EXHIBIT 10(n)
LIABILITY CLAIMS INVESTIGATION, ADJUSTMENT
AND MANAGEMENT AGREEMENT
This Liability Claims Investigation, Adjustment and Management Agreement
(the "Agreement") is made as of the 1st day of June, 2001, between
Fitzgeralds Gaming Corporation on its behalf and on behalf of each of its
operating subsidiaries: Fitzgeralds Mississippi, Inc., Fitzgeralds Reno, Inc.,
Fitzgeralds Las Vegas, Inc., and 000 Xxxx Xxxxxx, LLC (collectively,
"Fitzgeralds" or "Client"), and Meritage Employer Services, LLC ("Meritage" or
"Consultant").
GENERAL TERMS AND CONDITIONS
1) INVESTIGATION AND SETTLEMENT OF CLAIMS
The Client agrees to use reasonable efforts to provide Meritage with copies of
claim incidents related to automobile, personal injury, property damage,
suspected loss or crime, and employment related complaints (including EEOC, ADA,
ADEA, FMLA, etc.) (collectively, the "Claims") within forty-eight (48) hours
after Client's receipt of notice of each such occurrence. Upon receipt, Meritage
agrees to investigate, manage and adjust such claims promptly and provide the
Client with a reasonable assessment of each case and recommendation as to
settlement or denial. Meritage will maintain standard claims files on all cases
in accordance with industry standards, and will provide monthly periodic reports
to the general manager and finance executive, and any other executive as
designated by the general manager of each property in regard to claim activity.
2) CLAIMS REVIEW AND PROCESSING
- All new claims will be reviewed, reserved and action taken within
five (5) working days of receipt by Meritage.
- Meritage will maintain regular communication with the Client. Any
major status or change in conditions shall be communicated to the
Client immediately.
- Claimant contact will be professional, and to the extent the
claimant has attorney representation, contact will be made only
with the attorney.
- Alleged damages will be investigated and verified, and multiple
estimates will be obtained for all damage claims. This provision
may only be waived at the direction of the Client.
- Subrogation and contributory negligence will always be considered
on every claim. Client will be consulted prior to dismissing any
of these options.
- Meritage will report any claim or loss that has the potential of
penetrating fifty percent (50%) of the deductible or self-insured
retention to the excess insurance carrier, as soon as all
information is available for the reporting requirements. Should
information be missing or unavailable, telephone or email contact
will initiate claim-reporting status as soon as possible.
3) INVESTIGATIONS
- Meritage's investigative procedures include, but are not limited
to:
i. Taking of statements, either written or recorded
ii. Obtaining police reports
iii. Photographs
iv. Background checks
v. Witness reports
vi. OSHA information, etc.
- In the event outside experts or surveillance is advisable,
Meritage will obtain the Client's prior written authorization to
proceed.
4) RESERVES
- Incurred loss reserves will be established as accurately as
possible for each claim.
- Incurred reserves may be changed or modified as additional
information becomes available on each claim.
- All incurred reserves will include anticipated total expenses,
including legal, to the conclusion of the case.
5) SETTLEMENT
- Meritage will obtain Client's and, where applicable, excess
insurance carrier's written authorization prior to accepting or
extending any settlement proposal. If telephonic authorization is
available, a written verification confirming the authorization and
amount must be transmitted to Meritage.
- All negotiations, offers and demands will be documented in the
appropriate claim file.
- Written releases will be obtained on all settled claims.
6) LITIGATION MANAGEMENT
- Meritage will use its best efforts to resolve any claim prior to
litigation.
- Should litigation be initiated, Meritage will promptly notify the
Client and select defense counsel from the approved client/carrier
list.
- Prior to authorizing payment, both Meritage and the Client will
promptly review all legal bills.
7) REPORTS AND LOSS HISTORY
Meritage will prepare and distribute monthly and quarterly reports to the
general managers and finance executives and to other parties at the direction of
the Client. The reports will outline claim activity, status and statistics for
the prior month's activities and provide a dollar-by-dollar and case-by-case
breakdown of claims cost as well as a projection of cost for unresolved claims.
Meritage understands that the information developed and supplied is proprietary
to and the property of the Client and shall not release or disseminate such
information without the express written permission of the Client. Meritage will
maintain and make available to Client all claims files, cases, claim reports,
claim items, and related documents at any time.
