E&O: ROAD MAP TO POLICY ANALYSIS Copyright 2015

E&O: ROAD MAP TO POLICY ANALYSIS Copyright 2015 by International Risk Management Institute, Inc. Course Objectives Understand important contract features in general, as well as those specific to insurance policies and how they may or may not affect coverage. Know the general sections of a policy their

purpose, how they can be modified, and the importance of each. Understand how the sections of a policy interact and be able to explain how they work together to determine coverage. Course Objectives Explain the importance of each area of special interest and be able to explain how they work together. Understand and explain how a program of insurance should be coordinated and why it

is important. Understand how all of the above impact errors and omissions (E&O) loss control, new sales, and retention of existing business. Understanding the Native Language CHAPTER 1 Chapter Objective Upon completion of this chapter, the student should be able to understand

the important contract features in general, as well as those specific to insurance policies and how they may or may not affect coverage. Contract Basics Offer and acceptance Offerwillingness to enter into an agreement with another party; clear and well communicated Acceptancethe assent of the offer; must be unconditional and clearly communicated

Contract Basics Offer and acceptanceinsurance transaction Application is completed Agent conveys the offer Insurer has three options Accept and issue Reject Accept with modifications (counteroffer) Contract Basics

Consideration Value that each party gives to the other when making the contract Insurance contracts Insurer promises to pay for covered losses, defend, or perform other services (inspections) Insured agrees to pay premiums, abide by the requirements of the policy Contract Basics Legal capacity Right to make binding agreements for oneself

(competent parties) Insurer has no legal capacity if it is not licensed in a certain state Contract Basics Legal purpose Cannot be something that is against the law Examples: murder, drug dealing Other Legal Terminology Valid contract Voidable contract

Void contract Unique Characteristics of Insurance Contracts

Principle of indemnity Insurable interest Unilateral contract Conditional contract Personal contract Doctrine of adhesion Aleatory contract Subrogation Doctrine of reasonable expectation

Doctrine of good faith Unique Characteristics of Insurance Contracts Principle of indemnity Reimbursed for a loss subject to limits and terms Put the insured back in the same financial condition as prior to the loss Replacement cost coverageno deduction for depreciation; can be overindemnified Valued policiespayment of full face value of the policy in the event of a total loss

Liability insurancecontract of indemnity against legal liability; pays even if the insured becomes bankrupt Unique Characteristics of Insurance Contracts Insurable interest Financial interest in the value of the subject of insurance Must clearly prove a personal stake in the item being insured at the time of loss Reasons for insurable interest

Without insurable interest, it becomes a wager or gambling contract; against public interest Increases moral hazard Helps measure the amount of the financial loss Unique Characteristics of Insurance Contracts Unilateral contract Only one party makes an enforceable promise Insurer makes a promise to pay a covered loss Insured makes few, if any, enforceable

promises Insured must only fulfill certain conditions Unique Characteristics of Insurance Contracts Conditional contract Performance of the agreement is dependent upon a condition (event, not certain to happen, must occur before the performance becomes due) Two types of conditions Condition precedentaction that must be performed to trigger the other partys duty (i.e., insured must notify

the company of an accident) Condition subsequenttermination of an existing obligation (i.e., claim denial; insured has 1 to 2 years to file suit against the insurer) Unique Characteristics of Insurance Contracts Personal contract Cannot be assigned or transferred to another party Insured must meet certain underwriting standards (loss history, moral character, credit

history) Unique Characteristics of Insurance Contracts Contract of adhesion Insured must accept or adhere to the entire contract Insurer develops the policy, and the insured must either accept or reject Ambiguities are resolved in favor of the party with lesser knowledge (insured)

Unique Characteristics of Insurance Contracts Aleatory contract Agreement concerned with an uncertain event that provides for unequal transfer of value Insured can pay premiums for many years and never sustain a loss Insured can pay premiums for a short period of time and sustain a large loss Unique Characteristics of Insurance Contracts

Subrogation Rights to recover the amount of a loss from the party that is legally liable Assigned to the insurer Based on the indemnity principle in the policy Unique Characteristics of Insurance Contracts Subrogation Elements of subrogation Insurer is contractually obligated to pay Insurer is secondarily liable for the loss

Third party is primarily responsible for the loss Purposes of subrogation Prevents overindemnification (keeps the insured from collecting twice) Holds the tortfeasor responsible for the loss Keeps insurance premiums reasonable Unique Characteristics of Insurance Contracts Doctrine of reasonable expectations Allows coverage to apply when the

reasonable expectations of the insured would result in claim payment despite the lack of policy provisions creating coverage or ambiguous language Places the burden on insurers to communicate coverage and exclusions clearly and accurately Unique Characteristics of Insurance Contracts Doctrine of good faith Insurers make promises to cover an insured

for events that may or may not happen in the future Insured is in possession of facts unknown to the insurer at that time Higher standard of honesty imposed on both parties than that of regular commercial contracts Good faith on the part of the insured Unique Characteristics of Insurance Contracts Doctrine of good faith

Warranty Statement of fact provided by the insured that will void the contract if not true Express warrantyexplicitly stated within the policy Implied warrantynot stated but generally understood and recognized by both parties Unique Characteristics of Insurance Contracts Doctrine of good faith Representation

Truthful completion of an insurance application Answers considered representations If an answer is dishonest, the insurer may be able to void the contract Concealment Willful act of holding back pertinent information Unique Characteristics of Insurance Contracts Doctrine of good faith Insurers good faith obligationsrefrain from

Refusing to pay for a covered loss Causing an unfounded delay in making payment Deceiving the insured Exercising any unfair advantage to pressure an insured into an unfavorable settlement Landmarks in the Insurance Contract

and Their Importance CHAPTER 2 Chapter Objective Upon completion of this chapter, the student should know the general sections of a policy, their purpose, how they can be modified, and the importance of each. Standard vs. Nonstandard Policies

Insurance Services Office, Inc. (ISO): most widely recognized provider of standard forms American Association of Insurance Services: similar but less complete product offerings National Council on Compensation Insurance: workers compensation policy forms Drafted with the needs of the average insured in mind Can be used across all industries with some modification by endorsements to meet specific needs

