We often receive phone calls and emails from new volunteers asking whether or not their organization carries Directors and Officers (D&O) coverage. First, yes, your organization carries D&O coverage to protect you as an officer of the Fraternity/Sorority. However, we wanted to take the opportunity to explain some common misconceptions regarding D&O coverage.

D&O coverage provides errors and omissions coverage to protect individuals who serve on boards of an organization and is commonly referred to as wrongful acts coverage for an organization’s directors and officers. For example, a D&O claim would arise if a third-party alleged that they didn’t approve of the money the house corporation spent on a recent renovation project. Since January of 2005, the Sorority Book of Business (the totality of our women’s fraternity/sorority clients) has had thirteen D&O claims in which the insurance company has paid indemnity or defense costs. In the last several years, we have seen an uptick in the number of D&O claims. Breach of contract and wrongful termination (typically membership) appear to be the leading allegations in those claims.

Conversely, we see the greatest exposure for our clients’ volunteers as the exposure to being named in a liability lawsuit. For these reasons, it is important to verify with any organization on whose behalf you are volunteering your time and talents that the organization carries adequate liability limits that protect the organization’s volunteers in the event of a claim. Fortunately for the volunteers of our clients, your organization has already ensured that their volunteers are protected from a liability standpoint whenever they are acting on the behalf of and in the best interests of the Fraternity/Sorority.

Refer to your Insurance Overview to verify your organization’s specific liability and umbrella limits. While acting in the capacity as a volunteer for the Fraternity/Sorority, it is important to make certain you are following your organization’s policies and guidelines in order to guarantee protection under the insurance program. As a volunteer for your fraternity/sorority or other volunteer positions that you likely hold, it is important that you arm yourself with as much information as possible about the liability associated with your position with the organizations you serve.

The one word that most aptly applies to a woman’s fraternity or sorority is the word “sisterhood,” defined loosely as collegiate women watching out for each other. It is this very value that has brought about the well-intentioned chapter programs referred to under a variety of titles, the most common being designated driver or “sober sis” programs.

Mother’s Against Drunk Driving (MADD) has encouraged better decision-making by individuals when drinking and driving. Collegiate young adults are typically less experienced drivers, and, statistically, this age group has a crash rate per mile that is four times higher than all other drivers according to the Institute for Highway Safety. As a result, we are seeing more and more interest in finding ways to keep young adults safe.

Many of our clients chapters have designated driver or “sober sis” programs, in which certain chapter members sign up to serve as designated drivers for other chapter members in hopes of providing safe transportation to and from the chapter house for those members who may be intoxicated. These types of programs are obviously very well-intentioned; however, from a risk management perspective, they surprisingly do more harm than good to the Sorority/Fraternity for some of the following reasons:

As a department, our position is this: we can only support designated driver programs when they are associated with an official event. In other words, from an insurance perspective, requiring various chapter members to take weekend evenings to stay sober and pick up other chapter members from the bars, parties, etc., is a no-no.

The following is a claim example that helps to give real-life substantiation for our position:

Background: The Lambda chapter of Zeta Pi Sorority had a “sober sis” program in which the chapter members would rotate the responsibility of staying sober for a few weekends a semester so that other chapter members would be guaranteed a designated driver on those evenings when they might need a safe ride home.

Scenario: Bridget Jones, Lambda Chapter Member, and several of her friends went out to the local bars for the evening. Because they had been drinking, Bridget called Lambda’s “sober sis” for the evening to come pick up her and her friends and return them safely to the chapter house. Laura Smith was the designated “sober sis” for that particular weekend, so she left for the bars to pick up Bridget and her friends soon after Bridget called. On their way home, Laura came to an intersection with a flashing red light. Believing that the intersection was a four-way intersection, Laura proceeded through the intersection after stopping. The intersection was actually only a two-way intersection with a flashing red light for one direction and a flashing yellow light for the other direction. The vehicle that was coming from the other direction did not stop because he had the flashing yellow light. Subsequently, Laura’s vehicle was struck by the vehicle coming from the opposite direction. Bridget suffered injuries to her upper body and face, none of which were life threatening.

Result: Bridget’s attorneys estimated her current medical costs at $250,000, and Bridget sued the following individuals and entities for over $800,000:

*The events described in this case study are based on actual events; however, the names, dates, and several other details have been changed for confidentiality purposes.

