What is a disability access claim (lawsuit)?
A disability access claim arises under the Americans with Disabilities Act (ADA) and its California counterpart, the Unruh Act, which prohibit discrimination in public accommodations based on disabilities. Among other types of business, restaurants and retail establishments are the main targets of many disability access claims. A litigant named Jarek Molski has filed over 400 disability access lawsuits in California and admitted to earning approximately $4,000.00 per filing. A federal judge called Mr. Molski a “hit and run plaintiff” and compared his numerous lawsuits to “a systematic extortion of California businesses.” http://articles.latimes.com/2008/nov/18/local/me-wheelchair18.
What should I do when presented with a disability access claim?
1. Determine Whether Disability Access Claims are Covered Under Your Liability Coverage.
If your business is presented with a disability access claim, which can either comes as a demand letter or a lawsuit, your best option is to first contact your insurance provider to determine whether such claims are included in your liability coverage. In some cases, your lease agreement with the landlord may provide that the landlord will indemnify your business against such discrimination lawsuits. Because there is a possibility that such claims are covered either under your business’ general liability insurance policy, the landlord’s insurance policy or your lease agreement, it is important that you first explore the scope of these policies to determine whether the insurance provider will have to defend against the claim on your behalf.
2. Become ADA-CASp Certified.
If disability access claims are not covered claims, you should meet with an attorney who can assess the merit of the claim to determine whether you are better off settling the claim or defending against it. In my experience, if there is an allegation that your facility violates the ADA or the Unruh Act, it is likely that the individual asserting the allegation has already visited your business and discovered that some aspects of the facility failed to comply with federal and state disability access requirements. As such, the safest approach for a business owner is not only to meet with an attorney but also to consult with a state certified access specialist to determine whether the facility is in compliance with the access requirements and to become ADA-CASp certified. “CASp” stands for Certified Access Specialist program. Under California law, CASp certified businesses are entitled to numerous protections against disability access lawsuit.
3. Do Not Settle Any Disability Access Claim Without A Carefully Drafted Settlement Agreement.
If your general liability insurance policy does not cover disability access claims, it can be very costly to defend against such claims in court. Therefore, most small business owners choose to settle these claims hoping that the claimants will just take the money and go away. California law provides for a $4,000.00 per day penalty against business owners for the failure to have their facility comply with the federal accessibility standards. While a disabled individual may agree to settle an access claim with your business for a few thousand dollars, he or she may bring the exact same claim against your business based on a similar violation that allegedly occurred on a different day. To avoid this scheme, you should immediately rectify any disability access violations on the premises and make sure that the claimant signed a comprehensive settlement agreement before paying out any settlement amount.
Looking for an attorney to help you handle a disability access claim? We can help. Contact our office now at 1-866-644-8011.
****The opinion above is not intended to be legal advice and does not create any attorney-client relationship between its author and the readers. Please consult an attorney for information or advice specific to your legal issue. ****
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