Standard vs. Nonstandard Policies Advantages of standard policy forms Standard vs. Nonstandard Policies Standard forms and language updated based on Loss exposures that change Changing underwriting philosophies Case law interpreting coverage Nonstandard policies and endorsements Used where no standard form exists Used for risks that need specialized coverage

Used where no standard market exists Companies develop their own policy forms Agents must read and understand the coverage differences Policy Format Declarations (workers compensation: information page) Insuring agreement Covered property Covered perils (property forms) Exclusions

Definitions Conditions Endorsements Policy Format Declarations (workers compensation: information page) Information about the insured

Name and address Type of organization (corporation, partnership, etc.) Policy period Policy limits Deductibles Premium Endorsements attached

Policy Format Declarations (workers compensation: information page) Important for information to be correct Declarations can be binding Make sure policy conforms to the specifications in the application Changes in locations, additional locations, limits, etc., must be modified by endorsement Verify named insured, location addresses, and other important information that can result in

uncovered claims Policy Format Declarations (workers compensation: information page) Take time to verify all information on the application and/or Dec page with the insured Extra time shows the insured you are concerned about proper coverage Shows that you value their business Increases sales satisfaction and retention Reduces the likelihood of E&O losses resulting

from uncovered claims Policy Format Insuring agreement Grants the coverage provided by the policy Very broad in scope Liability: promises to pay for all liability arising from bodily injury or property damage occurring during the policy period and related defense Property: promises to pay for all direct damage to insured property

Places few restrictions Policy Format Covered property (property policies) Varies from form to form Provides detailed descriptions of property covered or not covered Generally three categories of covered property Building Personal property of the insured Personal property of others

May contain sublimits for covered property Policy Format Covered perils (property coverage) Most property policies contain a covered perils section Commercial property: covered perils form is used Named perils: names only the perils that are covered Open perils; special perils; all risks

Covers anything that is not specifically excluded Broader coverage Policy Format Exclusions Limit coverage granted in the insuring agreement Can apply to specific perils, certain types of property, or specific types of losses Serve one of the following purposes

Eliminate or reduce overlapping coverage Remove coverage not needed by the typical insured Reduce the incentive to create losses Remove coverage for uninsurable risks Policy Format Exclusions Eliminate or reduce overlapping coverage Arranges policies to dovetail instead of

overlapping Reduces duplicate charges and conflicts between insurers Example: workers comp and employers liability Policy Format Exclusions Remove coverage not needed by typical insureds Insured may not have exposure to certain risks Rating structure does not always reflect actual exposure of an insured

Coverage may be bought back via endorsement or separate coverage form Policy Format Exclusions Reduce incentive to create losses Moral hazard: insureds incentive to profit from insurance by engaging in illegal activity Morale hazard: reduces the insureds incentive to diligently protect against loss because insurance will pay

Policy Format Exclusions Removing coverage for uninsurable risks Reimbursing expenses incurred to develop and market products that failrisk of doing business Insurers are unwilling to write coverage Flood

Nuclear War Coastal wind exposure Policy Format Definitionsthe policy dictionary Words that have special meaning within the contract must be defined No definition means that words take on their traditional meaning Can be used to clarify coverage, restrict coverage, or grant coverage

Defined terms identified with quotation marks, bold faced or italicized fonts Policy Format Conditions Enumerates the insureds rights and responsibilities Enumerates the insurers rights and responsibilities Other items addressed Subrogation Insureds duties after loss

How losses are apportioned when more than one policy applies Violation of a condition can lead to coverage denial Policy Format Endorsements Used to tailor terms to the needs of the individual insureds business Used to Grant additional coverage Restrict or eliminate coverage

Change coverage by changing or adding definitions Modify the rights of the insurer or insured by changing or adding conditions Schedule covered persons, projects, or property Policy Format Endorsements Standard endorsements exist Manuscript endorsements can be drafted if needed Endorsements can be brief; others can

resemble a separate policy with grants of coverage, exclusions, and conditions Often added during the policy term Package Policies Single policy that includes two or more coverages that are otherwise written as separate policies Two types of commercial packages Commercial package policy (CPP) Businessowers policy (BOP)

Package Policies CPP Contains two or more coverage parts Commercial property Boiler and machinery

Inland marine Commercial general liability (CGL) Pollution liability Commercial automobile Package Policies CPP Several advantages Fewer gaps in coverage Business insured pays relatively lower premiums because individual policies are not purchased Savings are passed on to the insured in the form of

package discounts Named insured has the convenience of a single policy Package Policies BOP Designed to provide property and general liability coverage for eligible small businesses Written on a portfolio of special BOP forms Indivisible package that includes property, liability, common policy conditions Limited underwriting eligibility

35,000 square footage maximum $6 million in annual gross sales Specific types of artisan contractors Connecting the Dots CHAPTER 3 Chapter Objective Upon completion of this chapter, the student should understand how the sections of a policy interact and be able

to explain how they work together to determine coverage. Considerations for Coverage and Policy Analysis A number of factors must be considered Claims personnel make the final determination of whether or not coverage exists Claim paid based on policy language Denial must include formal documentation citing specific policy language

Considerations for Coverage and Policy Analysis A number of factors must be considered Agents constantly receive hypothetical questions Always use a verbal disclaimer Questioner must understand that the answer is general in nature and every loss is unique Coverage is based on the entirety of the circumstances If the question involves an actual claim, agents

should refer the question to a qualified claims representative of the insurer Considerations for Coverage and Policy Analysis A number of factors must be considered Details are extremely important

Losses may look covered on the surface Details may uncover circumstances for denial Losses may look uncovered on the surface Details may uncover circumstances that actually provide coverage Considerations for Coverage and Policy Analysis A number of factors must be considered Property coverage

Type of property Location listed on the policy Newly acquired Property subject to limitations Property not covered Insurable interest at the time of loss

Considerations for Coverage and Policy Analysis A number of factors must be considered Liability coverage Circumstances surrounding the claim Allegation made by plaintiff

Is the person or entity an insured under the policy? Coverage that is voluntary (medical payments) Possible negligence on the part of someone other than an insured Considerations for Coverage and Policy Analysis A number of factors must be considered Other factors Additional insureds Other coverage that may apply Any specific endorsements that add or take away

coverage Proprietary forms Surplus lines companies and forms Considerations for Coverage and Policy Analysis A number of factors must be considered E&O

