To our brokers and marine facilities clients:
We want to bring to your attention an unfortunate trend we’re seeing with a recent class of lawsuits emanating from New York. The nature of the suits involve a claim of discriminatory practices by businesses for failing to provide ADA compliant websites for the visually impaired. We have seen several suits brought against our insureds (mostly boat dealers) who participated in the NY Jacob Javits Center boat show.
The suits allege the Plaintiff is “visually-impaired” and attended the NY boat show and in follow-up to the show attempted to access the defendant’s website in order to obtain additional information about the defendant’s products and services, but were unable to do so, due to inaccessibility of the defendant’s website.
Visually-impaired people can utilize special software that allows them to “view” a website, but a website needs to be optimized in order for that software to work. It’s that alleged failure to optimize the website that is the basis of these suits as the defendant is accused of “denial full and equal access to its website and therefore denial of its products and services offered thereby and in conjunction with its physical locations, is a violation of Plaintiffs rights under the American’s with Disabilities Act (ADA).”
The suit is written in a way that appears to be a template whereas any vendor participating in the boat show can be dropped in. In doing research on the Plaintiff attorney, we see he has filed similar suits against 40+ companies in a month, which leads us to believe, if you were a participating vendor in the NY Boat Show, you have or likely may receive a summons. Further – these suits have not been limited to businesses located in NY.
Am I covered? We are reviewing the coverage options to see where, if any coverage may protect our clients from these suits. From the onset, it does not appear to be an action that would trigger coverage under the typical General Liability policy as it lacks any bodily injury or property damage allegations. Defense coverage may exist under an Employment Practices Liability Insurance policy (EPLI) as certain EPLI policies generally cover claims related to the requirements of the ADA, if the coverage extends to third parties, but even if coverage is afforded here, it would not provide for the cost of the organization to get into compliance with the provisions of the law.
According to a recent report by UsableNet, 2018 saw a 181% increase in Federal lawsuits over 2017 and this figure does include state lawsuits, where NY led all states with a 64% share of the total state suits. The most state complaints were filed in California, Florida and New York but this is the first we’re seeing a specific targeting of marine products retailers. Unfortunately, the trend will continue in 2019 says the National Law Review, so be prepared and discuss coverage options with your agent or underwriter.