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PODCAST OPENER
Welcome to the Inside Insight podcast presented by CR Solutions. At Consolidated Risk Solutions, we are taking our expert knowledge of the insurance world and using it to innovate the industry using technology, groundbreaking thinking and a personal touch. Join us as we talk to masterminds both inside and outside of CR Solutions about how the world of insurance is changing, and how we can be sure to grow along with it. If you have to manage insurance in your work, then you can benefit from the interviews, conversations and insights we’ll be exploring to elevate your business’s success.
INTRO (00:42 – 04:19)
Beau Lunceford: We’re back again. I enjoy it. That’s become just a classic part of how this podcast starts. Now, there’s just a just a little song and dance number. But we are back here with another episode of the Inside Insight podcast. And we have an awesome guest today. This was such a cool conversation to be a part of. And I really felt like I was a fly on the wall for it, but appropriately so. Like, when you and Joshua got into this conversation, it was just immediately just sparks flying. It was great. But I’m getting ahead of myself a little bit. We are today talking to Joshua Epstein from Morgan, Akins & Jackson, which is a law firm out of New York. And Joshua talks a lot about labor law in this conversation that the two of you have, and I’m going to say the two of you because really it is the two of y’all talking.
Trevor Casey: And I think part of that is because a lot of the accounts that I worked on in when I was doing CCIP and OCIP administration were in New York. So just that space really is exciting for me, because New York is just this crazy animal as far as insurance goes. And it’s really interesting to see, one of the things that you don’t think about a lot is how much politics play into these insurance decisions and these legal decisions. And it’s so far removed from one specific case, and maybe the law was in 1960, or whatever. And it’s just interesting to see how that space is playing out, and all the little holes and gaps that people are finding themselves in and possibly losing millions and billions of dollars.
Beau Lunceford: I think people are going to be really excited to hear this conversation and hear about those gaps in those holes. And the way that the legal system is built to try and protect and in some ways failing to give people what they need to give people more of an insight as to what they need to be watching for and the kind of ways they can protect themselves.
Trevor Casey: One of the things about Joshua that I really liked was he was just so passionate. Like, most people, they like what they do, they go to work, and they’re excited about it. But you can really hear in his voice, the passion that he has for law in insurance law, and just that space in general.
Beau Lunceford: And that’s one of the things that we’ve talked about with the guests that we’re going to be having this season is that that’s one of the common threads is passion for what they do. So let’s tell the people a little bit about who Joshua is. Joshua L. Epstein is a partner in Morgan, Akins & Jackson’s New York office. Prior to joining the team in 2023, he worked for a pre-eminent insurance defense firm handling general liability and transportation related claims. Joshua also previously worked for the largest insurance defense firm in the United States, as well as in house counsel for a fortune 100 company. As a native of New York, Mr. Epstein earned his Bachelors of Science in sports management from the University of Massachusetts at Amherst with a Magna cum laude Honors and a Juris Doctorate from Touro University Law Center with Summa cum laude Honors. This guy is the real deal, and people are going to hear that like it’s clear on paper, it’s clear in his bio, but as soon as people hear him start talking, they’re going to do the exact same thing that you did and say, “Man, this guy’s passionate. He knows what he’s talking about.”
Trevor Casey: Absolutely. Well, without further ado, let’s dive on in.
Beau Lunceford: Let’s get it.
Interview (04:21 – 28:17)
Trevor Casey: All right guys, welcome back to another episode of the Inside Insight podcast. We are back with one of our favorite styles, lawyers, lawyers and lawyers. Joshua Epstein of Morgan, Akins & Jackson PLLC is here with us today. Joshua is a partner and an attorney. How are you doing today, Joshua?
Joshua Epstein: Thank you very much how you guys doing tonight?
Beau Lunceford: We are great and we are excited to have you here. This is going to be a really fun conversation. What people haven’t heard is that we’ve been talking for a few minutes already and I can already just tell this conversation is going to be so full of just some really great content and just some really fun pieces. I’m really excited to dive in.
Trevor Casey: Definitely. So, Joshua, would tell us a little bit about yourself and what you do at Morgan, Akins & Jackson.