Check policy for correct limits Any endorsements added or missed Named insured reads correctly All location addresses correct Coverage may still exist, but reputation damage is hard to repair Insureds see agents and companies as the same Who Is an Insured Insured is broken into three segments

Named insured Automatic insureds Additional insureds Who Is an Insured Named insured Should be accurate on both the submission and the policy Be careful with multiple named insureds Unrelated insureds need special attention One entity will not be able to recover from the other if they are both named on the same policy

Named insureds are individuals or entities to which the policy is issued They have more rights and responsibilities and are subject to more exclusions Who Is an Insured Named insured Expanded responsibilities and exclusions

More stringent loss reporting requirements Required to pay premiums Receive any return premiums May cancel the policy Subject to the business risk exclusions Receive cancellation notice Who Is an Insured

Other automatic insureds Personal lines Residents of the household related by blood, marriage, or adoption Full-time students away at school under the age of 24 Permissive users for auto policies Others under 21 and in the insureds care Who Is an Insured Other automatic insureds Commercial lines

Permissive users of vehicles Spouses of sole proprietors and partners Members and managers of limited liability companies Employees Volunteers Real estate managers Vicarious liability Who Is an Insured Automatic insureds in the CGL Stockholderswhile acting within the scope

of their duties as such Proprietorships Includes the spouse of the individual with respect to the conduct of the business Care should be taken as proprietorships grow and become corporations or limited liability companies Who Is an Insured Automatic insureds in the CGL Partnerships and joint ventures Joint venturetwo businesses joining together on one project

Spouses included while in the course of business Joint venture or partnership must be designated as a named insured If dissolved, deleted from coverage Who Is an Insured Automatic insureds in the CGL Executive officers Separate status from employees Limitation that applies to employees does not apply to exec officers for the fellow employee exclusion

Employees as insureds Included for two basic reasons Perceived corporate responsibility in protecting employees from loss arising from activities on behalf of their employer Help secure cooperation in defending claims made against the employer Who Is an Insured Automatic insureds in the CGL Volunteer workers Added due to widespread use of endorsements to add coverage

Can be excluded Leased workers Rise in labor leasing firms and the popularity of use Co-employer relationship similar to employment Who Is an Insured Automatic insureds in the CGL Real estate managers

In the past, often lived on premises Not a defined term; can be broadly interpreted Gives primary coverage to the real estate manager Other insurance clause could give rise to coverage issues Who Is an Insured Automatic insureds in the CGL Professional services exclusion

Classification and premium determination do not contemplate this exposure Best treated under E&O-type policies Other automatic insureds Legal representative Newly acquired or formed organizations subject to certain conditions for 90 days Insuring Agreement Property coverage Homeowners policies

Coverage Adwelling Coverage Bother structures (10 percent of A) Coverage Cpersonal property (50 percent of A) Coverage Dloss of use (30 percent of A) Coastal regions could see some limits reduced Coverage B2 percent

Coverage C30 percent Understand insurer guidelines and limitations Proper risk assessment should be done to discover coverage gaps Reduce E&O claims Insuring Agreement Property coverage Commercial property Direct physical loss or damage to Real property

Business personal property Property of others List of property not covered that includes part of real property Most can be added back by endorsement Covered perils are dealt with in separate forms Basic form (approximately 11 perils) Broad form (several additional perils added) Special form (risks of direct loss subject to exclusions)

Insuring Agreement Liability coverage Usually the broadest insuring agreements Promise to pay all sums the insured becomes legally obligated to pay for bodily injury and property damage Duty to defend if coverage exists Coverage territory can be limited or worldwide Exclusions and Limitation Property limited Certain types of property may be limited

Some limited to dollar amount Some limited to certain perils Some limited to both Exclusions and Limitation Property not covered Personal lines Exclusions and Limitation Property not covered Commercial lines

Exclusions and Limitation Perils not covered Basic form and broad form perils No coverage unless specifically named Still contain exclusions for clarification purposes Special perils Covered unless specifically excluded Exclusions and Limitation Perils not covered Common exclusions

Flood, rising water, tidal surge, water or waterborne debris that backs up through sewers or drains Earth movement, earthquake, sinkhole, landslide Wear and tear, deterioration Pressure or weight of water or ice Vandalism or malicious mischief while vacant for more than a certain number of days Ordinance or law Governmental action Nuclear Pollution, smoke or soot from agricultural smudging Others that will be discussed during coverage-specific classes

Exclusions and Limitation Liability exclusions Common exclusions in personal lines Motor vehicle liability (homeowners) Hovercraft liability (homeowners) Vehicles owned and not insured by the policy (auto) Vehicles furnished or available for use (auto) Intentional acts Exclusions and Limitation

Liability exclusions Common exclusions in commercial liability Contractual liability

Pollution Damage to property of others Impaired property Product recall Liquor liability War Nuclear Exclusions and Limitation How exceptions affect coverage Most policies contain some exclusions that have exceptions

Exceptions to exclusions help shape coverage Exceptions give coverage back under certain conditions Exclusions and Limitation How exceptions affect coverage Examples Contractual liability is excluded in the CGL; however, there is an exception to that exclusion for insured contracts. Note that is a defined term in the policy since it is in quotation marks.

Exclusions and Limitation How exceptions affect coverage Examples Watercraft liability is excluded in both personal and commercial liability. Both include exceptions to that exclusion. Typically, the CGL policy gives back coverage for nonowned watercraft less than 26 feet. Personal liability policies give back coverage depending upon size, type, and horsepower of engine and whether it is owned, rented, or used by the insured.

Exclusions and Limitation How exceptions affect coverage Examples Property damage exclusions contain coverage grants for certain types of property. The homeowners policy allows the insured to request coverage up to a small sublimit for damage to property of others. The CGL policy has some very specific exceptions to the exclusion for damage to property of others.

