Insurance & Asset Protection

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Enforce the Duty To Defend Clause

Selecting the types and levels of insurance is vitally important to a small business owner seeking to avoid day-to-day liability risks. So an owner should follow some general insurance guidelines if he or she wants to take full advantage of the protections purchased.

Retain Insurance Policies Indefinitely

Selecting the types and levels of insurance is vitally important to a small business owner seeking to avoid day-to-day liability risks. So an owner should follow some general insurance guidelines if he or she wants to take full advantage of the protections purchased.

Engage in Asset Protection Planning

The civil litigation system itself represents a significant risk factor and exposure to liability. Therefore, it is important that small business owners employ the various strategies that allow them to control the risk factors in litigation.

Understanding Insurance Coverage

Insurance is the last line of defense for a small business owner executing a comprehensive asset protection plan. In order to make wise decisions regarding its use, an owner needs to have an understanding of how insurance will--or will not--offer this valuable protection.

Compare Premiums and Policies Beforehand

Selecting the types and levels of insurance is vitally important to a small business owner seeking to avoid day-to-day liability risks. So an owner should follow some general insurance guidelines if he or she wants to take full advantage of the protections purchased.

Insurance: The Protection of Last Resort

Ideally, the small business owner will structure the business to limit liability and then execute strategies to avoid day-to-day liability risks. As a result, it is hoped that claims will not be made or, if claims occur, the claimants will be unable to satisfy their claims from the business owner's personal or business assets. The asset protection strategies advocated throughout this small business guide are based on these principles.

Choose Liability Insurance Effectively

The civil litigation system itself represents a significant risk factor and exposure to liability. Therefore, it is important that small business owners employ the various strategies that allow them to control the risk factors in litigation.

Apply Leverage

The civil litigation system itself represents a significant risk factor and exposure to liability. Therefore, it is important that small business owners employ the various strategies that allow them to control the risk factors in litigation.

FTC Act

The Federal Trade Commission (FTC) Act prohibits unfair, deceptive and fraudulent business practices and represents a common route that small business owners can use to involve the federal government in a lawsuit against another party, especially because the term "unfair and deceptive" business practices is so broadly interpreted by the courts. Each state has its own version of the FTC Act, which can similarly be used to involve the state government in the action.

Enlist State or Federal Government Assistance

The civil litigation system itself represents a significant risk factor and exposure to liability. Therefore, it is important that small business owners employ the various strategies that allow them to control the risk factors in litigation.

Document Retention and Destruction

Having a plan for pre-trial discovery is one way to control the risk factors in litigation.

Consider Exculpatory Clauses

The civil litigation system itself represents a significant risk factor and exposure to liability. Therefore, it is important that small business owners employ the various strategies that allow them to control the risk factors in litigation.

Use Choice of Law Clauses

The civil litigation system itself represents a significant risk factor and exposure to liability. Therefore, it is important that small business owners employ the various strategies that allow them to control the risk factors in litigation.

Enact Disclaimers

The civil litigation system itself represents a significant risk factor and exposure to liability. Therefore, it is important that small business owners employ the various strategies that allow them to control the risk factors in litigation.

Preparing for Depositions

Having a plan for pre-trial discovery is one way to control the risk factors in litigation. Since the tools of pre-trial discovery could be particularly damaging for a small business owner, he or she should be prepared.

Plan for Pre-Trial Discovery

The civil litigation system itself represents a significant risk factor and exposure to liability. Therefore, it is important that small business owners employ the various strategies that allow them to control the risk factors in litigation.

Contract Reimbursement Clauses

Generally, the U.S. courts lack a loser pays system, which is a serious risk factor inherent in litigation. One way to control these risk factors is to find exceptions that make the loser pay in a lawsuit.

Seek Punitive Damages

The civil litigation system itself represents a significant risk factor and exposure to liability. Therefore, it is important that small business owners employ the various strategies that allow them to control the risk factors in litigation.

File Counterclaims

The civil litigation system itself represents a significant risk factor and exposure to liability. Therefore, it is important that small business owners employ the various strategies that allow them to control the risk factors in litigation.

Case Study: Punitive Damage Awards

Until 1996, punitive damages represented more of a risk factor inherent in litigation, rather than an opportunity to control risk factors, for small business owners. Specifically, during the 20-year period leading up to 1996, business owners suffered extremely large punitive damages awards. These awards, in many cases involving larger businesses, amounted to tens of millions of dollars, and some awards exceeded $100 million dollars. In 1996, however, the U.S. Supreme Court established guidelines for punitive damages awards that have significantly reduced the size of awards since that time.

Statutory Reimbursement Exceptions

Generally, the U.S. courts lack a loser pays system, which is a serious risk factor inherent in litigation. One way to control these risk factors is to find exceptions that make the loser pay in a lawsuit.

Make the Loser Pay

The civil litigation system itself represents a significant risk factor and exposure to liability. Therefore, it is important that small business owners employ the various strategies that allow them to control the risk factors in litigation.

Mediation and Arbitration Clauses

One way small business owners can control the risk factors in litigation is by entering into mediation and arbitration agreements.

Controlling the Risk Factors in Litigation

The civil litigation system itself represents a significant risk factor to the small business owner, because it makes it more likely that a lawsuit will be filed and that significant damages will be awarded to the plaintiff. However, by understanding these risk factors and then by controlling them, the small business owner can significantly reduce overall exposure to liability.

Elect Mediation and Arbitration

The civil litigation system itself represents a significant risk factor and exposure to liability. Therefore, it is important that small business owners employ the various strategies that allow them to control the risk factors in litigation.