8) TELEPHONIC COMMUNICATIONS AND SITE VISITS
Meritage will provide telephone guidance whenever asked, on any claim or
situation that may mature into a claim, at no charge. Additionally, Meritage
will provide a qualified adjuster to visit with the Client on a weekly or
semi-monthly basis to discuss any claim issues or questions, if desired by the
Client's officials. Meritage recommends one of the adjustors be present either
in person or by telephonic representation at the Client's Safety and Claims
Committee meeting to be held once a month
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to discuss claims trends, safety issues and loss control recommendations. This
time element could be adjusted, with Client's consent, as the situation
develops, to either bi-monthly or quarterly as the claim frequency dictates.
9) CONDUCT
Meritage acknowledges and understands that the Client is in the hospitality
business and that the Client markets itself to various clientele. Meritage will
use the utmost care and professionalism as a contracted representative of Client
to protect the image and reputation of the Client in the execution of Meritage's
responsibilities under this Agreement.
Meritage understands and accepts that it has a fiduciary duty to the Client and
will act and conduct itself in the utmost good faith in handling, investigating
and settling claims on the Client's behalf. Additionally, Meritage shall
disclose any conflict of interest that may arise as a result of the handling,
investigation or settlement of any claim including, without limitation, any
prior association with any individual or entity making a claim against the
Client.
Meritage will be acting solely as an independent contractor when providing the
services as stipulated under this Agreement.
10) LITIGATION
Meritage will closely monitor all denied and litigated claims so that all
interested parties are kept informed as to any developments. Meritage will
conduct additional investigations as necessary and coordinate all litigated
claims with Client and designated legal counsel or the excess carrier of record.
Meritage will keep the excess carrier advised of any claim reaching fifty
percent (50%) of the SIR and as otherwise required by the excess carrier. Copies
of all reports will be forwarded to the excess carrier from that point on and
all interested parties will be kept fully advised.
11) TERM
This Agreement shall, subject to the good faith negotiations set forth below, be
effective until resolution of all claims asserted in the Fitzgeralds bankruptcy
cases currently pending, or against any liquidating trust or similar entity
formed to effect the liquidation of Fitzgeralds, unless canceled by either
party. Client may cancel this Agreement with ninety (90) days advance written
notice at anytime. Meritage may terminate this Agreement thirty (30) days after
giving notice of Client's default hereunder, provided that such default has not
been cured in such time.
The parties hereby agree to engage in good faith negotiations to make reasonable
adjustments to the fees payable hereunder during the sixty (60) day period prior
to each sale of an operating subsidiary (or substantially all its assets) and
during the sixty (60) days prior to the consummation of any plan that would
assign this Agreement to any reorganized Fitzgeralds or any liquidating trust or
similar entity formed in Fitzgeralds' currently pending bankruptcy cases.
Meritage acknowledges and understands that the Client intends to sell all or
substantially all of its assets including assets of the operating entities on
whose behalf Client has entered into this Agreement. As the assets of the
operating entities are sold or upon termination of the Agreement, open files
will be handled in one of three ways, at the Client's sole discretion:
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- Meritage would continue to handle all open files until such files
are closed for the per claim fee set forth in Exhibit A; or
- Meritage would handle the open files on a time and expense basis;
or
- Meritage would return files to Client or the operating subsidiary
(contingent upon carrier approval, if so required).
12) COMPENSATION INVOICING AND DEPOSIT
Rate of Payment for Services. Client agrees to pay Meritage for services in
accordance with the Contracted Fees schedule set forth in Exhibit B attached
hereto and incorporated herein by reference, subject to a three percent (3)
annual increase on each anniversary of this Agreement.
Invoicing and Deposit. Upon execution of this Agreement and prior to the
effective date of services being rendered, the Client shall pay a deposit, in
advance, in the amount of $23,000. Client shall pay Meritage contracted annual
fees prorated monthly and payable on the first day of the month for services to
be rendered that month as set forth in Exhibit A for annualized Contracted
Standard Service Levels. Exhibit B provides the hourly rates and claim rates to
be charged if the annualized Standard Service Levels for the Client are exceeded
over the next twelve (12) months. If the aggregate of annualized Standard
Service levels for all categories is not utilized and this Agreement continues
for twelve (12) months, Meritage will remit any overpayment back to the Client.
