lowers the risk of opioid addiction Bringing your injured worker back makes it impossible for herhis attorney to argue shehe is too injured to work Lastly do not abandon your employee show you care by doing what you can to ensure shehe still has income to pay the rent and feed the family

It may not be an easy task to bring back an injured worker but the financial benefits can be significant and as noted it goes well-beyond the money it is beneficial to the physical and mental health of your employee too and that is a winwin

Amy Siegel Oran is a Partner of Kelley Kronenbergrsquos West Palm Beach office concentrating her practice exclusively on Workersrsquo Compensation defense She focuses her practice on the defense of workersrsquo compensation claims on behalf of employers insurance carriers self-insured corporations third party administrators and claims servicing agencies

Her background includes extensive experience with all aspects of Litigation and Appellate Law Amy is certified by the state of Florida to conduct Continuing Education courses and regularly presents seminars on a wide variety of legal matters She has served on the Workersrsquo Compensation Practice Committee for the Palm Beach County Bar Association playing an integral role in planning the annual Bench Bar Conference as well as speaking at the Conference on numerous occasions Additionally Amy provides regular training seminars to clients advising supervisors managers and employers on proper claim reporting and handling techniques

Amy is also very active with the South Florida affiliate of Susan G Komen After three years on the organizationrsquos Board of Directors Amy now proudly serves as Vice President for the Board of Directors for both the Executive Board and Executive Committees of Susan G Komen Florida

8

This training resource gives our members unlimited access to Training Network NOWrsquos extensive video streaming library of videos covering workplace safety driving safety construction safety and human resourcelegal compliance Video titles are available in both English and Spanish to support your organizations training initiatives Features of Training Network NOW streaming video service include

bull An easily accessible extensive video library of over 680 videos

bull Video course materials to include quizzes completion certificates and leader guides

bull Tablet amp Mobile Capable ndash Now you can watch videos on your preferred mobile device such as tabletsand smartphones

As part of Preferredrsquos initiative to provide continuous improvements for productsservices offered to our members we highly encourage you to considering utilizing the Training Network NOW video streaming service to assist you with your safety and risk management training needs

To learn more on how your organization can take advantage of this exciting free training resource please contact Mike Stephens Senior Loss Control Specialist at Ph 321 832-1658Email mstephenspublicrisk com or your respective regional Loss Control Consultant

Video Streaming Service for Preferred Members

NEWS EXTRA

That Settles It The Florida Supreme Court Resolves Conflict and Extends Stand Your Ground Immunity Protections to Law Enforcement Officers By J David Marsey Esquire - Rumberger Kirk amp Caldwell

The debate about Floridarsquos statutory immunity from criminal and civil liability commonly referred to as the ldquoStand Your Groundrdquo law has reached far and wide Proponents and opponents alike have opined that the law needs revision and courts have disagreed over the application of its terms One area of frequent disagreement involves the application of the immunity to law enforcement officers acting within the course and scope of their employment

The Florida Supreme Court has finally spoken and in doing so resolved the conflict between Florida District Courts of Appeal After consideration of two conflicting lower court decisions and interpreting the law itself the Court held that the clear and unambiguous statutory language affords law enforcement officers the same immunity provisions available to the public at large1

At the core of this dispute lies two similar but substantively different statutes Section 77605 Florida Statutes provides that a law enforcement officer need not retreat or desist from efforts to make a lawful arrest because of actual or threatened resistance from the person to be arrested It also authorizes an officer to use any force which is (1) reasonably necessary to defend himself or herself or another person from harm while making the arrest (2) necessarily committed in retaking an escaped felon and (3) necessarily committed in arresting a felon fleeing from justice Section 776032 Florida Statutes Floridarsquos Stand Your Ground law provides that a ldquopersonrdquo who uses or threatens to use lawful force is immune from criminal prosecution and civil action for the use or threatened use of force if enumerated circumstances exist

The interplay between these two statutes was examined by the Second District Court of Appeal in State v Caamano2 in 2012 In that case an officer was criminally charged with attempted battery and unsuccessfully asserted Stand Your Ground immunity pursuant to Section 776032 In denying the officerrsquos entitlement to immunity from prosecution the Court reasoned that the more specific statutory language applicable to law enforcement officers contained in Section 77605 Florida Statutes controlled over the more general provisions contained in Section 776032 that applied to the public at large Therefore the court reasoned the Stand Your Ground immunity provision was unavailable to an on-duty police officer for force used in the making of an arrest

The issue was revisited by the Fourth District Court of Appeal in State v Peraza 3 in 2017 In that case an officer successfully moved to dismiss an indictment against him for manslaughter with a firearm arising from the officer shooting a suspect who pointed an air rifle at him The State appealed the dismissal based on the Caamano Courtrsquos reasoning The Fourth DCA disagreed with Caamano and affirmed the dismissal of the indictment In that case the court reasoned that an officer using force while making an arrest was not limited by the specific statute applying to officers but was also entitled to seek immunity under Section 776032 Florida Statutes The Peraza Court held that despite the specific statute applying to law enforcement officers are also ldquopersonsrdquo under the law and that nothing under Floridarsquos Stand Your Ground law excludes an officer making an arrest from the immunity provisions available to the general public The Peraza Court certified the conflict with Caamano and certified the question as one of great public importance thus paving the way for review by the Florida Supreme Court

In its review of Peraza the Florida Supreme Court recognized the Caamano Courtrsquos efforts to harmonize different statutory provisions that applied to law enforcement and the more general Stand Your Ground immunity statute Treating the case as one of statutory construction the Supreme Court agreed with the lower courtrsquos rationale and found that the two statutory provisions provided overlapping protections for law enforcement officers making an arrest A noteworthy distinction recognized by the Supreme Court but not considered by either of the lower courts was the distinction between a defense and an immunity

9CONTINUED ON PAGE 10

SPECIAL ARTICLE

While the more specific law enforcement statue provides a defense for the use of force during an arrest it does not include any immunity provisions Conversely the Stand Your Ground statute provides an ldquoimmunity from prosecutionrdquo that is afforded to ldquoany personrdquo who uses lawful force under enumerated circumstances Since there is no language excluding a law enforcement officer from the clear and unambiguous application to a ldquopersonrdquo a law enforcement officer is entitled to assert the Stand Your Ground immunity defense

The Supreme Courtrsquos decision reaffirms that ldquoofficers are people toordquo and that they are entitled to the full use of the Stand Your Ground immunity defense applicable to the public at large whether they are making an arrest or not The importance of this decision cannot be overstated because this now provides officers viable legal defenses to prevent lengthy and costly criminal proceedings if they are able to show through a pre-trial hearing an entitlement to immunity Although the Supreme Court in Peraza addressed only the criminal charges before it Floridarsquos Stand Your Ground immunity provisions provides for immunity for both criminal and civil liability Therefore depending on the specific facts of the case officers facing civil actions for the excessive use of force may have an additional opportunity to obtain dismissal prior to trial and the denial of immunity may also provide the potential for pre-trial appellate review Law enforcement executives and their counsel should familiarize themselves with these new standards and should continue to monitor this developing area of law

1 State v Peraza Case No SC17-1978 (Fla Dec 13 2018) 2 105 So 3d 18 (Fla 2d DCA 2012) 3 226 So 3d 937 (Fla 4th DCA 2017)

J David Marsey is a former police officer investigator and prosecutor and is a partner at the law firm of Rumberger Kirk amp Caldwell in Tallahassee Florida He defends and advises corporations government entities and their employees on casualty employment and constitutional issues throughout the state For more information please visit wwwrumbergercom