Joshua Epstein: Thanks, guys. So I am currently a partner in the New York office at Morgan, Akins & Jackson. I handle insurance defense primarily, general liability, transportation related claims are for Morgan, Akins & Jackson is located in 12 states in 9 offices, including Nashville, Philadelphia, New York City, Atlanta, Lexington, to name a few. We are a full service insurance defense firm. We handle many other types of cases motor vehicle, commercial vehicle, and trucking, labor law, construction defects, things like that. And I’m very excited to be here today.
Trevor Casey: We are so excited to have you and all of those things that you just said are huge hot button words for people in the insurance industry. We had briefly talked back and forth about something that you had spoken about how you’re seeing problems with exclusions right now where people are a roofer, for example, has a roofing exclusion or height exclusion, I should say on their policy. When they’re doing roofing, how does this stuff happen? Why are we seeing so much of this?
Joshua Epstein: I don’t know, if it’s insured not paying attention, if there’s disconnect between the insured and the broker, or there’s just disconnect across the board with everybody. But I am just seeing tons of cases lately, where subcontractors are being denied their coverage for either a height exclusion, as you said, or an exclusion for construction work, or an exclusion for work where they operate in one state, but their policy doesn’t cover work in another state, and things like that I’m seeing constantly and it’s hard to say exactly what’s the reason for it. But it’s certainly a major concern for insurance and for the industry.
Trevor Casey: It’s honestly mind boggling that people are getting themselves put in these situations. And like you said, it could be a number of facets that could be potentially included in this. But what are some of the big things that you guys are seeing? And what is the conclusion of these? So let’s say, hide exclusion, that’s creating labor law cases. What are we seeing from that? Like, what is the repercussions of something of that nature?
Joshua Epstein: I think in that particular case, where there’s a company that performs, you’d say, facade repair or construction work on the side of the building in New York City, they may have a general liability policy, but it may have a height exclusion. And so if there’s a lawsuit, and somebody falls off the side of the building, or they’re doing work above three floors, whatever the height restriction is, and there’s a claim, and they put it to their insurance company for coverage, it’s going to get denied. And what’s going to happen is, they’re going to be forced with the decision to either pay for their own defense and pay for any settlement, and it’s going to come out of their pocket or risk of default or a devastating effect on their business. But I think ultimately, if a company like that had someone looking over their policies, making sure that they get the correct insurance and have somebody there’s like a failsafe, it would certainly help them tremendously.
Trevor Casey: So when we’re looking at, let’s say that could kind of refer back to CR Solutions and the kind of work that they’re doing as a subcontractor, what are things that you may recommend to them to look for as a litigation attorney that deals with insurance? What kind of things are saying, this is what you should speak with your broker about this is what you should look for without having something like a CR Solutions looking at it, because I’m sure there’s 10s of 1000s, 100s of 1000s of contractors out there that they don’t have their policies reviewed by an insurance administrator.
Joshua Epstein: I think it’s really important for a subcontractor or a general contractor to read the contract that the general contractor, for example, has signed with the owner, see what the requirements are. Is their assurance requirement? Do they need to have $5 million in insurance needs about $2 million in insurance? Is there going to be a height restriction? Is there a ladder restriction? Is there a restriction for their own employees not being covered if they get hurt on the job if there’s a claim put in? So I think it’s really important for them to read the contracts themselves and ask their brokers to make sure that everything they need to qualify for their coverage in the contract between the general contractor and themselves is covered in their policy. Because if not, I’m sure you guys see this, these claims are huge, especially in New York. The exposure is tremendous. And so if they get disclaimed, or their coverage is denied, they’re going to have a major problem. So those are some things that they should be very careful about and those are some things they should do.
Trevor Casey: So in speaking of New York, everybody hears labor law, New York and labor law. What is labor law? Like for just a general layman’s term for somebody who’s listening? They don’t work in New York. That’s a big time thing you hear there. I know, labor laws everywhere to a degree. But what’s the just general layman’s term of what labor law is and what applies as far as like a case that falls under that?