Client may choose to have next period fees offset by the amount due from
Meritage. The Client shall have general rights of offset and recoupment with
respect to amounts owing under this Agreement and the other Risk Management
Contracts (hereinafter defined).
Exhibit B-2 reflects examples of the rate of payment for services. To the extent
that reimbursement is being sought for approved out-of-pocket expenses, receipts
will accompany all invoices submitted to the Client for reimbursement. The
Client shall remit payment within fifteen (15) days of receipt of a proper and
payable invoice.
13) INDEMNIFICATION
Meritage agrees to indemnify, defend and hold Client harmless from all claims,
demands, costs, fees (including reasonable attorneys' fees), judgments and
liability asserted against Client by a third party which arise out of
negligence, gross negligence or willful misconduct of Meritage in the
performance or non-performance of this Agreement.
Client must provide written notification of the claim for indemnity that has
been asserted for Meritage to evaluate allegations and validity of the claim
arising solely as a result of Company's actions. Both parties understand and
agree this indemnity provision is only applicable where any alleged damages to a
third party occur solely as a result of Meritage's negligence, gross negligence
or willful misconduct.
This indemnification will not apply where action or inaction of the Client is
the sole cause of litigation or fines, where Meritage has made written
reasonable recommendations to the Client, and the Client failed to follow such
written recommendations from Meritage.
Client agrees to indemnify, defend and hold Meritage harmless from all claims,
demands, costs, fees (including reasonable attorneys' fees), judgments and
liability asserted against Meritage by a third party, which arise out of the
negligence, gross negligence or willful misconduct of Client in the performance
or non-performance of this Agreement.
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14) OTHER TERMS AND CONDITIONS
Meritage will comply in all regards to the requirements for a third party
administrator as set forth under the laws of Nevada, Mississippi, and Colorado.
Meritage shall maintain with a Best Rated A+ carrier adequate Error and
Omissions coverage, and shall provide, at the request of the Client evidence of
the coverage.
All adjusters of Meritage have more than three (3) years experience and no
trainees will be used on any account.
Meritage is properly licensed pursuant to Nevada law as Third Party Adjustor.
All adjusters are licensed under this master license. There are no license
restrictions.
Meritage agrees that this Agreement may be assigned by the Client to any
liquidating trust or similar entity formed to effect the liquidation of
Fitzgeralds, and hereby consents and agrees not to object to any assumption and
assignment of this Agreement to such an entity.
If a dispute or grievance between the parties arises with respect to the
obligations of the parties under this Agreement or as a result of this
Agreement, and such dispute or grievance cannot be resolved in an informal
fashion, the parties hereby agree that all disputes arising our of or related to
this Agreement shall be subject to the exclusive jurisdiction of the United
States Bankruptcy Court for the District of Nevada, and each hereby waives trial
by jury and any assertion that such dispute is a non-core matter.
15) BANKRUPTCY COURT APPROVAL
Meritage acknowledges and understands that the Client and each of the operating
subsidiaries commenced cases under Chapter 11 of the United States Bankruptcy
Code on December 5, 2000 and that such proceedings are still pending. Meritage
further acknowledges and understands that this Agreement shall not be effective
unless and until approved by the Bankruptcy Court.
16) REGULATORY REQUIREMENTS
Meritage acknowledges and agrees that Client is subject to the licensing and
regulatory control of the Nevada Gaming Control Board and various other state,
county and city gaming regulatory enforcement agencies (collectively the "Gaming
Authorities"). Said Gaming Authorities may request or require the Client to
obtain and report certain information regarding Meritage and its principals. To
the extent so required, Meritage agrees to fully and promptly cooperate and
comply with such request for information, as authorized by the Client.
17) NOTICES
(i). Notices to Client should be sent to: President
Copy to: General Counsel
Fitzgeralds Gaming Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
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General Manager
Fitzgeralds Reno, Inc
X.X. Xxx 00000
Xxxx, Xxxxxx 00000
General Manager
Fitzgeralds Las Vegas, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
General Manager
Fitzgeralds Mississippi, Inc.