Exclusions and Limitation How exceptions affect coverage Examples Liquor liability is excluded in the CGL. This exclusion contains an exception that gives coverage back to those who are not in the business of manufacturing, distributing, selling, serving, or furnishing of alcoholic beverages. This is commonly called host liquor liability. Exclusions and Limitation How exceptions affect coverage

Examples Damage to property exclusion contains some very precise, sometimes complicated and confusing language that gives back coverage under certain conditions as illustrated in the following exhibit. Exclusions and Limitation How exceptions affect coverage Other exclusions Absolute exclusionsapply regardless of circumstances Anti-concurrent causation exclusionsexclude all

coverage if an excluded cause of loss causes a covered cause of loss to be triggered Example: flood loss causes a short that results in a fire that damages a building; damage caused by the flood is excluded, thereby eliminating coverage for the fire damage as well Definitions All contracts have words or terms that have special meaning within the scope of the contract Those words or terms must be defined

within the contract Result: interpreted differently than intended Definitions Definition of terms may vary by policy form Not all policies contain the same definitions Definitions section (policy dictionary) located differently Personal linesfront of policy Commercial linesback of policy

Knowing what terms are defined is important marked by quotation marks, bold-faced or italicized print Examples on following slide Definitions Help shape coverage Example Contractual liability is excluded in the CGL and business auto coverage Exclusion contains an exception for insured contracts

As a result, while contractual liability is excluded, there is a coverage grant for those contracts that fit the definition Definitions Help shape coverage Example CGL policy covers personal and advertising injury Note that this is a defined term The definition tells us what types of personal and advertising injury losses the policy covers Still subject to additional exclusions and

exceptions Conditions Enumerate the insureds and the insurers rights and responsibilities Vary from policy to policy A number of conditions are common to all policies Conditions Duties in the event of occurrence, claim, or suit

Prompt notice Cooperate in investigation or defense Could be grounds for denial of claim Subrogation Insurers right to recover from a responsible third party Can be waived in most policies, but conditions for waiver vary Conditions Package policies can contain conditions

specific to property, liability, and other coverage sections Also contain general conditions that apply to all sections Homeowners policy example on next slide Conditions Section I (property) Insurable interest and limit of liability Duties after loss Loss settlement Loss to a pair or set

Appraisal Other insurance and service agreement Suit against us Our option Loss payment Abandonment of property Mortgage clause No benefit to bailee Nuclear hazard clause Recovered property Volcanic eruption period Policy period

Concealment or fraud Loss payable clause Conditions Section II (liability) Limit of liability Severability of insurance Duties after occurrence Duties of an injured personCoverage Fmedical payments to others Payment of claimCoverage Fmedical payments to others Suit against us

Bankruptcy of an insured Other insurance Policy period Concealment or fraud Conditions Section I and II Liberalization clause Waiver or change of policy provisions Cancellation Nonrenewal

Assignment Subrogation Death Endorsements Policies designed to cover wide variety of insureds and common exposures Endorsements need to be used to include include coverage to meet a specific insureds needs Endorsements

Add coverage that the policy does not automatically include Adding physical damage and/or liability for watercraft to a homeowners policy Endorsements Broadening coverage Including employees as insureds when they drive personal vehicles on company business in the business auto coverage Broadening pollution liability in the business auto coverage to include pollution resulting

from cargo Endorsements Restricting coverage Adding absolute pollution exclusions to the CGL and commercial umbrellas Limiting employee dishonesty in a crime policy to scheduled individuals or scheduled positions Endorsements Change or add definitions

Adding medical payments to the business auto coverage adds exclusions and definitions that only apply to that coverage Adding an endorsement to the CGL to change the definition of employee to no longer include leased workers Endorsements Agency benefits Important to understand the use of endorsements and how they affect coverage Proper recommendation of endorsements to

enhance coverage adds value that can attract or retain customers Spotting use or lack of use of endorsements in an existing program can increase sales All staff should know about endorsements, know how they affect coverage, and be able to spot improper endorsements added to a policy in error to minimize exposure to E&O losses Importance of Punctuation Commas Most frequently used internal punctuation

More questions arise about the use of commas than about any other punctuation mark Trend has been toward lighter punctuation, resulting in fewer commas Treatment by the courts may not acknowledge or approve of this trend Importance of Punctuation Commas Most coverage litigation involves whether use or nonuse of a comma has created restrictive or

nonrestrictive elements Coverage on properties that have a concrete roof is subject to a $10,000 deductible. Interpretation: properties with a concrete roof are subject to a $10,000 deductible Coverage on properties, that have a concrete roof, is subject to a $10,000 deductible. Interpretation: properties are subject to a $10,000 deductible; that have a concrete roof is nonrestrictive or nonessential to coverage Importance of Punctuation

Commas Real example from the 2004 hurricane season in Florida Purpose: to remove coverage for wind-driven rain without structural damage HURRICANE COVERGE: Coverage under this policy includes loss or damage caused by the peril of windstorm during a hurricane. It includes damage to a buildings interior or property inside a building, caused directly by rain, snow, sleet, hail, sand or dust if direct force of the windstorm first damages the building causing an opening through which the above enters and causes damage.

Importance of Punctuation Commas Real example from the 2004 hurricane season in Florida Legal challenge resulted in claim denials being rescinded as a result of the lack of a comma after sand or dust Literally read, the policy covers damage to the buildings interior or property inside the building caused by all of the perils listed with the exception of sand or dust unless there is direct damage to

the building first Importance of Punctuation Commas Real example from the 2004 hurricane season in Florida Adding a comma after sand or dust changes the meaning Now the entire list of perils is limited HURRICANE COVERGE: Coverage under this policy includes loss or damage caused by the peril of windstorm during a hurricane. It includes damage to a buildings interior or property

inside a building, caused directly by rain, snow, sleet, hail, sand or dust, if direct force of the windstorm first damages the building causing an opening through which the above enters and causes damage. Importance of Punctuation Other punctuation marks Semicolon Separates two independent clauses Separates phrases in a series that contain commas May be appropriate instead of a period if the

independent clauses have a close connection This insurance does not apply to any claim arising out of any dishonest act by any insured; however, this exclusion does not apply unless an adjudication adverse to the insured establishes deliberate dishonesty. E&O RISK MANAGEMENT: MEETING THE CHALLENGE OF CHANGE Agency Defenses Documentation Chapter 4 Copyright 2012, Big I Advantage, Inc., and Swiss Re Corporate Solutions. All rights reserved. (Ed. 10/09-2)

