May 2010

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Whether you live in a townhouse-style development, high rise, or planned community the Board of Directors of your community has likely been looking at ways in which to reduce or deter crime.  Security guards have long been relied upon to “observe and report” – meaning that they observe and report such behavior to the local police department avoiding direct confrontation with the criminal.   Some boards, however, are adamant that their communities need their security guards armed, in order to be effective.

But do armed guards in fact act as a better deterrent?  

Having a security guard carry a firearm may have some benefits, but the liability exposure an armed guard presents is too great for preferred-market insurance carriers.  In fact, insurance carriers who specialize in writing coverage for community associations are not willing to provide coverage for communities where guards are carrying firearms.   And this is true – regardless of whether the guards are employees of the community, or work for a third-party guard service.  

It’s an age old debate:  Does a firearm represent a deterrent or a liability?  For community associations it truly depends on who you ask. Most experts agree that any weapon (firearm, taser, mace) is only a tool.   In the hands of a professional a firearm can be an asset   For a community association, however, a weapon capable of causing injury or death could in the hands of an immature, under-trained individual present, an enormous liability not only for the guard company, but for the community association and the management company.   And the gun doesn’t have to be discharged to result in a claim.  Incidences of “pistol-whipping” on community association premises have resulted in expensive emotional injury lawsuits.

Armed guards can receive extensive training on a firing range but that may not equip them to deal with the everyday confrontations that they may be called upon to deal with in a community association.  In fact, some would argue that security officers are sometimes far less effective when armed – relying on the fact that they have a gun, instead of using their human relation skills to persuasively deescalate the situation.  Controlling boisterous celebrations, handling disputes over common area amenities, confronting poolside conflicts – are just three examples where good people skills would be far more effective than responding carrying a firearm.  They may be uniformed and wear a badge, but security guards are not police officers.  Too many security personnel are inadequately trained to be armed.   Police officers, by comparison, undergo extreme physical training and are emotionally vetted.

How much does your Board actually know about the security officers that are on your property day after day?    Assuming you use a third-party guard service, your guard is subject to State-mandatory background checks and likely subject to periodic random drug testing?  But does your guard service have any pre-hiring psychological tests?   If the guard comes from a military background, did they end their military service under disciplinary or medical reasons?  

The ability for a Board of Directors to show that they have exercised due diligence when employing a guard company may be critically important if there is a claim.   Some security companies may allow you to see a guard’s curriculum vitae prior to being assigned to your property – and that isn’t unreasonable to ask.  In fact, asking such tough questions may fall within a Board’s duty to exercise due diligence.

You know your security guard company maintains general liability insurance and, hopefully, the written agreement with the guard service requires them to name your condominium association (and management company, if you have one) as an “additional insured.” Is that enough?  Maybe not.   

Here are some additional things to consider:

1).  Annual Aggregate Limitation: Commercial General Liability insurance policies written in many states are subject to an “annual aggregate” limitation.  An annual aggregate limit is the pre-determined dollar amount up to which an insurance policy will cover an insured each year, regardless of the number of claims submitted or defense costs associated with these claims. 

In other words, even though you may have evidence of a policy reflecting $1,000,000 per occurrence – there may be a $2,000,000 annual aggregate limitation contained in the policy.  

If the security guard company is involved in litigation elsewhere, that would begin to erode the annual aggregate limit.  You could be holding evidence of a policy whose limits have already been exhausted.  

2). You’re not the only one!  Further to the Annual Aggregate concerns highlighted in Item 1), your Association doesn’t really have any way of knowing how many other clients have been added as an “additional insured” on your security guard’s insurance policy. 

In other words, you don’t know how many other clients are relying on the same limit you are to defend and indemnify them in the event of a liability incident arising from the security firm’s operations on their property.

3). Disgruntled employees/former employees: Just having evidence of the guard company’s general liability policy might not be sufficient.   You may wish to inquire whether or not the security guard company has purchased Employment Practices Liability Insurance (EPLI) to cover claims which may arise from employment-related issues such as harassment, discrimination, wrongful termination and defamation.  

Even though the security guards are not the Association’s employees, you may still have some vicarious liability exposure (the disgruntled employee or former employee may try to sue the Association and your community manager, in addition to the security firm).

4).  Workers Compensation.  Does the guard company maintain (and provide evidence of) their own workers’ compensation coverage?  

If a guard is injured while on your premises, you want to make certain that the security firm has workers’ compensation coverage in force, so that the Association does not become legally liable for medical benefits.

 

Check with your insurance agent/broker to determine what your particular insurance company’s tolerance is when it comes to physical deterrents.   Currently, most insurance companies really would rather that all physical “show of force” deterrents such as Tasers®, stun guns, aerosol such as Mace®, pepper spray be avoided.  Some insurance carriers ask this as an underwriting question while other carriers craftily just attach assault and battery exclusions to the general liability policy in an attempt to avoid any resulting claims.  

Ultimately, the decision to maintain armed or unarmed guards is up to the board of directors.  But it may behoove the Association to heed the position taken by so many insurance carriers, and have their guards leave the “arms” at home.

 

 

This letter contains only a general description of coverage and is not a statement of contract. For a more detailed description of the policy conditions and exclusions, please consult the policy itself.
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