000 Xxxxx Xxxx
Xxxxxxxxxxxxx, Xxxxxxxxxxx 00000
General Manager
000 Xxxx Xxxxxx LLC
000 Xxxxxxx Xxxxxx
X.X. Xxx X
Xxxxx Xxxx, Xxxxxxxx 00000
(ii). Notices to Meritage should be sent to: Xxxxxxxx Xxxxxx
Meritage Employer Services
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxx, Xxxxxx 00000
18) COMPLETE AGREEMENT
This Agreement, together with the Claims Processing and Managed Care Services
Contract, the Liability Claims Investigation, Adjustment and Management
Agreement, the Workers Compensation Service Agreement and the Consulting
Contract (all between Consultant and Client) (this Agreement and such
agreements, collectively, the "Risk Management Contracts"), contain the entire
agreement between the parties hereto with respect to the matters covered herein.
Any modification to this agreement must be agreed upon by both Meritage and the
Client and set forth in written instrument.
19) APPLICABLE LAW
This Agreement shall be construed in accordance with the laws of the State of
Nevada.
.. . .
.. . .
.. . .
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IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of
the date first above written.
FITZGERALDS GAMING CORPORATION MERITAGE EMPLOYER
SERVICES, LLC
/s/ XXXXXXX X. XXXXXXXX
------------------------- /s/ XXXXXXXX XXXXXX
Xxxxxx X. Xxxxxxxx ----------------------------
President and CEO Xxxxxxxx Xxxxxx
President
FITZGERALDS RENO, INC.
FITZGERALDS LAS VEGAS, INC.
/s/ MAX L. PAGE
------------------------- /s/ XXXXXXX XXXXXX
Xxx X. Page ----------------------------
Exec. Vice President and Xxxxxxx Xxxxxx
General Manager Vice President
and General Manager
FITZGERALDS MISSISSIPPI, INC.
000 XXXX XXXXXX, LLC
/s/ XXXXXXX XXXXXXXX
------------------------- /s/ XXX XXXXXXX
Xxxxxxx Xxxxxxxx ----------------------------
Vice President and General Manager Xxx Xxxxxxx
Vice President and General Manager
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EXHIBIT A
FEE SCHEDULE
STANDARD SERVICE LEVELS EXHIBIT A-1
STANDARD SERVICE LEVELS ANNUALIZED & MONTHLY CLAIMS COST
LIABILITY CLAIMS
BASED ON
HISTORICAL GLOBAL
CLAIMS FEE PER BLACK MONTHLY
TYPE OF CLAIM COUNTS CLAIM HAWK LAS VEGAS RENO TUNICA TOTALS BILLING
# of Claims & Costs
------------------ ---------- ------- -------------------------------------------------------------- -------
Auto Liability 320 $175 80 80 80 80 320
------------------ ---------- ------- ------- --------- -------- -------- --------- -------
General Liability- $14,000 $14,000 $14,000 $14,000 $56,000 $4,667
Property Damage ------- --------- -------- -------- ---------
310 $175 40 80 80 110 310
------- --------- -------- -------- ---------
$7,000 $14,000 $14,000 $19,250 $54,250 $4,521
------------------ ---------- ------- ------- --------- -------- -------- ---------
General Liability- 50 115 75 120 360
Bodily Injury ------- --------- -------- -------- ---------
360 $450 $22,500 $51,750 $33,750 $54,000 $162,000 $13,500
------------------ ---------- ------- ------- --------- -------- -------- ---------
Litigated Claims 30 $900 2 6 4 18 30
------- --------- -------- -------- ---------
$1,800 $5,400 $3,600 $16,200 $27,000 $2,250
------- --------- -------- -------- ---------
Crime 4 $2,000
Investigations 1 1 1 1 4
------------------ ---------- ------- ------- --------- -------- -------- ---------
$2,000 $2,000 $2,000 $2,000 $8,000 $667
------------------ ---------- ------- ------- --------- -------- -------- ---------
Employment 28 $2,000
Investigations 5 7 5 11 28
------------------ ---------- ------- ------- --------- -------- -------- ---------
$10,000 $14,000 $10,000 $22,000 $56,000 $4,667
------- --------- -------- -------- --------- -------
TOTALS BY PROPERTY $57,300 $101,150 $77,350 $127,450 $363,250 $30,271
======= ========= ======== ======== ========= =======
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CONTRACTED RATES AND MONTHLY BILLING EXHIBIT A-2
LIABILITY CLAIMS
BASED ON
HISTORICAL GLOBAL
CLAIMS FEE PER BLACK MONTHLY
TYPE OF CLAIM COUNTS CLAIM HAWK LAS VEGAS RENO TUNICA TOTALS BILLING