10

We are looking forward to seeing you there

2019 MEMBER EDUCATION DAY

April 4th 2019

Orlando World Center Marriott

BREAKTIME FUN -N- GAMES

Hurricane History Trivia 1 What hurricane holds the record for smallest eye

a Wilma b Andrew c Allen d Betty

2 What hurricane holds the record for longest endurance

a Alicia b Cesar c John d Celia

3 What hurricane holds the record for being the largest storm in diameter

a Ingrid b Erika c Hugo d Sandy

4 What Atlantic hurricane holds the record for traveling the furthest distance

a Cloe b Matthew c Faith d Engelbert

5 What Atlantic hurricane holds the record for longest duration as a category 5

a Irma b Otto c Rita d Charley

6 What year holds the record for the least amount of storms to form in a season

a 1983 b 1990 c 2012 d 1969

7 Who is the individual that is given credit as being the first to name hurricanes

a Louis Huricain b King Edward c Clement Wragge d Richard Nixon

8 Who is the individual given credit for being the first to fly safely through a hurricane

a Neal Armstrong b Chuck Yeager c Joseph Duckworth d Amelia Earhart

9 What year holds the record for most named storms to form in one storm season in the Atlantic

a 1974 b 2005 c 1998 d 2004

10 What hurricane holds the record for highest maximum sustained wind speed and lowest barometric pressure

a Allen b Wilma c Mitch d Patricia

11  Where did the word lsquoHurricanerdquo derive from

a Nickname of a famous Caribbean pirate b Mayan god of wind and storm c A mythical Norse sea creature

12 Hurricanes use to be given female names but are now given male and female names On what year did this begin

a 2000 b 1979 c 1998 d 1986

KEY STAFF CONTACTSPlease visit wwwpgitorgResourcesSpring 2019Article Index for Hurricane History Trivia answer key

As a member of Preferred your first call should always be to your agent if however you need help beyond your agent please feel free to contact us as indicated below

Marketing Operations Loss Control Claims marketingpublicriskcom jmartinpublicriskcom mstephenspublicriskcom ftuckerpgcs-tpacom 321-832-1455 321-832-1691 321-832-1658 321-832-1401 Kurt Heyman Jennifer Martin Mike Stephens Fred Tucker

11

Standard Presort

US Postage PAID

Permit 1979 Orlando FL

P O BOX 958455 - Lake Mary FL 32795-8455

Page 6: Preferred News Spring 2019Public Risk Underwriters of Florida, Inc. During Florida’s hurricane season employees are exposed to increased risk of injury. Employees that are most likely

SPECIAL ARTICLE

Return to Work Policies Make Cents By Amy Siegel Oran Esquire Partner - Kelley Kronenberg

The hazards encountered on a daily basis by those working in municipalities often lead to injuries the restrictions from which are inherently difficult to accommodate

Despite the best training and safety equipment you may provide accidents will happen Carrying workersrsquo compensation coverage is not only legally required but also the best way to reduce the financial risk however relying on your carrier is not enough To keep your claim costs low and your premiums reasonable a carefully tailored well-executed return to work (RTW) policy is critical

To run an RTW program you need to craft one particular to the nature of your municipality and to your divisions within the town or city itself There are twelve core steps to guide you in the creation and implementation of a successful program

1 Implement a written RTW policy that is applied 7 Manage co-workers and their reactions evenly 8 Monitor actual work of injured employee on light duty

2 Decide what job to offer 9Accommodate medical appointments without3 Ensure clear knowledge of employeersquos limitations getting taken advantage of

4 Send light duty job offer letter via proper means 10 Respond to complaints of the injured worker

5 Manage the first day back with care 11 Decide how to pay the employee on light duty

6 Know what you cancannot say 12 Report earnings to WC Carrier

Restrictions often seen in the public service sector can make RTW more complicated but it is rarely impossible if the treating physician says your employee can RTW in some capacity find a way for she or he to do so using these helpful tips

Step 1 Implement a written RTW policy that is applied evenly the program as crafted should apply to all employees equally and be administered by one individual or team to monitor and ensure even-handed application For example if your waste and sanitation department workers are offered light duty the police officers must be as well

Step 2 Decide what job to offer you need not place the employee back in their prior role as is often impossible For example if a firefighter sustains a burn avoidance of heat is a common restriction look to a job far from the heat perhaps conducting investigations of suspicious fires or as a 911 operator even Sedentary or very light duty jobs are often best found in the administration department

Step 3 Ensure clear knowledge of employeersquos limitations the injured worker should bring forms to you with the doctorrsquos restrictions but if not received the insurance adjuster can provide you copies Lifting restrictions are the most common but with limitations on the length of time one may sit or stand or how often one must change positions arise regularly as well

Step 4 Send light duty job offer letter via proper means the law on this point is clear ndash you must notify the injured worker of the light duty in writing and via trackable means A phone call telling the injured worker to return will not suffice The letter need not state the job yoursquore offering the shifts or the pay just that you have a position within the restrictions and directing the employee to whom to report and when If the job is refused notify the adjuster immediately

6CONTINUED ON PAGE 7

SPECIAL ARTICLE

Step 5 Manage the first day back with care once the employee reports to work set forth the details of the assignment and your expectations Ensure the tasks are within the most recent restrictions give the information about the new role the shifts and the pay Certain positions within a town or city work a non-traditional schedule for example two days onone day off The light duty you have may not match that nor does it have to simply ensure the new schedule is clearly conveyed and understood

Step 6 Know what you cancannot say keeping the peace is critical and that begins with management It is incumbent upon supervisors to be role models Ask the employee how shehe is feeling or if shehe needs help to let you know Do not accuse or imply someone of faking an injury or exaggerating pain and do not broach the topic of lawyers lawsuits or litigation

Step 7 Manage co-workers and their reactions The aforementioned role models must not only lead by example but must play referee Do not allow co-workers to lob accusations such as those mentioned above or gossip Temper jealousy with comments like ldquoif you got hurt wouldnrsquot you want us to help you toordquo If co-workers are heard talking about money the injured worker is supposedly getting through the case end that conversation immediately as these claims are contagious the last thing you want is four more water plant operators alleging back injuries from changing out meters

Step 8 Monitor actual work of injured employee on light duty one who is working with pain is more prone to re-injure or exacerbate herhis condition Embarrassment bravado and thoughtlessness often leads the worker on light duty to not ask for help and instead act outside the restrictions For example strapping on a ldquogun beltrdquo with the multitude of items attached thereto when there are strict weight-based restrictions in place The pressure that may place on the low back and throughout the legs can increase pain and lead to tighter restrictions or a no work status which can and does increase the claim costs Management must watch to ensure the job is being done right as well as being done texting in the corner instead of investigating the new applicants from the police academy

Step 9 Accommodate medical appointments without getting taken advantage of inevitably some workers will try to take advantage You must allow your workers to go to their appointments however in the public sector work schedules usually do not match the standard office hours of a doctor Thus encourage your employees to make their PT and other appointments before shifts begin or whatever accommodations allow medical compliance without work absences

Step 10 Respond to complaints of the injured worker ldquoMy back hurts I need to go homerdquo ldquoIf your back hurts you need to go to the doctor because the job is within your restrictionsrdquo ldquoThis is work I am not allowed to dordquo ldquoLetrsquos go over your most recent restrictions to ensure your safetyrdquo The key is not to give in and not allow the employee to take advantage of the kindness of herhis employer

Step 11 Decide how to pay the employee on light duty you need not compensate at the same rate as prior to the accident and having some employees on a salary and some paid hourly can lead to confusion The goal to have the best financial outcome in your claim is to offer work that allows the employee to earn 80 of that which was being earned pre-injury Yoursquoll need to update the insurance adjuster on the RTW and shehe can assist in these calculations

Step 12 Report earnings to WC Carrier despite your best efforts there are circumstances under which the employee will still be entitled to some compensation from the insurance carrier it is incumbent upon you to ensure the adjuster has the weekly earnings to ensure benefits are properly and timely administered

The benefits of a well-run return to work program are multi-faceted Getting the worker back in the line of duty lessens the amount of money being paid out by the carrier and thus your immediate claim costs and future insurance rates Allowing the employee to sit at home leads to otherwise avoidable litigation the lawyer ads playing on TV during the day are enticing Hearing the local firm got $1M for another injured worker leads your employee to see dollar signs flashing in neon lights

7CONTINUED ON PAGE 8

SPECIAL ARTICLE

It also fosters wallowing and pain-focused behavior which is detrimental to psychological health and makes it harder to convince someone shehe is capable of working It is difficult if not impossible for many to work while taking medications as such the RTW lessens the amount of medication used and lowers the risk of opioid addiction Bringing your injured worker back makes it impossible for herhis attorney to argue shehe is too injured to work Lastly do not abandon your employee show you care by doing what you can to ensure shehe still has income to pay the rent and feed the family

