This may sound like a basic question, but don’t think for a second that everyone in your agency knows exactly what an E&O claim is. In many instances, some of the agency’s less experienced staff may not have had the benefit of someone educating them on this important issue.
Face it, there is a good chance that virtually everyone in the agency has made a mistake in their insurance career. The mistakes can vary from not providing the coverage your client requested to providing your client with totally incorrect information on how a certain coverage would respond, in the event of a claim. While perfection may be your goal, with the pace that agency staff must perform, reaching that goal is probably easier said than done.
So, should every “mistake” be considered an E&O claim? No. There is a common analogy that for a mistake to develop into an E&O claim, the “planets need to align.” Therefore, when the client asks for collision on their vehicle, and you discover that you only provided comprehensive, that by itself would not be an E&O claim. You simply would have the policy endorsed to include collision coverage. But when the client suffers a loss because of the error you committed, these are the situations that have the potential to become an E&O claim. The bottom line is your mistake caused the client to suffer an uninsured loss.
There is also the possibility that the client suffers an uninsured (or not fully insured) loss, yet the agency technically did not make a mistake. For example, the client puts an addition on their house that would increase the value of the home, but they fail to advise you, as their agent, of this exposure change. The home sustains a loss, but the settlement is less than what the client believes is correct. The client could bring a suit against the agency alleging an error. So, as is commonly known in the insurance world, “you don’t have to do anything wrong to be sued.”
Every E&O policy defines what a claim is. Typically, it is defined as, “a written demand or written notice, including service of a subpoena, suit or demand for arbitration, received by one or more insureds which alleges a wrongful act or asks for money or services.”
A very significant issue here is that since “you don’t have to do anything wrong to get sued,” the agency must be diligent in not admitting any degree of liability. Even if the agency technically did make a mistake, it is still critical that the agency not make an admission of guilt. If the agency were to do so, there are potentially some very serious implications. E&O policies typically include language in the conditions section of the policy that state, “no insured will, except at that insured’s own cost, voluntarily make a payment, assume any obligation or incur any expense without our (the E&O carrier) consent.” This section dealing with the admission of liability has the potential to result in the E&O carrier denying the claim and consequently leaving your agency fully responsible for the legal costs and damages. This is not an issue you want to face. It is highly suggested that agency management mention and continuously reinforce the importance of not admitting liability.
Basically, this is because E&O policies are based on the premise of “legal liability.” In other words, just because the agency made a mistake and the client suffers a loss does not automatically make the agency legally liable. There are a host of defenses that the agency could raise that could minimize or even eliminate any agency liability. In addition, clients have a standard of care they are expected to honor. One of the more prevalent ones involves the client’s duty to read their policy. If the client would have seen they didn’t have any collision but did not contact the agency, this could change the direction of a potential E&O claim.
Educating the staff on “what exactly is an E&O claim” would be a positive step in the right direction.
The material contained in this article is for informational purposes only and is not for purposes of providing legal advice.You should contact your attorney to obtain advice with respect to any particular issue or problem.