Joshua Epstein: In terms of the labor law, obviously, this is a huge topic in New York. And it’s very encompassing. But for my purposes, there are three sections of the labor law, New York that we see most frequently. That’s Labor Law Section 240, section, Labor Law Section 241, and Labor Law Section 200. And the labor law in New York was created many years ago to protect workers to make sure that New York City could be built. And that workers will be protected, there will be no issue. So, for example, labor law section 240:1 is a section of the labor law that imposes absolute liability on owners and general contractors, in certain situations. For example, if a plaintiff or an individual falls from a height, or struck by an object that was inadequately hoisted or secured, and fell on him. In these situations, which is a large majority of labor law cases, the owner and the general contractors are absolutely liable. It does not matter if they had nothing to do with it. If this situation happens, they are going to be responsible. So imagine if they have a policy that doesn’t cover up. If they have a height restriction, or they get disclaimed, they’re going to be liable no matter what. There’s also labor law out the other really dramatic, and I’ll say Labor Law Section is 241 forensics. And in this situation, a worker has to show that they were provided with an adequate safety protection or the platform or ladder was defective, if they fall from a height. It’s not absolute, it’s still strict, and the owner is still strictly liable. But, again, it’s a very significant and serious violation of the labor law and the owners and general contractors are hit very hard with these two provisions.
Trevor Casey: Do we think that this is mostly due to just the fact that New York is a big skyscraper city? Or is it like you going back to what you said, where it was implemented to protect workers to build New York City? I could understand that 100 years ago, but for all intents and purposes, New York City is built. And I feel like most general contractors and owners are not wanting to hurt their employees by any means. So why is this still important? Why do you think it falls back on the owner and the general contractor? I mean, there’s a lot of safety stuff that’s put into place, especially in New York, is it just due to the fact that these are just ginormous skyscrapers?
Joshua Epstein: So let me just make this clear. The labor law is for all of New York, it’s not just New York City. I kind of just mentioned New York City, because at the time, that was the biggest city, obviously. It is all over New York. But I believe one of the main reasons it was created and why the burden is placed on the landowner specifically is, I believe the legislation felt that the landowner was in the best position to have insurance coverage for the loss. They had the most to lose, they were the landowner. And so they placed the most burden on the landowner and the general contractor who in theory is responsible for the entire project. So I understand that New York City is a skyscraper city, and then we have some other big cities. But ultimately, I think it’s just continued to be placed on the landowner because the legislature continues to feel that they are going to be the person who are the entity that will have the insurance and should bear the most responsibility.
Trevor Casey: So, as an administrator, we don’t handle a lot of claims, but we see them time to time on different things. And I feel like there is a trend, I don’t want to say it’s specific, but that there is a trend of fraud in the construction industry just due to some of these labor law themes. What is your opinion on that? And is there protection in place for these owners in general contractors where Beau and I couldn’t say, “Today, you’re going to fall off the ladder, you’re going to get a fat paycheck.” And then next month, I’ll do the same thing and I feel like that could happen, especially in the world that we live in today. What kind of protection is in place for the owner? I understand they are financially stable, hopefully. But that’s not fair to them just to be in a good position that they got to pay somebody. You feel like they want to commit fraud.
Joshua Epstein: So I’m actually handling a case at the moment that’s similar to this. We believe there’s some sort of fraud scheme going on where I believe somebody works for the general contractor and he’s telling people, “There’s a project going on. You can say you fell at this site and you’ll get paid a lot.” And maybe there’s a kickback situation. What happened with a plaintiff, it happened on one date, two weeks before that it was a very similar situation, where the employer doesn’t even know the person. They contested workers compensation, they’re saying they don’t even know who this person is, and person was never there. So this is definitely happening. It’s a big problem. I would say that I’m not specifically sure what landowners or general contractors are doing. But my suggestion would be cameras. I know there’s some privacy laws. I know there’s some union laws. But if there were cameras on the premises 24/7, even a little tiny nest camera or something like that, just streaming going to a cloud, where they could cover the inside or outside of the buildings, he could end a lot of this, because we could show that the person was never there. I’m short of that. It’s very hard in New York to establish accidents didn’t happen without witnesses, or some sort of substantial proof. So it’s going to continue to go. But I would suggest cameras, and a lot of oversight making people sign in and sign out. The last thing, and this is just kind of the way the whole country works in terms of our labor force, but there’s a lot of day laborers. People are using fake names. Social credit numbers are bad. They don’t have social credit numbers, they don’t have birth dates. So it’s also hard sometimes to track these people to look them up to figure out their background and history. So having some more checks and balances in place would help landowners in general contractors reduce their exposure in labor law cases.