INTRODUCTION Documentation combined with invariable agency procedures/practices are key defenses If an E&O claim occurred in your agency today, would it be prepared to defend itself? Do you have the proper policies and procedures in place to insure that your E&O carrier could mount a compelling defense? Agency Defenses--Documentation Copyright 2012, Big I Advantage, Inc., and Swiss Re Corporate Solutions. All rights reserved. (Ed. 10/09-2)

INTEGRATION OF MULTIPLE AGENCY SYSTEMS Agency management information systems (or AMIS)

Document management software Email systems such as Outlook Websites, social media, and instant messaging Phone systems Voicemail-to-text software Carrier underwriting and policy issuance systems Agency Defenses--Documentation Copyright 2012, Big I Advantage, Inc., and Swiss Re Corporate Solutions. All rights reserved. (Ed. 10/09-2) HE SAID VS. SHE SAID E&O claims or potential claims can often come down to

he said, she said scenarios involving a lack of coverage or insufficient limits. Documentation of transactions and interactions with customers is the most important factor in defense. Documentation must also be tied to invariable internal procedures and practices to bolster your claims defense Agency Defenses--Documentation Copyright 2012, Big I Advantage, Inc., and Swiss Re Corporate Solutions. All rights reserved. (Ed. 10/09-2) IMPORTANCE OF INVARIABLE PRACTICE

Documentation can only verify what ACTUALLY took place. How do you defend against allegations of failing to follow through on a request when you have no record of any contact between the agency and the other party? When the agency needs to prove that it didnt do something or the request was never received, that is when consistent business procedures provide a defense. Everyone doing it the same way, all the time, for everyone. Agency Defenses--Documentation Copyright 2012, Big I Advantage, Inc., and Swiss Re Corporate Solutions. All rights reserved. (Ed. 10/09-2)

LINES OF DEFENSE Documentation Invariable Practices Use of Disclaimers Written Follow-ups

E&O Coverage Checklists Agency Defenses--Documentation Copyright 2012, Big I Advantage, Inc., and Swiss Re Corporate Solutions. All rights reserved. (Ed. 10/09-2) LET THE FILE TELL THE STORY It is not just the quantity of the documentation that is important, but also its quality The sufficiency of documentation is revealed at the point it is retrieved, not when it is created.

Documentation can represent the difference providing a defense against the allegation(s) and the need to settle Agency Defenses--Documentation Copyright 2012, Big I Advantage, Inc., and Swiss Re Corporate Solutions. All rights reserved. (Ed. 10/09-2) WHAT MAKES DOCUMENTATION COMPLETE? Agency Defenses--Documentation Copyright 2012, Big I Advantage, Inc., and Swiss Re Corporate Solutions. All rights reserved. (Ed. 10/09-2) CHANGING COMMUNICATIONS METHODS

Communication methods have changed. With more ways to communicate it is easy for certain correspondence and conversations to miss finding their way into the customers file. More relaxed correspondence with certain communication media. Professionalism must be maintained with all communication documented and clear to all parties. Agency Defenses--Documentation Copyright 2012, Big I Advantage, Inc., and Swiss Re Corporate Solutions. All rights reserved. (Ed. 10/09-2)

What types of communications should be in the customer file? In-person Discussions Phone Calls (landline and mobile) Emails Instant Messages Live Chats Faxes (traditional and electronic)

Text Messages Websites Social Media Voice Media Agency Defenses--Documentation Copyright 2012, Big I Advantage, Inc., and Swiss Re Corporate Solutions. All rights reserved. (Ed. 10/09-2)

CHARACTERISTICS OF PROPER DOCUMENTATION Documentation should be clear, concise, consistent; include what was done or discussed with specific dates and times. Dont use random abbreviations or jargon that could be misunderstood. Documentation should include unalterable date/time stamp (Note: this is only possible in an automated environment). Be able to recreate the transaction step-by-step. Agency Defenses--Documentation

Copyright 2012, Big I Advantage, Inc., and Swiss Re Corporate Solutions. All rights reserved. (Ed. 10/09-2) CHARACTERISTICS OF PROPER DOCUMENTATION All staff should use the same system and procedures in documenting customer files. Daily activity logs, copies of change orders, premium adjustments, premium audits, applications, renewal applications, declaration pages, and access to all policy forms should be in the file or easily accessible using a carrier website

Agency Defenses--Documentation Copyright 2012, Big I Advantage, Inc., and Swiss Re Corporate Solutions. All rights reserved. (Ed. 10/09-2) THINGS TO AVOID Comments about a claim, its merits, or your opinion as to whether or not there is coverage Resist the urge to go to bat in writing for your customer when a claim is denied Just the facts - personal asides and comments should not be included Do not put E&O claim information into the file of the customer involved

Agency Defenses--Documentation Copyright 2012, Big I Advantage, Inc., and Swiss Re Corporate Solutions. All rights reserved. (Ed. 10/09-2) Key Elements of the Customer File The ultimate goal of documentation would be to have every point of contact with a prospect, customer, carrier or outside third party documented However, its more important to document some things than it is others. New business: coverage and exclusion discussions Renewals: coverage and exclusion discussions

Limits and values E&O coverage checklist Claims Endorsements and Cancellations Agency Defenses--Documentation Copyright 2012, Big I Advantage, Inc., and Swiss Re Corporate Solutions. All rights reserved. (Ed. 10/09-2) CARRIER CLAIMS AGAINST AGENTS Keep in mind that the frequency of claims involving carriers against agents is increasing, so it is important to document all carrier correspondence and conversations.

Agency Defenses--Documentation Copyright 2012, Big I Advantage, Inc., and Swiss Re Corporate Solutions. All rights reserved. (Ed. 10/09-2) DOCUMENTATION AND YOUR DEDUCTIBLE Good documentation protects the agency and can potentially save the agency money at the time of a claim! If your agencys E&O coverage is with Swiss Re Corporate Solutions and the agency has implemented sound documentation procedures for the offer and rejection of coverage there is an opportunity to save

thousands of dollars under Swiss Re Corporation Solutions Deductible Reduction feature. Agency Defenses--Documentation Copyright 2012, Big I Advantage, Inc., and Swiss Re Corporate Solutions. All rights reserved. (Ed. 10/09-2) ELECTRONIC VS. PAPER FILES Use only one file storage method and all transactions pertaining to a customer should be located in that file. Electronic files provide a stronger and more credible defense than paper files since as data is created, edited and expanded upon, the automation system records the date and time of these changes.

