A large part of my law practice is defending business owners and property owners in ADA access lawsuits. One of the first questions I am asked is whether the defendant should contact their liability insurance provider regarding coverage for the lawsuit. I have heard mixed results.
Most ADA Lawsuits Don’t Trigger Coverage
In my experience, I have found that most liability policies have declined to accept liability in these ADA access-related lawsuits.
Most ADA lawsuits are plead as federal civil rights cases. If you carefully read your insurance policy section on exclusions, you will find that civil rights lawsuits are almost always excluded.
Deductibles often are a problem too. Depending on your deductible, it may or may not make financial sense to go through your insurance company. Each ADA case is different, and a good attorney can advise you regarding your exposure to liability at the very outset of one of these cases.
Not All Hope is Lost
I recently was involved in an ADA lawsuit where the liability carrier ended up taking the case. The grounds were very narrow.
In the lawsuit, it was alleged that employees of the business had done something that caused the ADA access violation. The carrier decided that this act would fall under the employee liability provision of the insurance policy.
A common employee practice may be an employee unlawfully denying access to a service animal. This is much different than architectural barriers or signage issues that almost never trigger coverage.
Always Tender the Case to Insurance
You never know what your insurance carrier will do with your ADA lawsuit until you ask. If you are served with an ADA lawsuit, I see no harm in tendering the case to your insurance carrier for defense. The worst that can happen is that they say “no.”
I represent business owners and property owners all over Northern California in ADA lawsuits. Please contact my office at (916) 333-2222 if you have any questions about how to proceed with an ADA claim or notice of litigation.