We have seen an increase in the number of requests from the collegiate chapters to participate in the concession area for an athletic event at the sports stadiums.The requests generally come about because the company managing the concessions wants the group to show evidence of insurance; thus a request to us for a Certificate of Insurance. From an underwriting standpoint, we have some concerns about this exposure and will work with each request to minimize the ultimate liability to your organization. Below are some specific guidelines:

Fortunately we are finding that the concession management firms will work with the participating chapter and will enlist their assistance for areas other than the alcohol sales of an event.

We bring this to your attention not only to point out a trend of increased requests, but also to inform you of several recent lawsuits, which supports our underwriting position on this fundraising activity.

If the person selling the alcohol was an employee of the beverage provider, then the litigation trail and liability stops there. However, if the individual who dispersed the alcohol was involved in an organization like a sorority, then there exists a very strong probability that that organization would be brought in to the lawsuit (see here and here for examples). Hence, our fear about the ultimate liability of not only the local chapter, but also the national organization would be at risk.

We encourage you to communicate these risk management guidelines within your organization to ensure that each activity being considered is addressing the many different risk exposures.

Should you have any questions or concerns on the above information, feel free to contact your Client Executive.

One of the more challenging exposures of writing a women’s fraternity or sorority is keeping the insurance and risk management recommendations “contemporary” to the changing dynamics of a campus women’s organization. As the size of the chapter increase in membership numbers, more and more sorority sisters are gravitating to alternate housing where several of them may live together. On those campuses where sorority chapter houses are not as common and/or a sorority does not physically have a chapter house, it has been common for some of the sorority sisters to secure housing together.

Irrespective of the reason, the number of “living arrangements” outside of a traditional chapter house is increasing and are being referred to and/or being considered by the campus community as the “X Sorority” chapter house. We refer to these locations as unofficial houses.

These unofficial houses pose a number of problems to the national organizations and, ultimately, to the insurance
coverage. The concerns include the following:

We have seen a significant increase in claims that are coming from those locations that are not the actual chapter house, but instead from these unofficial houses. We have identified this concern to your national leadership. We also know that, as a volunteer, you are more apt to be aware of the existence of these types of housing arrangements. Should you have one of these types of arrangements on your campus, we would ask that you bring it to the attention of your leadership. Upon their review, we have encouraged them to involve us, if needed, in addressing the housing situation specifically.

[See this article from Fraternal Law titled “Dormant Chapter Houses” for additional information]

Here’s the scenario: a Chapter Advisor calls us and explains that several chapter members have come to her concerned about a fellow chapter member who is exhibiting signs of a severe eating disorder. The Chapter Advisor asks us what to do to avoid any allegations of infringing on the chapter member’s privacy. We receive calls similar in nature to the fictionalized scenario above at least once a week. The individual calling typically sites concerns of violating the Family Educational Rights & Privacy Act (FERPA), a federal law that protects the privacy of student education records. Although the legislation originally passed in 1974, FERPA has received increased attention more recently following the tragic events at Virginia Tech and the shootings in Arizona. There are a few key facts about FERPA that are especially important for our clients’ leaders and volunteers to keep in mind:

We encourage you to familiarize yourself with your organization’s risk management policies and procedures when a member’s health is at risk. The leaders of your organizations have gone to great lengths to equip you with the resources and tools to know how to handle these types of situations. In emergency situations, we also encourage you to contact the appropriate University officials. Most campuses have trained individuals on staff that deal with emergency situations day-in and day-out.

In 1996, NPC adopted a unanimous resolution regarding peer monitoring.  The resolution states that member groups should refrain from serving as Panhellenic and Greek enforcement officials at social events and that the NPC expects its member groups to resist pressure from university personnel for their members to serve as social event peer monitors.

The resolution was adopted due to concerns that the monitors were not trained and that monitoring imposes a duty of enforcement that cannot be met, which creates a duty where heretofore none existed, therefore imposing negligence on participating groups and the fact that the universities are not indemnifying the monitors for his liability.  There was also some concern about the possibility of one group’s member retaliating against another group for some prior allegation of rule breaking.  NPC’s legal counsel and insurance carrier have advised against peer monitoring.

