Vicious attacks: how does insurance help victims and families impacted by brutal animal attacks?

Posted on September 30, 2010.

Author: Frank N Darras

In February, a 12,000-pound killer whale named Tilikum killed a SeaWorld animal trainer during a show in Orlando, Fla.

According to the autopsy, Dawn Brancheau, a veteran trainer, died of multiple traumatic injuries and drowning after the orca–which was involved in two prior deaths–apparently grabbed Brancheau by her ponytail and dragged her underneath the water in the pool.

Since the accident occurred at work, Brancheau's spouse likely will be entitled to workers' compensation death benefits, said Philip Chanfrau, a Florida personal injury trial attorney.

In Florida, the death benefits under workers' compensation provide up to $7,500 for burial benefits, as well as compensation to dependents and educational benefits to a surviving spouse, said Ed Graves, a professor of insurance at The American College. "The amount of the benefits depends on the wages of the deceased worker and the number and ages of the dependents. There is an aggregate limit on all combined benefits of $150,000."

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He said there also may be employer-provided life insurance benefits, along with individual life insurance coverage of the deceased. "And, there may be death benefit coverage associated with credit cards and any professional associations the worker belonged to."

Frank Darras, a plaintiff's lawyer representing disabled insureds and a founding partner of DarrasLaw, said he hopes in this circumstance that Brancheau had "individual life insurance or group life insurance through her employer with at least one to one-and-one-half times her salary, without an ultrahazardous exclusion."

That exclusion can apply, for example, to someone who dies during an ultrahazardous activity, he said. "I tell my professional sports players, NASCAR drivers and others engaged in risk-prone occupations to buy coverage early, when they're young, don't have health problems and aren't yet in an ultrahazardous occupation."

Darras said Brancheau's family may also be entitled to "double or triple indemnity or two to three times the face amount of her life insurance" if she had accidental death and dismemberment coverage at the time of her death.

"And if she had a quality group long-term disability policy, some provide three months of eligible disability benefits as a survival benefit to her heirs."

Joshua Gold, a shareholder with Anderson Kill & Olick, said attorneys often argue whether an injured employee has to go through the workers' compensation system to get paid and compensated. "We've all seen instances where people feel workers' comp doesn't adequately protect them for certain serious on-the-job injuries. Many attorneys will try to get clients out of the system and argue that they should be entitled to bring a suit against the employer and be compensated in a different manner."

That's where general liability coverage may come into play, he said. "General liability is designed to protect business owners and operators from claims of bodily injury, among other things."

SeaWorld declined to comment on its insurance coverages.

"Interestingly, we haven't yet seen any lawsuits stem from this horrible tragedy," said Darras. "With SeaWorld, Anheuser-Busch and a consortium of companies who may own the property, the killer whale or who trained the trainers, the family may try to defeat the workers' comp exclusive remedy by looking for a third party. Who created the tank? Is there any negligence in its design? Are there safer ways to protect trainers if they have to get into the water with these whales? Was there any outside training of the trainers?" And the big question, he asked: "Why did SeaWorld allow [Brancheau] in the water with a five-ton killer whale in the first place?"

He added, "Initial reports said the whale was acting funny because of nearby construction noise. If I'm building a major construction project and violated decibel levels that day, which agitated the whale and caused a death, that's a possible, although somewhat remote, third-party involvement."

In incidences like the 2009 case of a Connecticut woman who was attacked and mauled by her friend's 200-pound pet chimpanzee, Darras said the defense will look for fault by the plaintiff.

"The first rule is always to blame the plaintiff. Did the victim aggravate the chimp in any way?

"Then, after they're finished blaming the plaintiff, most look to hide trader the skirt of the exclusive remedy holding the victim to workers' compensation benefits only," he added. "It's a hard one-two punch that knocks out many victims."

Laws impose strict liability on the owners of wild animals, Chanfrau said. According to news reports, the family of the woman attacked by the chimpanzee said they were suing the defendant for $50 million. But the plaintiff's attorney called the attack work-related, claiming the victim worked for the woman and that the animal played a promotional role in her tow-truck operation. The attorney said the family's case should be treated like a workers' comp claim.

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On May 24, Sandy Herold, the chimp's owner, died from a ruptured aortic aneurysm, so it's unclear what will happen with the lawsuit.

The officer who shot the chimpanzee during the attack also requested workers' compensation for post-traumatic anxiety and depression. But his request, according to reports, was rejected by the city because state law only provides that benefit when an officer's life is threatened by another human.

Earlier this year, however, the Connecticut Senate approved a bill allowing police officers to seek workers' compensation for stress after using deadly force on mammals.

Post-traumatic stress claims may eventually stem from the SeaWorld incident by park visitors who witnessed the tragedy. "If people believe they were traumatized by witnessing an event that was supposed to be a fun, safe family outing but instead ended in bloodshed, they may feel they need to be compensated somehow due to emotional problems," said Gold.

However, courts are leery of allowing psychological injuries because they are worried about fraudulent claims, added Chanfrau.

"Spectators of the SeaWorld incident would not have a claim for having witnessed the horrific event," he said. "NASCAR fans, for instance, see much tragedy on the tracks but they don't have any grounds to file claims."

However, it's different if a family member witnesses an event. Chanfrau said the impact rule "basically says that if a close relative or family member is physically close enough to the incident and is also physically impacted, then the psychological injuries sustained by the family member who witnessed the accident can also be recovered."

Gold suggests policyholders always inventory their policies when claims are made.

"Many claims have the potential to trigger several policies. It's important to err on the side of caution and provide notice on any policy that potentially may be impacted. If not, and the wrong policy is selected, insurers may later argue that a notice is late and there's no coverage. I've seen people surprised about the coverages they have elsewhere, or that a claim develops in a way where the initial policy no longer looks likely and another policy will actually end up providing better and broader coverage," he said.

"Insurers are paying losses because they have written insurance policies-losses that someone else has caused, either work-related through workers' comp or negligence like medical malpractice," Chanfrau said. "[If] an insurer agreed to indemnify a responsible party for a loss, [that] may be cause for which they have some legal responsibility. However, if the insured has no legal responsibility, then the insurer is off the hook."

Key Points

* Current State: Workers' compensation benefits may come into play in the recent death of a SeaWorld trainer.

* Making a Case: The defense often looks for fault by the plaintiff in animal attacks.

* Being Prepared: Policyholders should inventory policies when claims are made.