It may not be an easy task to bring back an injured worker but the financial benefits can be significant and as noted it goes well-beyond the money it is beneficial to the physical and mental health of your employee too and that is a winwin

Amy Siegel Oran is a Partner of Kelley Kronenbergrsquos West Palm Beach office concentrating her practice exclusively on Workersrsquo Compensation defense She focuses her practice on the defense of workersrsquo compensation claims on behalf of employers insurance carriers self-insured corporations third party administrators and claims servicing agencies

Her background includes extensive experience with all aspects of Litigation and Appellate Law Amy is certified by the state of Florida to conduct Continuing Education courses and regularly presents seminars on a wide variety of legal matters She has served on the Workersrsquo Compensation Practice Committee for the Palm Beach County Bar Association playing an integral role in planning the annual Bench Bar Conference as well as speaking at the Conference on numerous occasions Additionally Amy provides regular training seminars to clients advising supervisors managers and employers on proper claim reporting and handling techniques

Amy is also very active with the South Florida affiliate of Susan G Komen After three years on the organizationrsquos Board of Directors Amy now proudly serves as Vice President for the Board of Directors for both the Executive Board and Executive Committees of Susan G Komen Florida

8

This training resource gives our members unlimited access to Training Network NOWrsquos extensive video streaming library of videos covering workplace safety driving safety construction safety and human resourcelegal compliance Video titles are available in both English and Spanish to support your organizations training initiatives Features of Training Network NOW streaming video service include

bull An easily accessible extensive video library of over 680 videos

bull Video course materials to include quizzes completion certificates and leader guides

bull Tablet amp Mobile Capable ndash Now you can watch videos on your preferred mobile device such as tabletsand smartphones

As part of Preferredrsquos initiative to provide continuous improvements for productsservices offered to our members we highly encourage you to considering utilizing the Training Network NOW video streaming service to assist you with your safety and risk management training needs

To learn more on how your organization can take advantage of this exciting free training resource please contact Mike Stephens Senior Loss Control Specialist at Ph 321 832-1658Email mstephenspublicrisk com or your respective regional Loss Control Consultant

Video Streaming Service for Preferred Members

NEWS EXTRA

That Settles It The Florida Supreme Court Resolves Conflict and Extends Stand Your Ground Immunity Protections to Law Enforcement Officers By J David Marsey Esquire - Rumberger Kirk amp Caldwell

The debate about Floridarsquos statutory immunity from criminal and civil liability commonly referred to as the ldquoStand Your Groundrdquo law has reached far and wide Proponents and opponents alike have opined that the law needs revision and courts have disagreed over the application of its terms One area of frequent disagreement involves the application of the immunity to law enforcement officers acting within the course and scope of their employment

The Florida Supreme Court has finally spoken and in doing so resolved the conflict between Florida District Courts of Appeal After consideration of two conflicting lower court decisions and interpreting the law itself the Court held that the clear and unambiguous statutory language affords law enforcement officers the same immunity provisions available to the public at large1

At the core of this dispute lies two similar but substantively different statutes Section 77605 Florida Statutes provides that a law enforcement officer need not retreat or desist from efforts to make a lawful arrest because of actual or threatened resistance from the person to be arrested It also authorizes an officer to use any force which is (1) reasonably necessary to defend himself or herself or another person from harm while making the arrest (2) necessarily committed in retaking an escaped felon and (3) necessarily committed in arresting a felon fleeing from justice Section 776032 Florida Statutes Floridarsquos Stand Your Ground law provides that a ldquopersonrdquo who uses or threatens to use lawful force is immune from criminal prosecution and civil action for the use or threatened use of force if enumerated circumstances exist

The interplay between these two statutes was examined by the Second District Court of Appeal in State v Caamano2 in 2012 In that case an officer was criminally charged with attempted battery and unsuccessfully asserted Stand Your Ground immunity pursuant to Section 776032 In denying the officerrsquos entitlement to immunity from prosecution the Court reasoned that the more specific statutory language applicable to law enforcement officers contained in Section 77605 Florida Statutes controlled over the more general provisions contained in Section 776032 that applied to the public at large Therefore the court reasoned the Stand Your Ground immunity provision was unavailable to an on-duty police officer for force used in the making of an arrest

The issue was revisited by the Fourth District Court of Appeal in State v Peraza 3 in 2017 In that case an officer successfully moved to dismiss an indictment against him for manslaughter with a firearm arising from the officer shooting a suspect who pointed an air rifle at him The State appealed the dismissal based on the Caamano Courtrsquos reasoning The Fourth DCA disagreed with Caamano and affirmed the dismissal of the indictment In that case the court reasoned that an officer using force while making an arrest was not limited by the specific statute applying to officers but was also entitled to seek immunity under Section 776032 Florida Statutes The Peraza Court held that despite the specific statute applying to law enforcement officers are also ldquopersonsrdquo under the law and that nothing under Floridarsquos Stand Your Ground law excludes an officer making an arrest from the immunity provisions available to the general public The Peraza Court certified the conflict with Caamano and certified the question as one of great public importance thus paving the way for review by the Florida Supreme Court

In its review of Peraza the Florida Supreme Court recognized the Caamano Courtrsquos efforts to harmonize different statutory provisions that applied to law enforcement and the more general Stand Your Ground immunity statute Treating the case as one of statutory construction the Supreme Court agreed with the lower courtrsquos rationale and found that the two statutory provisions provided overlapping protections for law enforcement officers making an arrest A noteworthy distinction recognized by the Supreme Court but not considered by either of the lower courts was the distinction between a defense and an immunity

9CONTINUED ON PAGE 10

SPECIAL ARTICLE

While the more specific law enforcement statue provides a defense for the use of force during an arrest it does not include any immunity provisions Conversely the Stand Your Ground statute provides an ldquoimmunity from prosecutionrdquo that is afforded to ldquoany personrdquo who uses lawful force under enumerated circumstances Since there is no language excluding a law enforcement officer from the clear and unambiguous application to a ldquopersonrdquo a law enforcement officer is entitled to assert the Stand Your Ground immunity defense

The Supreme Courtrsquos decision reaffirms that ldquoofficers are people toordquo and that they are entitled to the full use of the Stand Your Ground immunity defense applicable to the public at large whether they are making an arrest or not The importance of this decision cannot be overstated because this now provides officers viable legal defenses to prevent lengthy and costly criminal proceedings if they are able to show through a pre-trial hearing an entitlement to immunity Although the Supreme Court in Peraza addressed only the criminal charges before it Floridarsquos Stand Your Ground immunity provisions provides for immunity for both criminal and civil liability Therefore depending on the specific facts of the case officers facing civil actions for the excessive use of force may have an additional opportunity to obtain dismissal prior to trial and the denial of immunity may also provide the potential for pre-trial appellate review Law enforcement executives and their counsel should familiarize themselves with these new standards and should continue to monitor this developing area of law

1 State v Peraza Case No SC17-1978 (Fla Dec 13 2018) 2 105 So 3d 18 (Fla 2d DCA 2012) 3 226 So 3d 937 (Fla 4th DCA 2017)

J David Marsey is a former police officer investigator and prosecutor and is a partner at the law firm of Rumberger Kirk amp Caldwell in Tallahassee Florida He defends and advises corporations government entities and their employees on casualty employment and constitutional issues throughout the state For more information please visit wwwrumbergercom