Trevor Casey: That’s something super interesting, because you see a lot of day laborers. We go to the city for different meetings and stuff, and you see him come to and from buildings. But that’s not something that I would have thought about, is somebody going there with a fake background, that they feel the need to have that? And that’s a very interesting point. Because it’s not something that I think everybody thinks about every day is that, what would happen if a person who is lying about their identity is on a job site and then has a claim whether it’s real or fake? And that raises a good question, what happened if Beau was on the job site as John Smith, John Smith isn’t a real person, and he gets injured, and he has a claim, but how would that be handled? He hopefully just say, “Oh, I didn’t get her and just move on.” Or is he suing them as a fake person? Like, do you see that?
Joshua Epstein: I don’t see as much the fake person, I see more day laborers showing up getting paid cash under the books, off the books, with questionable work experience where the GC may have a foreman, and the foreman may have a guy they work with, and they bring people in every day. I think that’s more the trend we’re seeing. And unfortunately, those people aren’t trained properly, they don’t have the proper licenses, they don’t have the proper OSHA certificates. And, unfortunately, they’re protected also. So it’s a combination of companies looking to maybe help their profit margin and bring in some people to do less labor intensive work that they don’t want to pay somebody a lot of money to do, but they are still protected. We see that a lot. A lot of times, we see a lot of day laborers getting hurt and working at the job one or two days with every question in the work experience. And I think to prevent that the owners may want to and the GC’s may want to hire some more skilled laborers. And that’s not to say it can’t happen to them, but at least they may have a level of experience that may prevent an injury and then turn prevent future claims and exposure.
Trevor Casey: So what if I’m hearing this correctly, you’re saying that general contractors are hiring day laborers who may or may not be qualified to be there, subjecting themselves to a potential huge claim. And then those people are protected by New York labor law. So they’re pretty much just shooting themselves in the foot.
Joshua Epstein: And in those situations, some of those companies are getting disclaimed. They may not have the right coverage. On top of doing all of that, for example, like I mentioned, I have a case. This big company is a New Jersey based company. They do a lot of work in New York. It’s a big general contractor. They hired day laborers. Their policy didn’t cover them to do construction work in New York, it only covered them to do work in New Jersey. So their coverage got denied on this almost very similar fact pattern, their coverage got denied. And they have a very big problem now. So it’s just a combination of a lot of issues. But it all these things are happening constantly. It’s really a big issue.
Trevor Casey: I understand that the financial upside of building these buildings is there. But there are so many things to get to the completed project to sell it or rent it or lease it or whatever, that you are just like hoping and praying for the best. And then you get to the end and you’re going to be successful in a financial outcome. But there’s every turn, you could be losing every dollar you have. And that is just terrifying to me. I almost seems like legislation needs and this is all personal opinion. But legislation needs to catch up to times maybe I don’t know.
Joshua Epstein: I mean, that’s funny, you bring up legislation a couple years ago. New York is always trying to limit the exposure for liability. I think there’s a lot of campaigning that goes on, there’s a lot of money being spent to try to advocate the legislature in Albany to limit and reduce the exposure and the severity of the labor law. There were some bills that have been put up, they never get past the committee’s and ever get past the beginning stages. I don’t know if it’s ever going to happen. It doesn’t matter what side of the aisle you’re on. Ultimately, something always hangs it up. It’s been around for a long time. I think, from my perspective, a legislative change help, but I just don’t ever see getting there. Maybe I’m wrong. It may take a lot of years, but I just don’t see it getting there, especially in New York.
