Your have the right to remain silent and to be

suedPresented by:

Joni R. Fairbrother, CIC, RPLUIndependent Ins. Agents & Brokers of Arizona

THE E&O DEPARTMENT

One hour we are going to talk about some issues regarding E&O

I am not here to give you more work

I am not here to make your life miserable

FIRST RULE – sell more insurance, BUT do it safely so that you can avoid an E&O claim

WHAT TO EXPECT

You have the 5th amendment to remain silent.

The burden of proof is on the prosecution to prove the case “beyond a reasonable doubt”.

In the criminal court…

The plaintiff (person bringing the lawsuit) must only prove a “preponderance of evidence”

The plaintiff’s story must be more believable than the defense story

The defense does NOT have a right to remain silent. The defense must prove their case.

In a civil court

Documentation is not just important – it is critical.

Without documentation, most likely the outcome will be a “liars contest”

That means your file can’t be silent either

Many, many times – a well documented file will stop an E&O claim before it begins

If a claim proceeds, the E&O insurance company will be able to defend you much better.

Documentation

You don’t have to have failed in your professional obligations to your client to be a victim of an E&O claim.

Can you prove you didn’t do anything wrong?

Documentation can help you prove it.

“But I didn’t do anything wrong!”

I work alone – I know what I did and didn’t do on a file……

I am really busy – I don’t have time…..

I don't need to document this file . . . This is a friend of mine… I play golf with him every week

The Excuse File

I shouldn’t have to document this file . . . they are family!

I don't need to document with him - after all I saved him from losing his business.

  I don't need to document with them - THEY

GO TO MY CHURCH

The Excuse File

I don't need to document with them - they are family / close friends

  I don't need to document with them - they

are as honest as the day is long.   I don't need to document with them - they

are not the type of people who would sue  

The Excuse File

I don't need to document with them - after all they KNOW what they have and don't have.

  I don't need to document with them - he was

my college roommate

I don't need to document with him - his memory is excellent.

  

The Excuse File

   I don't need to document the file - I

remember everything - and I mean EVERYTHING so I will be able to describe what happened.

The Excuse file

My number one rule when teaching E&O Loss Control is SELL MORE INSURANCE.

Documentation should be:◦ Simple to do (don’t make it complicated and long)◦ Consistent ( not some of the time – all of the time)◦ Enough information to tell the story

A way to document and sell more

If you use a coverage checklist when talking to customers (especially new customers), you can systematically ask questions and document at the same time.

Sample in hand-out

Another method that is REALLY good for commercial risks:

Using checklists will help

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Transform your agency with:

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What is the Big “I” Virtual Risk Consultant?

The VRC is a web-based resource exclusively available to Big “I” members that will improve the knowledge and professionalism of agency staff by providing tools that will allow them to better understand the coverage needs of clients, assist them in meeting those needs, while offering valuable file documentation should an E&O claim arise

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Better Understand Your Customer and Increase Sales

Understand the Risk: Narrative overviews of operations, exposures, coverage recommendations for than 650 business classes, including SIC, GL and WC codes

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Better Understand Your Customer and Increase Sales

Exposure Identification Survey: Custom risk specific questionnaires designed to gather information to ACORD applications, identifying coverage gaps and exposures.

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Better Understand Your Customer and Increase Sales

Proposal Assistant: Access to ACORD forms, PF&M (detailed commercial, personal, & specialty coverage analysis of ISO & AAIS forms and endorsements), and a glossary of insurance definitions. and glossary of insurance definitions.

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Better Understand Your Customer and Increase Sales

E&O Coverage Checklist / File Documentation: Printable E&O coverage checklist with client signature to document coverage offered and rejected by the customer.

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Customer Communication Content Made Easy! Business Building Letters: Over 330

professionally written correspondence pieces to customize and save in your own letter library for on-going prospecting, account development, service/claims, relationship building, and service surveys.

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Customer Communication Content Made Easy! E-marketing for Agencies: Inform and

educate customers with professionally written articles for your website and newsletter, along with easy to understand answers to consumer questions. (Just this makes VRS worth its weight in gold)

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How much does the VRS cost?

Agency Size: Annual Subscription Cost:

Four-year Subscription Cost:

1 to 15 Agency Users

$250 **$750**

More than 15 Agency Users

$500 **$1500**

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How do I purchase? IIABA members can visit www.iiaba.net/VRC

to access and purchase VRC using your Big “I” login and password.

Brochures on table

Let your file speak VERY loud in YOUR defense.

Document to allow your file tell the story of what happened.

With documentation it may not be a slam dunk in getting rid of the E&O claim but it gives the E&O carrier something to fight about

Bottom Line

Without documentation – we have a liars contest that are difficult to impossible to defend.

Be consistent within the agency about the documentation. If one person documents everything and the next staff person documents little, it will look like you are hiding information.

Bottom Line

Date (most agency management systems will automatically do this for you)

Who you spoke with

Be sure you are identifying yourself

High-lights of what was said – don’t transcribe the conversation (both caller & you)

Tips on documenting PHONE CALLS

Text message some details to your e-mail

Call someone in your office to document file

Note to yourself

Taking calls out of office

Notes you take at the meeting – scan and show in activities. No need to make it pretty as long as you can understand it.

Tips on documenting MEETINGS

Don’t just leave e-mails in the “in-box” / “sent file”. Must be put with the file (paper or electronic) so that all correspondence are in the “file”.

Text messages need to be attached as well.

Tips on documenting E-MAILS – TEXT MESSAGING

If you use a coverage checklist you will have the documentation that you talked about options. (AND hopefully you will be able to better cross sell / expand coverages sold)

Keep quotes of coverage options

Tips on documenting Coverage options/quotes

E-mail a short confirmation of conversation.

You will have written documentation of what you just did

You will put your customer at ease that you are “on top of it”

Good habit to develop

Better communication

Many times stop an E&O claim before it starts

Help you to get up to speed on a client quickly

Allows multiple people on your staff to handle customers and STILL have consistency

Documentation will ……

Come from a lack of one of two things..◦ Failure to document files◦ Failure to communicate effectively

Many of our E&O claims….

Those nasty E&O claims

If you find yourself…….

An attorney calls your office staff to ask about information from the customer file.

ASK TO HAVE QUESTIONS IN WRITING

An attorney asks for copies of correspondence, copy of the application, etc.

Polite, professional “no” – questions/requests in writing

If you have a POSSIBLE E&O claim

Someone asks you for a recorded statement Polite, professional “no” – questions/requests

in writing

In a court room for a civil case – you don’t have a right to remain silent – BUT DO SO until someone can help you

If you have a POSSIBLE E&O claim

Get your E&O carrier to help you answer.

DO NOT carry on conversations and freely supply third parties with information from your file.

When you receive a demand or request of information

DON’T admit liability – to the insured or the insured’s insurance company

Be empathetic, but watch what you say

Don’t discuss your E&O coverage with anyone, and don’t provide copies

Don’t offer to pay the claim yourself.

NOTIFY your E&O carrier

Caveats

Stress Time lost

◦ Preparing loss notice◦ Producing documents◦ Completing interrogatories◦ Meeting with attorneys◦ Practice deposition◦ Giving depositions◦ Sitting in on witness depositions◦ Going to trial or participating in settlement conferences

What to Expect with E&O Claim

The Big I stands ready to help you with your E&O needs.

Call us

We want to help you avoid an E&O Claim

Benefits of membership in the Independent Insurance Agents & Brokers of Arizona

Information on table …

I appreciate the opportunity to talk about a passion of mine in preventing E&O claims and helping insurance agents to be more successful.

Thank you for inviting me!