10

We are looking forward to seeing you there

2019 MEMBER EDUCATION DAY

April 4th 2019

Orlando World Center Marriott

BREAKTIME FUN -N- GAMES

Hurricane History Trivia 1 What hurricane holds the record for smallest eye

a Wilma b Andrew c Allen d Betty

2 What hurricane holds the record for longest endurance

a Alicia b Cesar c John d Celia

3 What hurricane holds the record for being the largest storm in diameter

a Ingrid b Erika c Hugo d Sandy

4 What Atlantic hurricane holds the record for traveling the furthest distance

a Cloe b Matthew c Faith d Engelbert

5 What Atlantic hurricane holds the record for longest duration as a category 5

a Irma b Otto c Rita d Charley

6 What year holds the record for the least amount of storms to form in a season

a 1983 b 1990 c 2012 d 1969

7 Who is the individual that is given credit as being the first to name hurricanes

a Louis Huricain b King Edward c Clement Wragge d Richard Nixon

8 Who is the individual given credit for being the first to fly safely through a hurricane

a Neal Armstrong b Chuck Yeager c Joseph Duckworth d Amelia Earhart

9 What year holds the record for most named storms to form in one storm season in the Atlantic

a 1974 b 2005 c 1998 d 2004

10 What hurricane holds the record for highest maximum sustained wind speed and lowest barometric pressure

a Allen b Wilma c Mitch d Patricia

11  Where did the word lsquoHurricanerdquo derive from

a Nickname of a famous Caribbean pirate b Mayan god of wind and storm c A mythical Norse sea creature

12 Hurricanes use to be given female names but are now given male and female names On what year did this begin

a 2000 b 1979 c 1998 d 1986

KEY STAFF CONTACTSPlease visit wwwpgitorgResourcesSpring 2019Article Index for Hurricane History Trivia answer key

As a member of Preferred your first call should always be to your agent if however you need help beyond your agent please feel free to contact us as indicated below

Marketing Operations Loss Control Claims marketingpublicriskcom jmartinpublicriskcom mstephenspublicriskcom ftuckerpgcs-tpacom 321-832-1455 321-832-1691 321-832-1658 321-832-1401 Kurt Heyman Jennifer Martin Mike Stephens Fred Tucker

11

Standard Presort

US Postage PAID

Permit 1979 Orlando FL

P O BOX 958455 - Lake Mary FL 32795-8455

Page 7: Preferred News Spring 2019Public Risk Underwriters of Florida, Inc. During Florida’s hurricane season employees are exposed to increased risk of injury. Employees that are most likely

SPECIAL ARTICLE

Step 5 Manage the first day back with care once the employee reports to work set forth the details of the assignment and your expectations Ensure the tasks are within the most recent restrictions give the information about the new role the shifts and the pay Certain positions within a town or city work a non-traditional schedule for example two days onone day off The light duty you have may not match that nor does it have to simply ensure the new schedule is clearly conveyed and understood

Step 6 Know what you cancannot say keeping the peace is critical and that begins with management It is incumbent upon supervisors to be role models Ask the employee how shehe is feeling or if shehe needs help to let you know Do not accuse or imply someone of faking an injury or exaggerating pain and do not broach the topic of lawyers lawsuits or litigation

Step 7 Manage co-workers and their reactions The aforementioned role models must not only lead by example but must play referee Do not allow co-workers to lob accusations such as those mentioned above or gossip Temper jealousy with comments like ldquoif you got hurt wouldnrsquot you want us to help you toordquo If co-workers are heard talking about money the injured worker is supposedly getting through the case end that conversation immediately as these claims are contagious the last thing you want is four more water plant operators alleging back injuries from changing out meters

Step 8 Monitor actual work of injured employee on light duty one who is working with pain is more prone to re-injure or exacerbate herhis condition Embarrassment bravado and thoughtlessness often leads the worker on light duty to not ask for help and instead act outside the restrictions For example strapping on a ldquogun beltrdquo with the multitude of items attached thereto when there are strict weight-based restrictions in place The pressure that may place on the low back and throughout the legs can increase pain and lead to tighter restrictions or a no work status which can and does increase the claim costs Management must watch to ensure the job is being done right as well as being done texting in the corner instead of investigating the new applicants from the police academy

Step 9 Accommodate medical appointments without getting taken advantage of inevitably some workers will try to take advantage You must allow your workers to go to their appointments however in the public sector work schedules usually do not match the standard office hours of a doctor Thus encourage your employees to make their PT and other appointments before shifts begin or whatever accommodations allow medical compliance without work absences

Step 10 Respond to complaints of the injured worker ldquoMy back hurts I need to go homerdquo ldquoIf your back hurts you need to go to the doctor because the job is within your restrictionsrdquo ldquoThis is work I am not allowed to dordquo ldquoLetrsquos go over your most recent restrictions to ensure your safetyrdquo The key is not to give in and not allow the employee to take advantage of the kindness of herhis employer

Step 11 Decide how to pay the employee on light duty you need not compensate at the same rate as prior to the accident and having some employees on a salary and some paid hourly can lead to confusion The goal to have the best financial outcome in your claim is to offer work that allows the employee to earn 80 of that which was being earned pre-injury Yoursquoll need to update the insurance adjuster on the RTW and shehe can assist in these calculations

Step 12 Report earnings to WC Carrier despite your best efforts there are circumstances under which the employee will still be entitled to some compensation from the insurance carrier it is incumbent upon you to ensure the adjuster has the weekly earnings to ensure benefits are properly and timely administered

The benefits of a well-run return to work program are multi-faceted Getting the worker back in the line of duty lessens the amount of money being paid out by the carrier and thus your immediate claim costs and future insurance rates Allowing the employee to sit at home leads to otherwise avoidable litigation the lawyer ads playing on TV during the day are enticing Hearing the local firm got $1M for another injured worker leads your employee to see dollar signs flashing in neon lights

7CONTINUED ON PAGE 8

SPECIAL ARTICLE

It also fosters wallowing and pain-focused behavior which is detrimental to psychological health and makes it harder to convince someone shehe is capable of working It is difficult if not impossible for many to work while taking medications as such the RTW lessens the amount of medication used and lowers the risk of opioid addiction Bringing your injured worker back makes it impossible for herhis attorney to argue shehe is too injured to work Lastly do not abandon your employee show you care by doing what you can to ensure shehe still has income to pay the rent and feed the family

It may not be an easy task to bring back an injured worker but the financial benefits can be significant and as noted it goes well-beyond the money it is beneficial to the physical and mental health of your employee too and that is a winwin

Amy Siegel Oran is a Partner of Kelley Kronenbergrsquos West Palm Beach office concentrating her practice exclusively on Workersrsquo Compensation defense She focuses her practice on the defense of workersrsquo compensation claims on behalf of employers insurance carriers self-insured corporations third party administrators and claims servicing agencies

Her background includes extensive experience with all aspects of Litigation and Appellate Law Amy is certified by the state of Florida to conduct Continuing Education courses and regularly presents seminars on a wide variety of legal matters She has served on the Workersrsquo Compensation Practice Committee for the Palm Beach County Bar Association playing an integral role in planning the annual Bench Bar Conference as well as speaking at the Conference on numerous occasions Additionally Amy provides regular training seminars to clients advising supervisors managers and employers on proper claim reporting and handling techniques

Amy is also very active with the South Florida affiliate of Susan G Komen After three years on the organizationrsquos Board of Directors Amy now proudly serves as Vice President for the Board of Directors for both the Executive Board and Executive Committees of Susan G Komen Florida

8

This training resource gives our members unlimited access to Training Network NOWrsquos extensive video streaming library of videos covering workplace safety driving safety construction safety and human resourcelegal compliance Video titles are available in both English and Spanish to support your organizations training initiatives Features of Training Network NOW streaming video service include

bull An easily accessible extensive video library of over 680 videos

bull Video course materials to include quizzes completion certificates and leader guides

bull Tablet amp Mobile Capable ndash Now you can watch videos on your preferred mobile device such as tabletsand smartphones

As part of Preferredrsquos initiative to provide continuous improvements for productsservices offered to our members we highly encourage you to considering utilizing the Training Network NOW video streaming service to assist you with your safety and risk management training needs

To learn more on how your organization can take advantage of this exciting free training resource please contact Mike Stephens Senior Loss Control Specialist at Ph 321 832-1658Email mstephenspublicrisk com or your respective regional Loss Control Consultant

Video Streaming Service for Preferred Members

NEWS EXTRA

That Settles It The Florida Supreme Court Resolves Conflict and Extends Stand Your Ground Immunity Protections to Law Enforcement Officers By J David Marsey Esquire - Rumberger Kirk amp Caldwell