Trevor Casey: It’s so interesting. New York is such a beast. And we say in our office, you’ve got people that specialize in New York, and then you got all other states. It’s such a beast and it’s really unique some of the things that come out of there. And when I say unique, unfortunately, somebody’s probably paying an arm and a leg due to the unique case that we’ve get to see, but it is wild to see all these new things that are constantly coming out of New York.
Joshua Epstein: I think just kind of going back to some of the cases and some of the issues I’m seeing, I think a lot of this can be avoided if some of the companies just, I know it’s easy to say, but spent a little bit more money. Like, got the right coverage. It could be $10,000, more $50,000 more, but is it worth spending that money or risking a $5 million labor law claim where you have no insurance? I understand it cost money, and there’s low margins and some of these things. But if they just had the right policies and the right coverage, we would be avoiding a lot of these cases. And eventually in total, it would save everybody money, it would save the insurance companies money, it would save the contractors money. It would save on legal expenses and payouts. So I think it’s really important for these companies to just make sure they have the right coverage. And I think that’s something that CR Solutions would be great for.
Trevor Casey: So if a contractor or general contractor and owner was curious about policies, because we do great tracking insurance but we’re not lawyers. So we don’t do the actual legal review of policies, we usually outsource that. But if somebody was like, “My Company, I feel like there’s a possibility of us to be at risk.” Is that something that Morgan, Akins & Jackson does? Do they review policies on behalf of policy holders? Or do you guys strictly deal with litigation?
Joshua Epstein: Our firm we do have attorneys that review coverage, I think it’s mostly on behalf of the insurance carriers looking at their policies. If they want to make a change, or if the policy language is in tune with the law of state, they’re looking to go into or looking to issue a policy. We definitely do coverage work. It’s not all the litigation. A lot of it is issuing coverage opinions, primarily for insurance companies, as we do defense work. We typically don’t do a lot of or any work on behalf of insurance, if there’s an issue with their policy, or they need to do some sort of litigation. But we definitely view policies for carriers all the time to make sure they’re aligned with the local laws at the state that they have a question about.
Trevor Casey: So if a carrier was listening to this right now, and they wanted to speak with you to learn a little bit more about what you do, or discuss a possible case that they have, or a case study, where could they find you and your guy’s company at?
Joshua Epstein: So we can we can be found at morganakins.com. I’m on online. I have a link to my bio. Anybody can reach me my email address, which is jepstein@morganakins.com accessible all the time, they’d be happy to speak with anybody out there about a case they may have, a question they may have. And I’d be happy to talk to anybody out there that has any issues that they think we can help with.
Trevor Casey: Awesome. Well, before we wrap it up, Joshua, you have any other awesome case studies or cool points you want to share with our listeners?
Joshua Epstein: I think I was mentioning this before, I’m going to leave you with one last case which was very interesting. So I had a case a couple of years ago. It was a subcontractor. I think you mentioned it, it was a carpentry company. And they were supposed to get a certain type of insurance that covered their own employees getting hurt on the job. And as it turns out, one day one of their carpenters was climbing up a ladder. They fall off, get hurt, they sued the landowner, and they sued all the subcontractors, except for their employees. He is in New York, you can’t sue your employer if the workers comp is far. And so what ends up happening is we deposed this carpenter and we asked him, “Are you aware that you needed this type of insurance?” He goes, “Yes”. “Did you have this type of insurance?” No, I did not. “Why didn’t you get this insurance?” Because it was going to cost me too much money. And I just think I couldn’t afford it. So then we asked him, “Did you provide the certificate of insurance to the general contractor?” He goes, “Yes”. “Did they know you didn’t have this type of insurance?” Yes, but they just didn’t care. They just wanted me to have the insurance. So I’d get on the job and fix it. The carpenter’s carrier disclaimed. They have no insurance. They got brought in as a third party. And now this guy’s business is being personally exposed, it’s actually going to trial and his company is going to be exposed to all because he literally said under oath, “He did not have the insurance he was aware of because he couldn’t afford it”. And still, the general contractor accepted his insurance and relied on it. And now they don’t have insurance either. The general contractor relied on the subcontractor insert, so nobody has insurance coverage and it’s going to trial. It’s just crazy.
