Are You Adequately Protected While Training?

Whether you are participating in a training program as a student or instructor – to include those who instruct on a part-time basis as contractors or sub-contractors – being adequately protected by the training providers’ (or in terms of a multi-tiered contractual relationship, by the Prime Contractors’) insurance is of the utmost importance.

No one expects or wants a training accident to happen, but if you are a training provider or instructor, simply hoping nothing bad will happen is not a viable risk management strategy. And if you’re a student, it most certainly is not an effective way to protect yourself or your best interests in the event you were to suffer an injury while participating in a training program. In either instance, simply assuming that the training provider or Prime Contractor has taken the steps necessary to provide adequate insurance coverage can be extremely short sighted and ultimately lead to the participants and instructors, whether a direct employee or contractor, being exposed to, or assuming, far more risk than is appropriate.

With that in mind, it must be recognized that there are risks in any and all types of training, ranging from traditional executive protection or close protection training, to those that may be perceived as posing greater risk, such as firearms training or driver training. Regardless of what type of training you are participating in – either as a student or instructor – there is a direct correlation between the level and types of risk you are exposed to (or assuming) as a participant in a training program and:

• the level of effort the training provider or Prime Contractor has put into assessing the inherent training risks, the methodology used to perform the assessment, and
• whether or not the training provider or Prime Contractor has developed, documented, and implemented a risk management plan which encompasses preventative measures, protection measures, safety-related standard operating procedures and, in the event of a safety-related incident, response protocols, as well as,
• the level and type of insurance coverage provided by the training provider or Prime Contractor

In and of itself, the absence of a clearly defined risk assessment and corresponding risk management plan speaks volumes about the training provider or Prime Contractors’ mindset and attitude toward their students and instructors. After all, from a practical standpoint, who would NOT want to adequately protect their students – those who provide the revenue the training provider or Prime Contractor needs for their business to succeed – and their instructors – those who ultimately generate the lions share of the revenue the training provider or Prime Contractors business needs to survive – from the inherent risks associated with whatever type of training that are engaged in? More importantly, from a moral and ethical perspective, who would NOT want to make every possible effort to adequately protect the people who attend their courses, along with the people who deliver that training?

Moreover, in today’s litigious society the absence of adequate insurance coverage is simply inexcusable; adequate meaning having coverage which goes above and beyond General Liability coverage which is primarily intended to protect the training provider or Prime contractor. Keeping in mind, of course, that while a student who suffers harm or an injury in training may receive some relief or compensation under a General Liability policy, that compensation may fall well short of the financial burden borne by the student. Additionally, General Liability coverage that names only the training provider or Prime Contractor as an insured party is not likely to provide any coverage to a contracted or sub-contracted instructor. This is of particular concern should the instructor be a named party in a claim encompassing joint and several liability, in which a claimant may pursue an obligation against any one party as if they were jointly liable and it becomes the responsibility of the defendants to sort out their respective proportions of liability and payment.

All things considered, as a student, one would ideally want to know that in addition to General Liability coverage the training provider or Prime Contractor’s insurance coverage includes, at a minimum, Errors and Omissions Coverage, Legal Liability Coverage that extends to all participants, Excess Medical Coverage, Weekly Indemnity Benefit, and for the worst case scenario, Accidental Death and Dismemberment Coverage. One indicator of whether or not the training provider or Prime Contractor has adequate insurance coverage is whether or not you must sign a legitimate Waiver or Release form in order to participate in the training. Such waivers are typically provided by the insurance broker or underwriter in pre-printed pads, so anything different – such as a form that appears to have been printed on the training providers LaserJet printer, or run off on a copy machine, and is not full,of legal verbiage should be cause for concern and/or require additional investigation.

Of course, the foolproof way to determine what coverage the training provider has is to ask them to provide an ACORD Insurance Certificate (ACORD stands for the Association for Cooperative Operations Research and Development, which is the insurance industry’s nonprofit standards developer). These certificates are very easy to read, and list the types and amounts of coverage the party in question has. This industry standard form also lists the broker and underwriter of the policy, so if one wanted to verify that the coverage listed was still in effect it should take just one phone call. In fact, if you have any reservations whatsoever, you may want to contact the training provider or Prime Contractor’s insurance broker listed on the form and ask them to provide you with an ACORD certificate reflecting the latest coverage directly, that’s any there is no question of the forms validity. If the training provider or Prime Contractor cannot or will not provide you this form, or the contact information for their insurance provider so that you can request one directly from them, regardless of whether you are a student or instructor, you may want to seriously consider finding another training provider.

As an instructor, particularly those who are contractors or sub-contractors, ideally you want to ensure that the training providers’ General Liability and Errors and Omissions coverage extends to owners and contractors. This will typically be annotated on the ACORD form discussed earlier. In addition, you want to be especially sure that the training provider or Prime Contractor has Participant Legal Liability coverage that extends to you. This coverage provides for response to and defends you in a suit being made against you, by a participant in course which you instruct or control. Perhaps most importantly, you want to ensure that the training provider or Prime Contractors insurance policy contains a very inclusive Additional Insured Parties clause which provides coverage, up to the policy limits in each category of coverage, to any other person (such as yourself) or any organization (such as that Sub-chapter S corporation or LLC you formed on advice of your accountant to gain tax benefits/advantages) engaged in operating, managing, sanctioning or sponsoring a course covered under the insurance policy. Absent such a clause, and in the event you did not have robust insurance coverage of your own, it is entirely possible that a contract or sub-contract instructor could find themselves directly responsible for any damages awarded to a plaintiff.

In fact, without such an inclusive Additional Insured Parties clause, the Prime Contractor may even find themselves in a precarious legal position should a sub-contractor engage in actions or behaviors that result in a liability claim. For example, and speaking purely hypothetically, let’s say:

– you own and operate a successful company whose primary business is security service delivery.

– one of your clients asks if you provide driver training services and , either out of genuine desire to service that clients needs, or because you see it as an opportunity to make a quick buck, you say “sure, we can do that”

– so you find a contractor willing to provide the required training under your company’s name.

– during the course of the training, the clients most senior security manager, while driving through an exercise under the direction of the contract instructor, flips the car he or she is driving and suffers a head injury

– now, you may get exceedingly lucky and the injured party may opt not pursue a liability claim, but that’s a rare “once in a lifetime” occurrence that you simply can’t rely on or expect to happen

– but, let’s assume for the purposes of our hypothetical scenario, the student pursues a liability claim (or perhaps worse yet, the students employer decides to pursue a claim)

At that point, absent a robust and inclusive Additional Insured Parties clause, the service provider under whose name the training is being delivered may very well find themselves a named party in the resulting lawsuit, and should the plaintiffs claim be determined to be valid, paying for the risk their sub-contractor failed to properly manage or mitigate.

When all is said and done, in a profession which prides itself on strong ethics, a risk management mindset, and a preventative approach to problem solving, not having a valid risk assessment, corresponding risk management plan AND adequate insurance coverage for one’s students is not only counter-intuitive, its simply unacceptable.

Not having coverage which extends to one’s instructors and adequately protects them against claims arising from the work they do – work that generates a profit for you – and is, in our opinion, a significant breach of professional responsibility and ethics.