The debate about Floridarsquos statutory immunity from criminal and civil liability commonly referred to as the ldquoStand Your Groundrdquo law has reached far and wide Proponents and opponents alike have opined that the law needs revision and courts have disagreed over the application of its terms One area of frequent disagreement involves the application of the immunity to law enforcement officers acting within the course and scope of their employment

The Florida Supreme Court has finally spoken and in doing so resolved the conflict between Florida District Courts of Appeal After consideration of two conflicting lower court decisions and interpreting the law itself the Court held that the clear and unambiguous statutory language affords law enforcement officers the same immunity provisions available to the public at large1

At the core of this dispute lies two similar but substantively different statutes Section 77605 Florida Statutes provides that a law enforcement officer need not retreat or desist from efforts to make a lawful arrest because of actual or threatened resistance from the person to be arrested It also authorizes an officer to use any force which is (1) reasonably necessary to defend himself or herself or another person from harm while making the arrest (2) necessarily committed in retaking an escaped felon and (3) necessarily committed in arresting a felon fleeing from justice Section 776032 Florida Statutes Floridarsquos Stand Your Ground law provides that a ldquopersonrdquo who uses or threatens to use lawful force is immune from criminal prosecution and civil action for the use or threatened use of force if enumerated circumstances exist

The interplay between these two statutes was examined by the Second District Court of Appeal in State v Caamano2 in 2012 In that case an officer was criminally charged with attempted battery and unsuccessfully asserted Stand Your Ground immunity pursuant to Section 776032 In denying the officerrsquos entitlement to immunity from prosecution the Court reasoned that the more specific statutory language applicable to law enforcement officers contained in Section 77605 Florida Statutes controlled over the more general provisions contained in Section 776032 that applied to the public at large Therefore the court reasoned the Stand Your Ground immunity provision was unavailable to an on-duty police officer for force used in the making of an arrest

The issue was revisited by the Fourth District Court of Appeal in State v Peraza 3 in 2017 In that case an officer successfully moved to dismiss an indictment against him for manslaughter with a firearm arising from the officer shooting a suspect who pointed an air rifle at him The State appealed the dismissal based on the Caamano Courtrsquos reasoning The Fourth DCA disagreed with Caamano and affirmed the dismissal of the indictment In that case the court reasoned that an officer using force while making an arrest was not limited by the specific statute applying to officers but was also entitled to seek immunity under Section 776032 Florida Statutes The Peraza Court held that despite the specific statute applying to law enforcement officers are also ldquopersonsrdquo under the law and that nothing under Floridarsquos Stand Your Ground law excludes an officer making an arrest from the immunity provisions available to the general public The Peraza Court certified the conflict with Caamano and certified the question as one of great public importance thus paving the way for review by the Florida Supreme Court

In its review of Peraza the Florida Supreme Court recognized the Caamano Courtrsquos efforts to harmonize different statutory provisions that applied to law enforcement and the more general Stand Your Ground immunity statute Treating the case as one of statutory construction the Supreme Court agreed with the lower courtrsquos rationale and found that the two statutory provisions provided overlapping protections for law enforcement officers making an arrest A noteworthy distinction recognized by the Supreme Court but not considered by either of the lower courts was the distinction between a defense and an immunity

9CONTINUED ON PAGE 10

SPECIAL ARTICLE

While the more specific law enforcement statue provides a defense for the use of force during an arrest it does not include any immunity provisions Conversely the Stand Your Ground statute provides an ldquoimmunity from prosecutionrdquo that is afforded to ldquoany personrdquo who uses lawful force under enumerated circumstances Since there is no language excluding a law enforcement officer from the clear and unambiguous application to a ldquopersonrdquo a law enforcement officer is entitled to assert the Stand Your Ground immunity defense

The Supreme Courtrsquos decision reaffirms that ldquoofficers are people toordquo and that they are entitled to the full use of the Stand Your Ground immunity defense applicable to the public at large whether they are making an arrest or not The importance of this decision cannot be overstated because this now provides officers viable legal defenses to prevent lengthy and costly criminal proceedings if they are able to show through a pre-trial hearing an entitlement to immunity Although the Supreme Court in Peraza addressed only the criminal charges before it Floridarsquos Stand Your Ground immunity provisions provides for immunity for both criminal and civil liability Therefore depending on the specific facts of the case officers facing civil actions for the excessive use of force may have an additional opportunity to obtain dismissal prior to trial and the denial of immunity may also provide the potential for pre-trial appellate review Law enforcement executives and their counsel should familiarize themselves with these new standards and should continue to monitor this developing area of law

1 State v Peraza Case No SC17-1978 (Fla Dec 13 2018) 2 105 So 3d 18 (Fla 2d DCA 2012) 3 226 So 3d 937 (Fla 4th DCA 2017)

J David Marsey is a former police officer investigator and prosecutor and is a partner at the law firm of Rumberger Kirk amp Caldwell in Tallahassee Florida He defends and advises corporations government entities and their employees on casualty employment and constitutional issues throughout the state For more information please visit wwwrumbergercom

10

We are looking forward to seeing you there

2019 MEMBER EDUCATION DAY

April 4th 2019

Orlando World Center Marriott

BREAKTIME FUN -N- GAMES

Hurricane History Trivia 1 What hurricane holds the record for smallest eye

a Wilma b Andrew c Allen d Betty

2 What hurricane holds the record for longest endurance

a Alicia b Cesar c John d Celia

3 What hurricane holds the record for being the largest storm in diameter

a Ingrid b Erika c Hugo d Sandy

4 What Atlantic hurricane holds the record for traveling the furthest distance

a Cloe b Matthew c Faith d Engelbert

5 What Atlantic hurricane holds the record for longest duration as a category 5

a Irma b Otto c Rita d Charley

6 What year holds the record for the least amount of storms to form in a season

a 1983 b 1990 c 2012 d 1969

7 Who is the individual that is given credit as being the first to name hurricanes

a Louis Huricain b King Edward c Clement Wragge d Richard Nixon

8 Who is the individual given credit for being the first to fly safely through a hurricane

a Neal Armstrong b Chuck Yeager c Joseph Duckworth d Amelia Earhart

9 What year holds the record for most named storms to form in one storm season in the Atlantic

a 1974 b 2005 c 1998 d 2004

10 What hurricane holds the record for highest maximum sustained wind speed and lowest barometric pressure

a Allen b Wilma c Mitch d Patricia

11  Where did the word lsquoHurricanerdquo derive from

a Nickname of a famous Caribbean pirate b Mayan god of wind and storm c A mythical Norse sea creature

12 Hurricanes use to be given female names but are now given male and female names On what year did this begin

a 2000 b 1979 c 1998 d 1986

KEY STAFF CONTACTSPlease visit wwwpgitorgResourcesSpring 2019Article Index for Hurricane History Trivia answer key

As a member of Preferred your first call should always be to your agent if however you need help beyond your agent please feel free to contact us as indicated below

Marketing Operations Loss Control Claims marketingpublicriskcom jmartinpublicriskcom mstephenspublicriskcom ftuckerpgcs-tpacom 321-832-1455 321-832-1691 321-832-1658 321-832-1401 Kurt Heyman Jennifer Martin Mike Stephens Fred Tucker

11

Standard Presort

US Postage PAID

Permit 1979 Orlando FL

P O BOX 958455 - Lake Mary FL 32795-8455

Page 8: Preferred News Spring 2019Public Risk Underwriters of Florida, Inc. During Florida’s hurricane season employees are exposed to increased risk of injury. Employees that are most likely

SPECIAL ARTICLE

It also fosters wallowing and pain-focused behavior which is detrimental to psychological health and makes it harder to convince someone shehe is capable of working It is difficult if not impossible for many to work while taking medications as such the RTW lessens the amount of medication used and lowers the risk of opioid addiction Bringing your injured worker back makes it impossible for herhis attorney to argue shehe is too injured to work Lastly do not abandon your employee show you care by doing what you can to ensure shehe still has income to pay the rent and feed the family

It may not be an easy task to bring back an injured worker but the financial benefits can be significant and as noted it goes well-beyond the money it is beneficial to the physical and mental health of your employee too and that is a winwin