Trevor Casey: We always say in our office that the certificate of insurance is garbage. You got to pull the policy.
Joshua Epstein: Exactly. I tell people that constantly like well, it says I’m an additional insured. I go, yeah, but it matters what the policy language says, it is useless. And I’m trying to get my clients to understand that slowly but surely, I’m hoping that they start to ask for the actual policies, instead of asking for the certificates of insurance on every project they work on.
Trevor Casey: And hearing these cases from the horse’s mouth, I think is going to be a huge indicator to these people, I gotta pony up, start collecting policies, pay a little extra money, get the right coverage, and make sure that I’m able to live the rest of my life financially secure, and not have everything taken from me in a lawsuit.
Joshua Epstein: Absolutely. And I hope this has helped anybody listening out there about some pitfalls, and kind of what to look out for if they’re a contractor or carrier, anyone in the industry. I hope this has helped them open up their eyes and give them some insight, especially as to what’s happening in New York.
Trevor Casey: Absolutely. Joshua, thank you so much for the time, and just all of those nuggets of information. I feel like this has been an eye opening podcast, if just pay attention to your policies, pay attention to the contract, make sure that everything is in order, pay a little bit of extra money, and you will be okay. And it’s just so great to hear it from a lawyer and not just hear from the administrator of your insurance saying you need to have better coverage. You have a lot more power when you’re speaking on this. And it’s just we really appreciate the time and the energy.
Joshua Epstein: Oh, thanks for having me guys. I really appreciate it.
Trevor Casey: Absolutely.
Beau Lunceford: Absolutely.
Trevor Casey: Thank you again, Joshua.
OUTRO (28:21 – 30:30)
Trevor Casey: I’m very glad I’m not a lawyer.
Beau Lunceford: I am too. They are too smart for me. Like, one of the things that we say at my house is that there’s a reason there’s no doctor Lunsford. That’s not where we belong. But it’s so great to get to talk to people who do have just that elevated mentality and that elevated understanding of their industry.
Trevor Casey: And like we had talked about previously in the intro, just his passion for insurance and defending people in court with cases that have to do with insurance and suits and stuff that have to do. It’s just very refreshing to see somebody who is so passionate, but he’s very much able to dumb it down for you and it to understand it’s not all in case law at all. He’s like, this happened, this happened and this happened. And you’re like, “Oh, that makes sense like click fireworks”.
Beau Lunceford: He definitely knew his audience when he was talking to us. It was funny, because kind of like I mentioned earlier, he kept on a nice little elevated, conversational plane for you. And then I felt like he would almost like turn to the side and go, “This is what this means. This is what we’re talking about here. Yay. Thank you.”
Trevor Casey: I think everybody will appreciate that. Joshua, thank you so much. We really hope to have you back again soon. So if anybody has any questions that have to do with case law, labor law, anything, especially in New York, please reach out to Joshua, I know that his firm is more than happy to, to speak with you and learn a little bit more and he’s just a wealth of knowledge. So we’re just so grateful for the time that you spent with us.
Beau Lunceford: Absolutely. And I’ll do a final plug as well for making sure everyone knows about our new social channels that we’re on. We’ve separated ourselves a little bit from the CRS accounts to make sure that people are getting the content that they’re looking for. So make sure that you’re following the Inside Insight podcast, on LinkedIn and on Instagram and on Facebook, getting all those pieces and all that information. You can also sign up for a newsletter that we’re working on. And you can do that at c-r-solutions.com/podcast. So until next time, stay covered.
PODCAST CLOSER
Thanks for tuning in to Inside Insight presented by CR Solutions. If you like anything that you heard today, subscribe, follow and rate the show so that other industry pioneers like yourself can find it. Maybe even share it with someone you think might benefit from this episode. Do you have a question that you want answered or a concept that you need explain, you can email us at info@c-r-solutions.com with the subject line “Podcast Question”, and maybe your question, we’ll make it onto one of our episodes. You can also submit a question via our website at c-r-solutions.com/podcast. There are no dumb questions, only opportunities to learn something new. Now that’s a wrap on this episode. Join us next time on Inside Insight presented by CR Solutions. Stay covered.