Since the adoption of this resolution, many universities have attempted to persuade NPC groups to participate in peer monitoring or party checking.  Recently, a question was posted on the AFA listserve regarding peer monitoring and party checking.  Interestingly enough, Mitch Crane, an attorney and member of Sigma Phi Epsilon Fraternity, posted the following response, which goes hand-in-hand with NPC’s resolution:

In most cases, monitors were lax under fear that their own chapters would be sanctioned in return if they enforced the rules.  On two cases, men were threatened physically.  There certainly are some institutions where this type of monitoring appears to be effective – but it takes mature and brave men and women to do it.

Another issue I have raised is the fact that in almost all cases the party monitors are not covered by liability insurance – this puts liability on the individuals and/or the uninsured councils.  In the few cases where the councils and the party monitors are on the institutional liability policy, there is a great exposure to suit if the monitors do not do their jobs properly or if they come and go and an incident occurs later in the evening.

Purely from the point of view of enforcing policy and also protecting oneself from suit, any monitoring of parties should be by the campus police or by another law enforcement agency and not by undergraduates of fraternity and sorority advisors.

We certainly support an organization’s responsibility to hold their own members accountable for appropriate behavior.  To that point, we are in complete agreement that monitoring of social activities outside of one’s own organization should be done by an insured third-party.  You should continue to decline any university request for participation in peer monitoring or party checking activities.

What has emerged since that time is a “modification” of the actions expected under a peer monitoring system.  This comes in the recognition of the flaws of the prior system and an acknowledgement that a modified system, now being labeled “peer observing” could be appropriate within the Greek community. In several recent situations, university professionals were not looking for this to be a group to group enforcement practice, but simply an expectation that each group is responsible for its own self-governance or its own monitoring of the activities.

In that the term “Peer Monitoring” has taken on several different meanings, it may be wise to create a new term which draws from the goal of this practice, which we believe to be that each group is accountable for the actions of its members.

As such, we are inclined to consider this practice differently and would be supportive of a “refreshed” look at the practice and the potential for embracing a new policy on how to achieve the accountability that is being sought of the member groups.

As conditions change, it is important to take another look at how exposures are evolving and the “reform” initiative discussion should effectively accomplish this for our clients.  We wanted to share the risk management and insurance perspective to assist your leadership in tackling this critical challenge.

We understand that this is a difficult issue to tackle, and we want to help you determine how best to manage this exposure. Should you have any further questions, please do not hesitate to contact us.

We are often asked about the worthiness of using liability waivers by our clients. In the past, under the advice of legal counsel, we have taken a somewhat ambivalent attitude toward encouraging our clients to have their members sign waivers or requiring that non-members participating in chapter events sign waivers as we were concerned that the waivers wouldn’t stand up in court.

However, over the past several years, there has been a shift in case law that has caused us to reconsider our position on waivers and releases. This, coupled with the dramatic increase in liability incidents and claims among our clients, has caused us to re-evaluate our position. Our research and the advice of legal counsel now indicates that participant waivers/releases may be advantageous for our clients in two ways prior even to the test of court:

We are now encouraging our clients to utilize participant waivers (both for their own members and for events sponsored by the Fraternity/Sorority with non-member participants) for the following types of events:

We have developed a participant waiver/release template for our clients’ use. Please be sure to read through the waiver in its entirety and make necessary edits so that the waiver applies to your specific event. You will see examples and further information in the footnotes of the waiver/release template.

Once the appropriate waiver has been drafted by included the requested information in the template form, waivers may be distributed in paper or electronic format. If distributed and collected as hard – copies, chapters should either keep the paper copies or scan and save as an electronic file in accordance with your organization’s document retention policy. It’s important that chapters not go to all of the effort of collecting signed waivers to simply dispose of them the day after the event as claims often come much later than that.

A potentially better option is to use a web-based liability waiver platform that will help your chapters create and distribute waivers to participants and then save signed waivers in a searchable database. There are a few websites that offer this. One such company that we recommend is SmartWaiver as we believe that the waiver creation and distribution process is relatively seamless and pricing is reasonable and upfront.

For additional information, please refer to the article published in Fraternal Law (link). Should you have any questions or concerns, please contact Estacia Brandenburg, JD, MJ Sorority Client Executive.