Paper files have the disadvantage, when used as a form of defense, in potentially lacking creditable proof as to the exact time and date that the documentation was created Agency Defenses--Documentation Copyright 2012, Big I Advantage, Inc., and Swiss Re Corporate Solutions. All rights reserved. (Ed. 10/09-2) ELECTRONIC VS. PAPER FILES Documentation is only effective if the information in the files can be considered accurate Any possibility that the information can be found suspect will diminish or eliminate the protection that

documentation provides the agency There needs to be only one source of customer information. Today, that information is likely more effective when it is in electronic form. Agency Defenses--Documentation Copyright 2012, Big I Advantage, Inc., and Swiss Re Corporate Solutions. All rights reserved. (Ed. 10/09-2) SCANNING Scanning is just one part of total document management. Agencies may be slow to replace old procedures with

new scanning technology. This is a critical area and agencies struggle to eliminate paper, even though the tools to do so have existed for many years. Operations management is the key to successful implementation and oversight. Agency Defenses--Documentation Copyright 2012, Big I Advantage, Inc., and Swiss Re Corporate Solutions. All rights reserved. (Ed. 10/09-2) Admissibility of Electronic Files Courts have recognized the admissibility of electronic

records in court cases. Electronic records may be considered more credible because of the ability to determine when information was entered into the automation system. Computer generated correspondence has the date and time produced embedded in the system; therefore, alterations are not easily accomplished. Agency Defenses--Documentation Copyright 2012, Big I Advantage, Inc., and Swiss Re Corporate Solutions. All rights reserved. (Ed. 10/09-2) Admissibility of Electronic Files

Copies of original documents are no longer necessary as long as the agent can produce a hard copy of original documents Scanning has been become a viable method of retaining documents in an electronic version Information stored electronically presents a different set of challenges in securing personally protected information. Agency Defenses--Documentation Copyright 2012, Big I Advantage, Inc., and Swiss Re Corporate Solutions. All rights reserved. (Ed. 10/09-2)

ELECTRONIC SIGNATURES The Electronic Signatures in Global and National Commerce Act (ESIGN) was enacted and made electronic contracts and signatures legal and enforceable as paper contract with ink signatures. Important for agencies when it comes to signatures on applications, proposals, quotes, and policies. Agency Defenses--Documentation Copyright 2012, Big I Advantage, Inc., and Swiss Re Corporate Solutions. All rights reserved. (Ed. 10/09-2) DEFENSE METHOD - CHECKLISTS

Roadmap of products to offer customer. Document coverages offered, accepted, rejected or not applicable. Can help avoid claims from: Failure to procure the coverage requested Failing to recommend coverage Failing to identify exposures

Not adequately explaining policy provisions Agency Defenses--Documentation Copyright 2012, Big I Advantage, Inc., and Swiss Re Corporate Solutions. All rights reserved. (Ed. 10/09-2) Customer sign-off, Acknowledgement Forms, Written follow-up The defense of an E&O claims can be bolstered when the customer file includes customer acknowledgement that an exposure exists, coverage is offered, and the insured makes the decision not to transfer the risk through the purchase of an insurance product.

Customer acknowledgement can be documented by the agency through the use of customer sign-offs, coverage acknowledgement waiver forms, and written follow-up of discussions. Agency Defenses--Documentation Copyright 2012, Big I Advantage, Inc., and Swiss Re Corporate Solutions. All rights reserved. (Ed. 10/09-2) CUSTOMER PROPOSALS Insurance proposals can provide a wealth of defense documentation, including:

outlines coverages offered highlights coverage limitations any insured requirements E&O coverage checklist Customer sign-offs acknowledging what was discussed should be included It is also a good idea to have the customer initial each

page of the application and sign where required Agency Defenses--Documentation Copyright 2012, Big I Advantage, Inc., and Swiss Re Corporate Solutions. All rights reserved. (Ed. 10/09-2) PROPOSALS CARRIER SYSTEMS Many agencies may present proposals exactly as they are generated from carrier underwriting systems. These proposals may not include appropriate disclaimer information or an area for customer signoff. The agency may want to consider adding a supplemental page for both of these.

Agency Defenses--Documentation Copyright 2012, Big I Advantage, Inc., and Swiss Re Corporate Solutions. All rights reserved. (Ed. 10/09-2) WAIVER FORMS Some states require acknowledgement waivers to be signed for various coverages (i.e. UM/UIM, earthquake, flood) ACORD also offers some template forms. Carriers may specifically require waivers when certain coverages are rejected. Waivers are important for E&O defense; therefore, agencies need to determine when a waiver is

required. Agency Defenses--Documentation Copyright 2012, Big I Advantage, Inc., and Swiss Re Corporate Solutions. All rights reserved. (Ed. 10/09-2) SIGNED APPLICATIONS A carrier may not require a completed and signed application; however, a completed and signed application should be obtained from all insureds. Insurance policies are legal contracts and as such are subject to the common law rule of parole evidence. Once the policy has been issued the agreement

between the insured and the carrier is what is in the policy, not in any proposal or oral promise made before the policys issuance. Agency Defenses--Documentation Copyright 2012, Big I Advantage, Inc., and Swiss Re Corporate Solutions. All rights reserved. (Ed. 10/09-2) DISCLAIMERS Disclaimers aide in the defense of E&O claims and reinforce customer communications with clear guidance. Nearly all of communications media can include disclaimer language.

