Four words that move a memory care claim

Behavioral expressions of dementia, including physical aggression, are clinically expected. They are part of the condition memory care exists to serve. A community that admits a resident with documented behavioral history has knowingly accepted a foreseeable risk, which is precisely what it is licensed, staffed and secured to manage.

So when one resident injures another, the claim against the community is about assessment, placement, care planning and supervision. In substance it is professional liability, and plaintiff counsel pleads it that way.

Whether your policy agrees depends on four words.

The wording

Assault and battery endorsements in this class are frequently not limited to intentional torts. A typical one applies to any claim arising out of assault or battery, extends to any act or omission in connection with the prevention or suppression of such acts, and then adds the phrase that does the damage:

> regardless of whether such Claim is pleaded as negligence

That phrase exists for exactly one purpose. It is drafted to defeat the argument that a negligence theory escapes the sublimit. Where it appears, a resident on resident injury sits at the assault and battery sublimit no matter how the complaint is framed.

For a memory care operator that is not an edge case. It is the everyday claim profile, sitting at a sublimit that is often a small fraction of the main limit.

Why the number matters less than the trigger

Two programs quoting the same assault and battery sublimit can provide very different coverage, because the trigger language differs.

An endorsement limited to intentional acts leaves the negligence theory intact at the full limit. An endorsement reaching anything arising out of assault or battery regardless of pleading does not. The declarations page shows the same number in both cases.

This is the general shape of the problem in senior care: the terms that decide outcomes are in the endorsement schedule, not on the summary page, and they do not appear in a premium comparison.

What to ask for

First, a carve-back. Ask that claims arising from the behavioral expression of a diagnosed condition be treated as professional liability at the full limit rather than as assault at the sublimit. That is the correct characterization of the exposure, and it is a defensible request rather than an exotic one.

Second, if the carve-back is unavailable, the number. A materially higher assault and battery sublimit, with its own aggregate, sized against the fact that this is a core rather than peripheral exposure for a memory care operator.

Read the abuse and molestation endorsement at the same time, because a single incident can implicate both, and check whether the two sublimits share an aggregate with each other or with the general aggregate.

What actually moves it

Underwriters price this on controls, so the conversation goes better when you bring evidence rather than a request.

For memory care specifically: behavioral assessment protocols including reassessment when behavior changes, staffing ratios on the memory care unit rather than facility-wide, de-escalation training records, and a documented process for deciding when a resident behavior has exceeded what the community can safely manage.

Facility-wide staffing ratios understate what the unit actually runs, and understating it helps nobody at a claim.

The pattern behind this

The common route into this problem is ordinary growth. An assisted living operator opens a memory care wing or converts a floor. The unit is added to the schedule of locations at renewal. Premium adjusts. Nobody revisits the wording.

The result is a program built around assisted living exposures now answering for the two exposures that distinguish memory care, elopement and altercation, with an assault sublimit and a professional services definition that were never examined against either.

Adding memory care to a schedule is not the same as underwriting it. Treat the addition as a re-underwriting event, and read the endorsement.

The question to ask your broker

Ask it exactly this way:

> Does our assault and battery endorsement apply to claims arising out of assault or battery regardless of how they are pleaded, and if so, what is the sublimit and does it have its own aggregate?

If the answer is that it applies regardless of pleading and the sublimit is a fraction of the main limit, then for a memory care operator that is the most important open item in the program, ahead of premium.