Amy Siegel Oran is a Partner of Kelley Kronenbergrsquos West Palm Beach office concentrating her practice exclusively on Workersrsquo Compensation defense She focuses her practice on the defense of workersrsquo compensation claims on behalf of employers insurance carriers self-insured corporations third party administrators and claims servicing agencies

Her background includes extensive experience with all aspects of Litigation and Appellate Law Amy is certified by the state of Florida to conduct Continuing Education courses and regularly presents seminars on a wide variety of legal matters She has served on the Workersrsquo Compensation Practice Committee for the Palm Beach County Bar Association playing an integral role in planning the annual Bench Bar Conference as well as speaking at the Conference on numerous occasions Additionally Amy provides regular training seminars to clients advising supervisors managers and employers on proper claim reporting and handling techniques

Amy is also very active with the South Florida affiliate of Susan G Komen After three years on the organizationrsquos Board of Directors Amy now proudly serves as Vice President for the Board of Directors for both the Executive Board and Executive Committees of Susan G Komen Florida

8

This training resource gives our members unlimited access to Training Network NOWrsquos extensive video streaming library of videos covering workplace safety driving safety construction safety and human resourcelegal compliance Video titles are available in both English and Spanish to support your organizations training initiatives Features of Training Network NOW streaming video service include

bull An easily accessible extensive video library of over 680 videos

bull Video course materials to include quizzes completion certificates and leader guides

bull Tablet amp Mobile Capable ndash Now you can watch videos on your preferred mobile device such as tabletsand smartphones

As part of Preferredrsquos initiative to provide continuous improvements for productsservices offered to our members we highly encourage you to considering utilizing the Training Network NOW video streaming service to assist you with your safety and risk management training needs

To learn more on how your organization can take advantage of this exciting free training resource please contact Mike Stephens Senior Loss Control Specialist at Ph 321 832-1658Email mstephenspublicrisk com or your respective regional Loss Control Consultant

Video Streaming Service for Preferred Members

NEWS EXTRA

That Settles It The Florida Supreme Court Resolves Conflict and Extends Stand Your Ground Immunity Protections to Law Enforcement Officers By J David Marsey Esquire - Rumberger Kirk amp Caldwell

The debate about Floridarsquos statutory immunity from criminal and civil liability commonly referred to as the ldquoStand Your Groundrdquo law has reached far and wide Proponents and opponents alike have opined that the law needs revision and courts have disagreed over the application of its terms One area of frequent disagreement involves the application of the immunity to law enforcement officers acting within the course and scope of their employment

The Florida Supreme Court has finally spoken and in doing so resolved the conflict between Florida District Courts of Appeal After consideration of two conflicting lower court decisions and interpreting the law itself the Court held that the clear and unambiguous statutory language affords law enforcement officers the same immunity provisions available to the public at large1

At the core of this dispute lies two similar but substantively different statutes Section 77605 Florida Statutes provides that a law enforcement officer need not retreat or desist from efforts to make a lawful arrest because of actual or threatened resistance from the person to be arrested It also authorizes an officer to use any force which is (1) reasonably necessary to defend himself or herself or another person from harm while making the arrest (2) necessarily committed in retaking an escaped felon and (3) necessarily committed in arresting a felon fleeing from justice Section 776032 Florida Statutes Floridarsquos Stand Your Ground law provides that a ldquopersonrdquo who uses or threatens to use lawful force is immune from criminal prosecution and civil action for the use or threatened use of force if enumerated circumstances exist

The interplay between these two statutes was examined by the Second District Court of Appeal in State v Caamano2 in 2012 In that case an officer was criminally charged with attempted battery and unsuccessfully asserted Stand Your Ground immunity pursuant to Section 776032 In denying the officerrsquos entitlement to immunity from prosecution the Court reasoned that the more specific statutory language applicable to law enforcement officers contained in Section 77605 Florida Statutes controlled over the more general provisions contained in Section 776032 that applied to the public at large Therefore the court reasoned the Stand Your Ground immunity provision was unavailable to an on-duty police officer for force used in the making of an arrest

The issue was revisited by the Fourth District Court of Appeal in State v Peraza 3 in 2017 In that case an officer successfully moved to dismiss an indictment against him for manslaughter with a firearm arising from the officer shooting a suspect who pointed an air rifle at him The State appealed the dismissal based on the Caamano Courtrsquos reasoning The Fourth DCA disagreed with Caamano and affirmed the dismissal of the indictment In that case the court reasoned that an officer using force while making an arrest was not limited by the specific statute applying to officers but was also entitled to seek immunity under Section 776032 Florida Statutes The Peraza Court held that despite the specific statute applying to law enforcement officers are also ldquopersonsrdquo under the law and that nothing under Floridarsquos Stand Your Ground law excludes an officer making an arrest from the immunity provisions available to the general public The Peraza Court certified the conflict with Caamano and certified the question as one of great public importance thus paving the way for review by the Florida Supreme Court

In its review of Peraza the Florida Supreme Court recognized the Caamano Courtrsquos efforts to harmonize different statutory provisions that applied to law enforcement and the more general Stand Your Ground immunity statute Treating the case as one of statutory construction the Supreme Court agreed with the lower courtrsquos rationale and found that the two statutory provisions provided overlapping protections for law enforcement officers making an arrest A noteworthy distinction recognized by the Supreme Court but not considered by either of the lower courts was the distinction between a defense and an immunity

9CONTINUED ON PAGE 10

SPECIAL ARTICLE

While the more specific law enforcement statue provides a defense for the use of force during an arrest it does not include any immunity provisions Conversely the Stand Your Ground statute provides an ldquoimmunity from prosecutionrdquo that is afforded to ldquoany personrdquo who uses lawful force under enumerated circumstances Since there is no language excluding a law enforcement officer from the clear and unambiguous application to a ldquopersonrdquo a law enforcement officer is entitled to assert the Stand Your Ground immunity defense

The Supreme Courtrsquos decision reaffirms that ldquoofficers are people toordquo and that they are entitled to the full use of the Stand Your Ground immunity defense applicable to the public at large whether they are making an arrest or not The importance of this decision cannot be overstated because this now provides officers viable legal defenses to prevent lengthy and costly criminal proceedings if they are able to show through a pre-trial hearing an entitlement to immunity Although the Supreme Court in Peraza addressed only the criminal charges before it Floridarsquos Stand Your Ground immunity provisions provides for immunity for both criminal and civil liability Therefore depending on the specific facts of the case officers facing civil actions for the excessive use of force may have an additional opportunity to obtain dismissal prior to trial and the denial of immunity may also provide the potential for pre-trial appellate review Law enforcement executives and their counsel should familiarize themselves with these new standards and should continue to monitor this developing area of law

1 State v Peraza Case No SC17-1978 (Fla Dec 13 2018) 2 105 So 3d 18 (Fla 2d DCA 2012) 3 226 So 3d 937 (Fla 4th DCA 2017)

J David Marsey is a former police officer investigator and prosecutor and is a partner at the law firm of Rumberger Kirk amp Caldwell in Tallahassee Florida He defends and advises corporations government entities and their employees on casualty employment and constitutional issues throughout the state For more information please visit wwwrumbergercom

10

We are looking forward to seeing you there

2019 MEMBER EDUCATION DAY

April 4th 2019

Orlando World Center Marriott

BREAKTIME FUN -N- GAMES

Hurricane History Trivia 1 What hurricane holds the record for smallest eye

a Wilma b Andrew c Allen d Betty

2 What hurricane holds the record for longest endurance

a Alicia b Cesar c John d Celia

3 What hurricane holds the record for being the largest storm in diameter

a Ingrid b Erika c Hugo d Sandy

4 What Atlantic hurricane holds the record for traveling the furthest distance

a Cloe b Matthew c Faith d Engelbert

5 What Atlantic hurricane holds the record for longest duration as a category 5

a Irma b Otto c Rita d Charley

6 What year holds the record for the least amount of storms to form in a season

a 1983 b 1990 c 2012 d 1969

7 Who is the individual that is given credit as being the first to name hurricanes

a Louis Huricain b King Edward c Clement Wragge d Richard Nixon

8 Who is the individual given credit for being the first to fly safely through a hurricane

a Neal Armstrong b Chuck Yeager c Joseph Duckworth d Amelia Earhart

9 What year holds the record for most named storms to form in one storm season in the Atlantic

a 1974 b 2005 c 1998 d 2004

10 What hurricane holds the record for highest maximum sustained wind speed and lowest barometric pressure

a Allen b Wilma c Mitch d Patricia

11  Where did the word lsquoHurricanerdquo derive from

a Nickname of a famous Caribbean pirate b Mayan god of wind and storm c A mythical Norse sea creature