Voice Mail Websites Fax, Email, and Instant Message Sample Claims Reporting Social Media Proposals Agency Defenses--Documentation Copyright 2012, Big I Advantage, Inc., and Swiss Re Corporate Solutions. All rights reserved. (Ed. 10/09-2) DOCUMENTATION RETENTION CONSIDERATIONS

The documentation contained in the customer file that should be retained and for how long may be dictated by your states law. The agency should be familiar with these laws and your IIABA state association or insurance division can likely provide direction about existing laws and how they apply. Agencies should have a records retention policy. Agency Defenses--Documentation Copyright 2012, Big I Advantage, Inc., and Swiss Re Corporate Solutions. All rights reserved. (Ed. 10/09-2)

WHY DOCUMENTATION RETENTION? Customer information is the agencys largest asset. Retaining policyholder records allows the agency to continue to retain accounts and offer an increased level of service over the customers life cycle Agencies may not want to rely solely on their carriers to retain customer records since the record retention policies of carriers may not be in line with the goals of the agency. File documentation is rule number one when it comes to protecting against an E&O claim. When retaining files, be sure to include any correspondence regarding coverage decisions, waivers, signed applications, etc. Any retained dead file

should provide a story in the same manner as active files. Agency Defenses--Documentation Copyright 2012, Big I Advantage, Inc., and Swiss Re Corporate Solutions. All rights reserved. (Ed. 10/09-2) DOCUMENTATION RETENTION CONSIDERATIONS Different issues with paper and electronic files. Just because it is cheaper to keep electronic files forever, doesnt mean you should. Past files good vs. bad documentation. If the agency doesnt have personal information in files to protect exposure to data breaches is reduced.

Agency Defenses--Documentation Copyright 2012, Big I Advantage, Inc., and Swiss Re Corporate Solutions. All rights reserved. (Ed. 10/09-2) KEEPING POLICY FORMS? Some carriers have stopped providing paper policies or give the agency the option. Agencies may have to decide if they will rely on the electronic policy view to access the policies/endorsements from the carriers website or to retain policies in their office. Important to have at least one master policy form and

to retain dec pages referencing coverage and exclusions. Agency Defenses--Documentation Copyright 2012, Big I Advantage, Inc., and Swiss Re Corporate Solutions. All rights reserved. (Ed. 10/09-2) DISPOSAL OF CUSTOMER FILES Security of private information is an on-going issue The privacy of confidential information is important and security breaches may put the agency at risk of regulatory action or civil or criminal litigation Disposal of private information requires handling and agencies should have a process in place.

Agency Defenses--Documentation Copyright 2012, Big I Advantage, Inc., and Swiss Re Corporate Solutions. All rights reserved. (Ed. 10/09-2) Coordinating an Insurance Program CHAPTER 5 Chapter Objective Upon completion of this chapter, the student should understand and be able to explain how a program of insurance

should be coordinated and why it is important. Purpose and Importance Necessary and important to the agent and the insured Insurance is not first and foremost in the typical household or business May not understand the importance and need Dont take time to do in-depth analysis of exposures

Purpose and Importance Agents can fall into the order-taker role Using a detailed analysis approach makes the agent more valuable Valuable agents rarely lose business solely on price Insured is educated about the true exposures faced; never recognized without their agent Being involved builds a strong relationship that helps attract and retain customers Purpose and Importance

Impact on agent E&O exposure Helps with documentation of Exposures Recommendations Insured choices Educated consumers have greater satisfaction at time of claim Claim denials can be positive experiences when customers understand what their policies do and do not cover

Proper Analysis Using Risk Management Approach Common sense approach Identifies losses that could be suffered other than those attributable to business operations Attempts to effectively handle risk at the lowest possible cost Works for both personal and commercial customers Proper Analysis Using Risk Management

Approach Risk management steps Identify risks Analyze risks Select the best methods for handling risks Implement the chosen alternatives Monitor the results Constant process Proper Analysis Using Risk Management Approach Risk identification

Most important step Unidentified risks are not contemplated in a program Careful review of a person or organizations operations and assets Identified risks are analyzed to determine the magnitude of losses that may occur Tools such as questionnaires and checklists are available Proper Analysis Using Risk Management Approach

Risk management techniques Various techniques to manage risk Avoidance Loss control Retention Contractual risk transfer

Insurance transfer Proper Analysis Using Risk Management Approach Risk management techniques Risk avoidance Not engaging in operations or activities that may lead to unacceptable losses Contractor not engaging in pollution cleanup Discontinue production of certain drugs because of possible litigation from side effects Not renting Jet Skis on vacation

Proper Analysis Using Risk Management Approach Risk management techniques Risk control Reducing potential for loss and/or the effects of those that do occur Providing protective eyeglasses for manufacturing employees Installing sprinkler systems in buildings Fortifying homes to reduce exposure to loss from wind damage

Adding waterproof barriers to roof to minimize water damage Proper Analysis Using Risk Management Approach Risk management techniques Risk retention Paying for all or part of a loss from income rather than transferring the risk Larger deductibles Retrospective rating plans Not buying insurance at all

Three retention rules Do not risk a great deal of loss for small premium savings Do consider the odds of a loss occurring Do not risk more than your family or business can afford to lose Proper Analysis Using Risk Management Approach Risk management techniques Contractual risk transfer Involves passing risk to others via hold harmless or

indemnity agreements Requires one party to hold the other party harmless for losses to a member of the public Lease requires the tenant to be responsible for injury to the public Requirement to be added as additional insured on the other organizations policy Contracts should be reviewed Determine what risks the other party is attempting to pass on to your insured Determine if they can transfer some risk to the other party

Proper Analysis Using Risk Management Approach Risk management techniques Insurance Insurance is the last resort method for risk managers Insurance company finances the losses Erratic, unbudgetable losses are traded for budgetable insurance premiums Over time, the insurer will be reimbursed for most of the losses passed on to them

70 to 75 percent of insurance premiums are used to pay losses Proper Analysis Using Risk Management Approach Risk management techniques Monitor the results Changes affect appropriateness of past decisions Family or organization changes Insurance marketplace changes Society changes

Program should be fine-tuned, and the process starts over from the beginning Proper Analysis Using Risk Management Approach Use of exposure survey questionnaires and checklists Preinterview questionnaire Separate sections ensure more efficient and productive interviews If information is already on an application, it can be quickly filled in

Questionnaire should be sent to the insured for completion prior to the interview Proper Analysis Using Risk Management Approach Use of exposure survey questionnaires and checklists Exposure survey questionnaire Divided into categories (sample individual)