# of Claims & Costs
------------------ ---------- ------- -------------------------------------------------------------- -------
Auto Liability 320 $130 80 80 80 80 320
------------------ ---------- ------- ------- --------- --------- ------- -------- -------
General Liability- $10,400 $10,400 $10,400 $10,400 $41,600 $3,467
------- --------- --------- ------- --------
Property Damage 310 $130 40 80 80 110 310
------- --------- --------- ------- --------
$5,200 $10,400 $10,400 $14,300 $40,300 $3,358
------------------ ---------- ------- ------- --------- --------- ------- --------
General Liability- 50 115 75 120 360
------- --------- --------- ------- --------
Bodily Injury 360 $381 $19,041 $43,794 $28,562 $45,698 $137,095 $11,425
------------------ ---------- ------- ------- --------- --------- ------- --------
Litigated Claims 30 $600 2 6 4 18 30
------- --------- --------- ------- --------
$1,200 $3,600 $2,400 $10,800 $18,000 $1,500
------- --------- --------- ------- --------
Crime 4 $1,000
Investigations 1 1 1 1 4
------------------ ---------- ------- ------- --------- --------- ------- --------
$1,000 $1,000 $1,000 $1,000 $4,000 $333
------------------ ---------- ------- ------- --------- --------- ------- --------
Employment 28 $1,250
Investigations 5 7 5 11 28 -
------------------ ---------- ------- ------- --------- --------- ------- --------
$6,250 $8,750 $6,250 $13,750 $35,000 $2,917
------------------ ---------- ------- ------- --------- --------- ------- -------- -------
TOTALS BY PROPERTY $43,091 $77,944 $59,012 $95,948 $275,995 $23,000
======= ========= ========= ======= ======== =======
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EXHIBIT B
STANDARD SERVICE LEVELS
LIABILITY CLAIMS ADJUSTMENT GLOBAL FEES
Type of Claim Global fee Per Claim
------------- --------------------
Auto Liability $ 175
------
General Liability-Property Damage $ 175
------
General Liability-Bodily Injury $ 450
------
Litigated Claims (credit given when claim changes status) $ 900
------
Crime Investigations $2,000
------
Employment Investigations $2,000
------
LIABILITY CLAIMS ADDITIONAL EXPENSE ON LITIGATED CLAIMS FOR OUTSIDE SERVICES
Expense Estimated Hours Cost
------------------ --------------- ---------------------------
Adjuster $45 per hour
------------------ --------------- ---------------------------
Additional Expense Billed Expense as incurred.
------------------ --------------- ---------------------------
Travel
------------------ --------------- ---------------------------
MIS
------------------ --------------- ---------------------------
Other (Misc.)
------------------ --------------- ---------------------------
TOTAL
Plus: Related travel expenses (airfare, hotels, auto, etc.)
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EXHIBIT B-2
EXAMPLE 1
The Agreement with the Client continues for 12 months and results in the
following hours incurred by Meritage on behalf of the Client:
Auto 350 @ $130 $ 45,500
General Liability Property Damage 200 @ $130 $ 26,000
General Liability Bodily Injury 300 @ $381 $114,300
Litigated 30 @ $600 $ 18,000
Crime 4 @ $1,000 $ 4,000
Employment 28 @ $1,250 $ 35,000
--------
TOTAL HOURS $242,800
============ ========
Client remits ($275,995) to Meritage. Payment over 12 months.
Meritage remits ($33,195) back to Client. Client may choose to have next period
fees offset by the amount due from Meritage.
EXAMPLE 2
The Agreement with the Client continues for 8 months and is terminated upon the
sale of the assets of the Client with the following hours incurred by Meritage
on behalf of the Client:
Auto 150 @ $130 $ 19,500
General Liability Property Damage 200 @ $130 $ 26,000
General Liability Bodily Injury 200 @ $381 $ 76,200
Litigated 30 @ $600 $ 18,000
Crime 4 @ $1,000 $ 4,000
Employment 28 @ $1,250 $ 35,000
--------
TOTAL HOURS $178,700
============ ========
CLIENT PAID MERITAGE MONTHLY FEES FOR EIGHT MONTHS AT $23,000 PER MONTH,
TOTALING $184,000.
There would be no adjustment to the monthly fee paid since the agreement was
terminated by the Client prior to 12 months.
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