12 Hurricanes use to be given female names but are now given male and female names On what year did this begin

a 2000 b 1979 c 1998 d 1986

KEY STAFF CONTACTSPlease visit wwwpgitorgResourcesSpring 2019Article Index for Hurricane History Trivia answer key

As a member of Preferred your first call should always be to your agent if however you need help beyond your agent please feel free to contact us as indicated below

Marketing Operations Loss Control Claims marketingpublicriskcom jmartinpublicriskcom mstephenspublicriskcom ftuckerpgcs-tpacom 321-832-1455 321-832-1691 321-832-1658 321-832-1401 Kurt Heyman Jennifer Martin Mike Stephens Fred Tucker

11

Standard Presort

US Postage PAID

Permit 1979 Orlando FL

P O BOX 958455 - Lake Mary FL 32795-8455

Page 9: Preferred News Spring 2019Public Risk Underwriters of Florida, Inc. During Florida’s hurricane season employees are exposed to increased risk of injury. Employees that are most likely

NEWS EXTRA

That Settles It The Florida Supreme Court Resolves Conflict and Extends Stand Your Ground Immunity Protections to Law Enforcement Officers By J David Marsey Esquire - Rumberger Kirk amp Caldwell

The debate about Floridarsquos statutory immunity from criminal and civil liability commonly referred to as the ldquoStand Your Groundrdquo law has reached far and wide Proponents and opponents alike have opined that the law needs revision and courts have disagreed over the application of its terms One area of frequent disagreement involves the application of the immunity to law enforcement officers acting within the course and scope of their employment

The Florida Supreme Court has finally spoken and in doing so resolved the conflict between Florida District Courts of Appeal After consideration of two conflicting lower court decisions and interpreting the law itself the Court held that the clear and unambiguous statutory language affords law enforcement officers the same immunity provisions available to the public at large1

At the core of this dispute lies two similar but substantively different statutes Section 77605 Florida Statutes provides that a law enforcement officer need not retreat or desist from efforts to make a lawful arrest because of actual or threatened resistance from the person to be arrested It also authorizes an officer to use any force which is (1) reasonably necessary to defend himself or herself or another person from harm while making the arrest (2) necessarily committed in retaking an escaped felon and (3) necessarily committed in arresting a felon fleeing from justice Section 776032 Florida Statutes Floridarsquos Stand Your Ground law provides that a ldquopersonrdquo who uses or threatens to use lawful force is immune from criminal prosecution and civil action for the use or threatened use of force if enumerated circumstances exist

The interplay between these two statutes was examined by the Second District Court of Appeal in State v Caamano2 in 2012 In that case an officer was criminally charged with attempted battery and unsuccessfully asserted Stand Your Ground immunity pursuant to Section 776032 In denying the officerrsquos entitlement to immunity from prosecution the Court reasoned that the more specific statutory language applicable to law enforcement officers contained in Section 77605 Florida Statutes controlled over the more general provisions contained in Section 776032 that applied to the public at large Therefore the court reasoned the Stand Your Ground immunity provision was unavailable to an on-duty police officer for force used in the making of an arrest

The issue was revisited by the Fourth District Court of Appeal in State v Peraza 3 in 2017 In that case an officer successfully moved to dismiss an indictment against him for manslaughter with a firearm arising from the officer shooting a suspect who pointed an air rifle at him The State appealed the dismissal based on the Caamano Courtrsquos reasoning The Fourth DCA disagreed with Caamano and affirmed the dismissal of the indictment In that case the court reasoned that an officer using force while making an arrest was not limited by the specific statute applying to officers but was also entitled to seek immunity under Section 776032 Florida Statutes The Peraza Court held that despite the specific statute applying to law enforcement officers are also ldquopersonsrdquo under the law and that nothing under Floridarsquos Stand Your Ground law excludes an officer making an arrest from the immunity provisions available to the general public The Peraza Court certified the conflict with Caamano and certified the question as one of great public importance thus paving the way for review by the Florida Supreme Court

In its review of Peraza the Florida Supreme Court recognized the Caamano Courtrsquos efforts to harmonize different statutory provisions that applied to law enforcement and the more general Stand Your Ground immunity statute Treating the case as one of statutory construction the Supreme Court agreed with the lower courtrsquos rationale and found that the two statutory provisions provided overlapping protections for law enforcement officers making an arrest A noteworthy distinction recognized by the Supreme Court but not considered by either of the lower courts was the distinction between a defense and an immunity

9CONTINUED ON PAGE 10

SPECIAL ARTICLE

While the more specific law enforcement statue provides a defense for the use of force during an arrest it does not include any immunity provisions Conversely the Stand Your Ground statute provides an ldquoimmunity from prosecutionrdquo that is afforded to ldquoany personrdquo who uses lawful force under enumerated circumstances Since there is no language excluding a law enforcement officer from the clear and unambiguous application to a ldquopersonrdquo a law enforcement officer is entitled to assert the Stand Your Ground immunity defense

The Supreme Courtrsquos decision reaffirms that ldquoofficers are people toordquo and that they are entitled to the full use of the Stand Your Ground immunity defense applicable to the public at large whether they are making an arrest or not The importance of this decision cannot be overstated because this now provides officers viable legal defenses to prevent lengthy and costly criminal proceedings if they are able to show through a pre-trial hearing an entitlement to immunity Although the Supreme Court in Peraza addressed only the criminal charges before it Floridarsquos Stand Your Ground immunity provisions provides for immunity for both criminal and civil liability Therefore depending on the specific facts of the case officers facing civil actions for the excessive use of force may have an additional opportunity to obtain dismissal prior to trial and the denial of immunity may also provide the potential for pre-trial appellate review Law enforcement executives and their counsel should familiarize themselves with these new standards and should continue to monitor this developing area of law

1 State v Peraza Case No SC17-1978 (Fla Dec 13 2018) 2 105 So 3d 18 (Fla 2d DCA 2012) 3 226 So 3d 937 (Fla 4th DCA 2017)

J David Marsey is a former police officer investigator and prosecutor and is a partner at the law firm of Rumberger Kirk amp Caldwell in Tallahassee Florida He defends and advises corporations government entities and their employees on casualty employment and constitutional issues throughout the state For more information please visit wwwrumbergercom

10

We are looking forward to seeing you there

2019 MEMBER EDUCATION DAY

April 4th 2019

Orlando World Center Marriott

BREAKTIME FUN -N- GAMES

Hurricane History Trivia 1 What hurricane holds the record for smallest eye

a Wilma b Andrew c Allen d Betty

2 What hurricane holds the record for longest endurance

a Alicia b Cesar c John d Celia

3 What hurricane holds the record for being the largest storm in diameter

a Ingrid b Erika c Hugo d Sandy

4 What Atlantic hurricane holds the record for traveling the furthest distance

a Cloe b Matthew c Faith d Engelbert

5 What Atlantic hurricane holds the record for longest duration as a category 5

a Irma b Otto c Rita d Charley

6 What year holds the record for the least amount of storms to form in a season

a 1983 b 1990 c 2012 d 1969

7 Who is the individual that is given credit as being the first to name hurricanes

a Louis Huricain b King Edward c Clement Wragge d Richard Nixon

8 Who is the individual given credit for being the first to fly safely through a hurricane

a Neal Armstrong b Chuck Yeager c Joseph Duckworth d Amelia Earhart

9 What year holds the record for most named storms to form in one storm season in the Atlantic

a 1974 b 2005 c 1998 d 2004

10 What hurricane holds the record for highest maximum sustained wind speed and lowest barometric pressure

a Allen b Wilma c Mitch d Patricia

11  Where did the word lsquoHurricanerdquo derive from

a Nickname of a famous Caribbean pirate b Mayan god of wind and storm c A mythical Norse sea creature