As with any non-profit organizations, finding and retaining volunteers can be a difficult task. In addition, an effective organization has a path way for these great volunteers to be able to contribute and rise up the ranks of leadership. All too often, the complex question arises of “whether a volunteer can continue to serve as a local alumna for a chapter or a house corporation once they also assume a national leadership role?” There are two distinct answers to this question.

The first answer is a rejection of this dual capacity service of an alumna. The primary issue is a concern that the national officer may expose the national organization to liability for local entity’s actions, subsequently forfeiting the defense of ignorance of the local entity’s operation.

The second answer – and the one that we think more appropriately applies to the women’s organizations – is that the threat of increased liability from this dual capacity is offset by the distinct advantage that we believe comes from a national officer continuing to provide leadership to the local entity be it a chapter advisory board or a local house corporation board. We see this leadership as a positive for both the national and local entities.

Ideally the national officer should be freed up to focus on this important national position that she has been appointed or elected to do for her sorority. A new volunteer can be added to your ranks to fill the local volunteer position. If this is not possible, then there should be no hesitancy to allow the dual-capacity position of your national officer.

We are seeing an increase in the number of riskier and more robust activities being proposed as chapter events and activities, such as the following:

Ropes courses                                                         Hay rides  
Mud/color/zombie runs                                          Rock climbing/Climbing walls
Skeet shooting                                                        Paintball
Trampoline events                                                   Slip-and-Slides
Haunted attractions                                                Mazes
Bounce Houses and Dunk Tanks                             Events over 500 people
Hamster balls                                                          Mechanical bulls
Eating activities/contests
Any type of inflatables

On their own, these activities are concerning because of the greater potential for injury due to the more physical and/or dangerous nature of these activities. With good risk management, some of the potential risks associated with these types of events can be mitigated; however, some of these events are inherently dangerous. If we continue to see more claims in these areas, the insurance company may be forced to take action by eliminating some of the coverage that our clients now enjoy. We would prefer that good risk management eliminate action from the insurance company.

In addition to the more physical nature of these activities from a risk management standpoint, we are seeing the contracts in these types of scenarios increasingly contain verbiage that is unfavorable for our clients. Examples of this are where the service/venue includes the requirement that the fraternity/sorority add the venue/service provider onto their policies as an additional insured, contractual verbiage that releases the venue from any and all liability, and the requirement that all chapter members and/or participants sign waivers or releases to eliminate the service/venue from liability. This trend toward more aggressive contractual language with these types of events is concerning for our clients primarily due to the fact that they have little or no control over the equipment and the facility that is being used by its members and to then release the service provider/venue from responsibility is not good business practice.

Thus as we see it you have an increase in the more risky activities, where the service provider/venue is completely “released” from any and all liability and we have the additional trends below to exacerbate the matter:

Please refer to your own organization’s policies regarding approved events.

Not all risky events are created equal; please refer to the table below for some specific examples:

As you can see from the examples above, there are ways to make seemingly risky activities more advantageous, primarily by holding the event:

If the event is held at another business, they will be primarily responsible for the liability to your members and their business insurance policy will be responding to any claims.

Refer to your inter/national Headquarters for your organization’s policies regarding approved events. Ultimately, it is up to the discretion of each inter/national Headquarters to determine whether or not to allow a specific type of event.

We recommend, when possible, that chapters find alternatives to the types of risky events listed and/or unfavorable contractual risk transfer.

If it is not feasible for you to find an alternate (and insured) venue for the event or to change the event altogether, we recommend that you utilize the services of MJ Insurance Sorority Department by contacting Ruth Akers, Senior Account Manager.

Should you have any questions or concerns, please contact Ruth Akers at ruth.akers@mjsorority.com.

Does this make sense for your House Corporation?

Pursuit of strong risk management will sometimes get in the way of solid business practices. A prime example of this is the reluctance of a house corporation board to have either collegiate chapter members and/or chapter advisors on the board. The fear being the threat this could pose of not “fire walling” liability away from the HC of the chapter operations.

In that the chapter operations and house corporation operations are equally and jointly insured under your organizations national insurance policy, this should be less of a concern for the liability.

We do believe that the increase in the communication between the two operations will be greatly enhanced which ultimately provides for a healthier relationship between the two entities.

One recommendation of helping to narrow this liability would be to have them as non-voting members of your local house corporation board and a minority in number.

The local house corporation is taxed at running the most optimum business for its resident members/other members and using available resources to do so makes sense.