Background information Real property exposuresland and buildings Personal property exposures Business/professional exposures Automobile exposures Watercraft exposures

Aircraft exposures Community/political activities Proper Analysis Using Risk Management Approach Use of exposure survey questionnaires and checklists Exposure survey questionnaire Divided into categories (sample individual)

Other liability exposures Overall program considerations Workers compensation exposures Health insurance Medicare

Disability insurance Long-term care Financial/Life insurance Estate Proper Analysis Using Risk Management Approach Use of exposure survey questionnaires and checklists Exposure survey questionnaire Can be completed during the interview or completed by the insured at home

Use of segmented questions No answers eliminate remaining subparts Impossible to anticipate every type of exposure Agent must take the initiative to go beyond the questions presented Proper Analysis Using Risk Management Approach Use of exposure survey questionnaires and checklists Survey explanations/recommendations

Provides explanations Provides recommended options to handle exposures Format correlates with the preinterview questionnaire and the exposure survey Proper Analysis Using Risk Management Approach Use of exposure survey questionnaires and checklists Checklists Available for a host of personal and commercial

coverages Review existing coverages Compare renewal coverages Outline important features of current or proposed programs Document coverage recommendations and decisions Proper Analysis Using Risk Management Approach Use of exposure survey questionnaires and checklists Checklists

Not all-inclusive Designed to call attention to important features and options Does not address unique exposures Should not be solely relied on Thorough investigation of needs and exposures is critical Proper Analysis Using Risk Management Approach Use of exposure survey questionnaires and checklists Checklists

Keep the following in mind Is any form of coverage currently in effect for this exposure? If this coverage is not provided, should it be? Was coverage previously contemplated but not purchased? If so, why? Does that reason (e.g., not available, too costly) still exist? If coverage is provided, should it be modified or dropped? What loss exposures are currently uninsured or underinsured? Identifying and Addressing Coverage Gaps

Typical insured needs more than one policy Tips to assist in properly coordinating various exposures and policies The named insured including spouse, along with any trusts or similar interests, should be specifically and consistently conamed in all of the personal insurance policies. The same holds true on the commercial side, making sure all entities that need coverage are properly named. Consistency is necessary for all insurance policies covering these parties. This approach helps to eliminate coverage gaps. If a limited liability corporation owns property for which the insured has a financial interest, the insured should work with a skilled attorney experienced in business organizations on this matter.

Identifying and Addressing Coverage Gaps Tips to assist in properly coordinating various exposures and policies Selecting the proper umbrella policy is important since these policies may cover important gaps in the underlying coverage. It is highly recommended that the same insurer provide the underlying coverage and the excess coverageagain to reduce any gaps and to avoid bickering between two separate

insurers in the event of a major liability loss. Identifying and Addressing Coverage Gaps Tips to assist in properly coordinating various exposures and policies Insureds should retain proposals for insurance that outline exposures and recommended coverage. These proposals should be kept for at least 3 years. Some state laws or E&O insurer recommendations may require longer periods. If changes are made to these

proposals or reviews, the insured should receive the updates. Identifying and Addressing Coverage Gaps Tips to assist in properly coordinating various exposures and policies Insureds should indefinitely keep old copies of insurance policies, particularly those with liability coverages. The insured should scan these documents and retain them electronically with backups stored at a

different location. Identifying and Addressing Coverage Gaps Tips to assist in properly coordinating various exposures and policies Insurance agents should provide an annual review of coverage afforded or areas that may be uninsured or underinsured, particularly for wealthier clients or more complex businesses with myriad loss exposures. As changes are discussed and implemented, the agent should

provide the insured a revised review. Identifying and Addressing Coverage Gaps Tips to assist in properly coordinating various exposures and policies Agents should regularly provide loss control and contractual risk transfer recommendations to their clients. This process should also be part of the annual review of coverage for new exposures. Various other risk management techniques, as necessary, should be explained

to the insured as well. Identifying and Addressing Coverage Gaps Tips to assist in properly coordinating various exposures and policies Insurance agents should explain the suability factor to their clients. The suability of a person is determined by the size of his or her savings account and stock portfolio, the size of his or her real estate holdings, the profile in the community, current family income, and potential income in the future. Agents and brokers

should recommend a personal umbrella policy for their clients with moderate suability factors ($1 million limits) and high suability factors ($2 million to $5 million limits). Identifying and Addressing Coverage Gaps Tips to assist in properly coordinating various exposures and policies Agents should advise their insureds to be wary of purchasing some of their coverage (e.g., personal auto policy) from the Internet and the rest through a traditional agent. The insured may unknowingly

procure auto liability limits (or boat or motorcycle liability limits) well below the minimum limits required by their umbrella policy. Gaps of $100,000 or beyond are not uncommon in these scenarios. Identifying and Addressing Coverage Gaps Tips to assist in properly coordinating various exposures and policies Forward-thinking agents need to evolve into risk managers due to growing complexity of loss exposures

Value-added activities pay big dividends in the form of client satisfaction and retention Addressing Overlaps and Conflicts Use of one company to write multiple policies for the same insured Avoids conflicts in coverage that can occur Example: auto and CGL coordination Example: umbrella/excess and underlying coverage Use of ISO forms and proprietary forms can

create coverage gaps Analysis is important with proprietary forms Addressing Overlaps and Conflicts Use of one company to write multiple policies for the same insured Umbrella, inland marine, other coverages have no standard forms Analysis is extremely important in these situations to avoid gaps and overlaps Immediately begin looking for ways to

eliminate overlap or gaps If no coverage is available to fill the gap, make the insured aware right away Recommendations Once process is complete and ready for meeting with customer, recommendations should be written Detailed proposal to the customer that includes the risk analysis; exposures uncovered Recommendations should include options

so the customer can make a decision on how to treat exposures Recommendations Customer should be aware of insurance and other other exposure treatment options Insurance is a great risk-transfer method but not always the best Deductible options in case the customer is more risk-tolerant

Document choices and decisions made by the customer Recommendations Document choices and decisions made by the customer Document, document, document Choices are memorialized on a copy of the proposal/recommendations Insured should initial coverage selections and rejections and sign at the bottom Keep a copy in the file (folder or electronic)

Send a follow-up letter with a copy for their records thanking them for their business

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