12 Hurricanes use to be given female names but are now given male and female names On what year did this begin

a 2000 b 1979 c 1998 d 1986

KEY STAFF CONTACTSPlease visit wwwpgitorgResourcesSpring 2019Article Index for Hurricane History Trivia answer key

As a member of Preferred your first call should always be to your agent if however you need help beyond your agent please feel free to contact us as indicated below

Marketing Operations Loss Control Claims marketingpublicriskcom jmartinpublicriskcom mstephenspublicriskcom ftuckerpgcs-tpacom 321-832-1455 321-832-1691 321-832-1658 321-832-1401 Kurt Heyman Jennifer Martin Mike Stephens Fred Tucker

11

Standard Presort

US Postage PAID

Permit 1979 Orlando FL

P O BOX 958455 - Lake Mary FL 32795-8455

Page 10: Preferred News Spring 2019Public Risk Underwriters of Florida, Inc. During Florida’s hurricane season employees are exposed to increased risk of injury. Employees that are most likely

SPECIAL ARTICLE

While the more specific law enforcement statue provides a defense for the use of force during an arrest it does not include any immunity provisions Conversely the Stand Your Ground statute provides an ldquoimmunity from prosecutionrdquo that is afforded to ldquoany personrdquo who uses lawful force under enumerated circumstances Since there is no language excluding a law enforcement officer from the clear and unambiguous application to a ldquopersonrdquo a law enforcement officer is entitled to assert the Stand Your Ground immunity defense

The Supreme Courtrsquos decision reaffirms that ldquoofficers are people toordquo and that they are entitled to the full use of the Stand Your Ground immunity defense applicable to the public at large whether they are making an arrest or not The importance of this decision cannot be overstated because this now provides officers viable legal defenses to prevent lengthy and costly criminal proceedings if they are able to show through a pre-trial hearing an entitlement to immunity Although the Supreme Court in Peraza addressed only the criminal charges before it Floridarsquos Stand Your Ground immunity provisions provides for immunity for both criminal and civil liability Therefore depending on the specific facts of the case officers facing civil actions for the excessive use of force may have an additional opportunity to obtain dismissal prior to trial and the denial of immunity may also provide the potential for pre-trial appellate review Law enforcement executives and their counsel should familiarize themselves with these new standards and should continue to monitor this developing area of law

1 State v Peraza Case No SC17-1978 (Fla Dec 13 2018) 2 105 So 3d 18 (Fla 2d DCA 2012) 3 226 So 3d 937 (Fla 4th DCA 2017)

J David Marsey is a former police officer investigator and prosecutor and is a partner at the law firm of Rumberger Kirk amp Caldwell in Tallahassee Florida He defends and advises corporations government entities and their employees on casualty employment and constitutional issues throughout the state For more information please visit wwwrumbergercom

10

We are looking forward to seeing you there

2019 MEMBER EDUCATION DAY

April 4th 2019

Orlando World Center Marriott

BREAKTIME FUN -N- GAMES

Hurricane History Trivia 1 What hurricane holds the record for smallest eye

a Wilma b Andrew c Allen d Betty

2 What hurricane holds the record for longest endurance

a Alicia b Cesar c John d Celia

3 What hurricane holds the record for being the largest storm in diameter

a Ingrid b Erika c Hugo d Sandy

4 What Atlantic hurricane holds the record for traveling the furthest distance

a Cloe b Matthew c Faith d Engelbert

5 What Atlantic hurricane holds the record for longest duration as a category 5

a Irma b Otto c Rita d Charley

6 What year holds the record for the least amount of storms to form in a season

a 1983 b 1990 c 2012 d 1969

7 Who is the individual that is given credit as being the first to name hurricanes

a Louis Huricain b King Edward c Clement Wragge d Richard Nixon

8 Who is the individual given credit for being the first to fly safely through a hurricane

a Neal Armstrong b Chuck Yeager c Joseph Duckworth d Amelia Earhart

9 What year holds the record for most named storms to form in one storm season in the Atlantic

a 1974 b 2005 c 1998 d 2004

10 What hurricane holds the record for highest maximum sustained wind speed and lowest barometric pressure

a Allen b Wilma c Mitch d Patricia

11  Where did the word lsquoHurricanerdquo derive from

a Nickname of a famous Caribbean pirate b Mayan god of wind and storm c A mythical Norse sea creature

12 Hurricanes use to be given female names but are now given male and female names On what year did this begin

a 2000 b 1979 c 1998 d 1986

KEY STAFF CONTACTSPlease visit wwwpgitorgResourcesSpring 2019Article Index for Hurricane History Trivia answer key

As a member of Preferred your first call should always be to your agent if however you need help beyond your agent please feel free to contact us as indicated below

Marketing Operations Loss Control Claims marketingpublicriskcom jmartinpublicriskcom mstephenspublicriskcom ftuckerpgcs-tpacom 321-832-1455 321-832-1691 321-832-1658 321-832-1401 Kurt Heyman Jennifer Martin Mike Stephens Fred Tucker

11

Standard Presort

US Postage PAID

Permit 1979 Orlando FL

P O BOX 958455 - Lake Mary FL 32795-8455

Page 11: Preferred News Spring 2019Public Risk Underwriters of Florida, Inc. During Florida’s hurricane season employees are exposed to increased risk of injury. Employees that are most likely

BREAKTIME FUN -N- GAMES

Hurricane History Trivia 1 What hurricane holds the record for smallest eye

a Wilma b Andrew c Allen d Betty

2 What hurricane holds the record for longest endurance

a Alicia b Cesar c John d Celia

3 What hurricane holds the record for being the largest storm in diameter

a Ingrid b Erika c Hugo d Sandy

4 What Atlantic hurricane holds the record for traveling the furthest distance

a Cloe b Matthew c Faith d Engelbert

5 What Atlantic hurricane holds the record for longest duration as a category 5

a Irma b Otto c Rita d Charley

6 What year holds the record for the least amount of storms to form in a season

a 1983 b 1990 c 2012 d 1969

7 Who is the individual that is given credit as being the first to name hurricanes

a Louis Huricain b King Edward c Clement Wragge d Richard Nixon

8 Who is the individual given credit for being the first to fly safely through a hurricane

a Neal Armstrong b Chuck Yeager c Joseph Duckworth d Amelia Earhart

9 What year holds the record for most named storms to form in one storm season in the Atlantic

a 1974 b 2005 c 1998 d 2004

10 What hurricane holds the record for highest maximum sustained wind speed and lowest barometric pressure

a Allen b Wilma c Mitch d Patricia

11  Where did the word lsquoHurricanerdquo derive from

a Nickname of a famous Caribbean pirate b Mayan god of wind and storm c A mythical Norse sea creature

12 Hurricanes use to be given female names but are now given male and female names On what year did this begin

a 2000 b 1979 c 1998 d 1986

KEY STAFF CONTACTSPlease visit wwwpgitorgResourcesSpring 2019Article Index for Hurricane History Trivia answer key

As a member of Preferred your first call should always be to your agent if however you need help beyond your agent please feel free to contact us as indicated below

Marketing Operations Loss Control Claims marketingpublicriskcom jmartinpublicriskcom mstephenspublicriskcom ftuckerpgcs-tpacom 321-832-1455 321-832-1691 321-832-1658 321-832-1401 Kurt Heyman Jennifer Martin Mike Stephens Fred Tucker

11

Standard Presort

US Postage PAID

Permit 1979 Orlando FL

P O BOX 958455 - Lake Mary FL 32795-8455

Page 12: Preferred News Spring 2019Public Risk Underwriters of Florida, Inc. During Florida’s hurricane season employees are exposed to increased risk of injury. Employees that are most likely

Standard Presort

US Postage PAID

Permit 1979 Orlando FL

P O BOX 958455 - Lake Mary FL 32795-8455