MAY 2016 | MARYLAND

7 INDUSTRY TRENDS TO WATCH

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STRICT PRODUCTS LIABILITY

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16MMG184_OwnersProtect_PAM_8.5x11_v2.indd 1 3/10/16 10:51 AM

Periodical postage paid at Mechanicsburg, Pa. and at additional mailing offices. Postmaster: Send address changes to Insurance Agents & Brokers, 5050 Ritter Road, Mechanicsburg, PA 17055.

Primary Agent (ISSN 1543-3110), Permit # 638-620, Issue # 2016-5, is published monthly by IA&B Service Group Inc., a subsidiary of IA&B.

Copyright 2016. All rights reserved. No material may be reproduced in whole or in part without written consent of the publisher. The information in this publication is general in nature and not intended to serve as legal, accounting, financial, insurance, investment advisory or other professional advice as to any reader’s particular situation. Users are encouraged to consult with competent legal, financial, insurance, investment advisory and/or other professional advisors concerning specific matters before making any decisions. We disclaim any responsibility for any decisions or actions by readers. Statements of fact and opinion in Primary Agent are the responsibility of the authors alone and do not imply an opinion on the part of the officers or the members of IA&B. Participation in IA&B events, activities and/or publications is available on a non-discriminatory basis and does not reflect IA&B endorsement of the products and/or services.

12

ON THE COVER12 DOCUMENTATION DOS AND DON’TS

Even if you do everything right, insureds will occasionally find themselves without coverage for a particular loss. If that snowballs into an E&O claim or lawsuit, documentation is often critical to a successful defense.

ALSO20 REPLACEMENT OF COVERAGE

Moving an account to a new carrier may be a common occurrence, but unfortunately so are the lawsuits following replacement of coverage.

26 7 INDUSTRY TRENDS TO WATCH An Agents Council for Technology work group identified seven “hard trends” that are ushering in cultural and societal change — and are poised to impact our industry.

IN EVERY ISSUE2 Chairman of the Board’s Message3 Ask Our Experts4 Coverage Corner6 State News8, 10 Platinum Profile9 IA&B Partners26 HR HeadquartersIBC Advertiser’s IndexIBC My EventsIBC Classified Ads

IN THIS

1

INSURANCE AGENTS & BROKERS

5050 Ritter Road | Mechanicsburg, PA 17055 800-998-9644 | IABforME.com

OFFICERS

Chair of the Board Robert S. Klinger, LUTCF, CPIA

Vice Chair of the Board Michael F. McGroarty Sr.

Immediate Past Chair of the Board Diana M. Hornung Hanby, ACSR

MEMBERS

E. Stephen Burnett, CIC, ARM Wilmington, Del.

Richard F. Corroon, CPCU Wilmington, Del.

N. Lee Dotson, CIC, AAI Wilmington, Del.

Michael P. Ertel+ Columbia, Md.

Bryan C. Hanes, JD Hagerstown, Md.

John B. Hollister Milford, Pa.

Jocelyn R. Howard-Sinopoli, CIC, CISR Butler, Pa.

David C. King Lancaster, Pa.

Douglas A. Loesel, CPCU Erie, Pa.

Crag S. Mader Gambrills, Md.

Ann Gallen Moll, CIC Reading, Pa.

Mark J. Monroe West Chester, Pa.

Joseph R. Pastor, CPCU, AAI Oil City, Pa.

Richard M. Rankin, CIC Lancaster, Pa.

April E. Ressler, CIC Altoona, Pa.

Scott C. Rogers, CPIA* York, Pa.

Glenn R. Strachan Ft. Washington, Md.

Lawrence A. Wilson, CIC, CPIA, CPCU, ARM** New Castle, Del.

J. Marshall Wolff, CIC, CPCU Easton, Pa.

* Pa. IIABA National Director** Del. IIABA National Director

+ Md. PIA National Director

CHAIRMAN OF THE BOARD’S MESSAGE

A LOOK AT AGENTS’ E&O

As independent agents, we are – by our very nature – autonomous and unique. In fact, we pride ourselves on it. Yet there are a few core

principles that we all believe in: fighting the commoditization of insurance, asserting our collective value proposition, etc.

So certainly you can understand my chagrin when I hear agents discussing their agency’s insurance and sounding an awful lot like those insureds who take full advantage of market conditions and switch carriers to save a few dollars….

The May Primary Agent is dedicated to E&O prevention, so I would be remiss if I didn’t remind you about the benefits of working (and staying) with the IA&B Sales Center. Their team of independent agents works with leading carriers and focuses solely on independent agencies’ insurance needs. Plus their customers have the backing of an entire agents’ association. That means loss prevention and even involvement in E&O litigation.

Speaking of loss prevention … back to the issue (pun intended) at hand. On page 12 you’ll find documentation advice and on page 20 tips for replacement of coverage. There are some great pointers here, so be sure to pass this issue around the office. And if you have any questions about what you read here or about your coverage, don’t hesitate to call the IA&B team. n

Robert S. Klinger, LUTCF, CPIA Chairman of the Board

Best,

Editor’s note: To learn more about or contact the IA&B Sales Center, please visit IABforME.com/MyAgency.

2 MAY 20162

Question:How do I secure a non-resident license in another state?

Answer:Before answering this question,

bear in mind that the passage of NARAB II by Congress in 2015 is expected to streamline the licensing procedures across the nation and reduce or eliminate many of the remaining issues mentioned below. There has been some delay in the nomination of the NARAB Board, but we’re hopeful that its eventual launch will help agents across the country.

Until then, the answer to the question really depends on the state for which you are seeking a license. While some uniformity was obtained through the enactment of new producer licensing laws in the aftermath of the Gramm-Leach-Bliley Act, some discrepancies still exist. So if you want a license, here are some tips:

Let’s say you are located in Maryland and you need a non-resident license in Michigan. There are several points to consider:

Exemption: If you are trying to get a non-resident license because one of your commercial clients is expanding in another state, first check for the applicability of the non-resident commercial multi-state exposure exemption: If you are going to insure the Michigan property on the existing Maryland policy, you may not need a non-resident license.

The need for a license depends on the state, on the type of policy and on how the out-of-state risk is covered.

Rules: If the exemption is not applicable in your case, go to the National Insurance Producer Registry’s (NIPR) website at www.nipr.com. The site provides a “state matrix of business rules” with a checklist of what is needed in that state to apply for an individual and/or a business entity license.

Remember that you need to license every individual producer who will sell, solicit or negotiate in that state (that includes all technical discussions with the customers), plus the agency if the state requires the agency to be licensed as a business entity (most do at this time).

Registration: As indicated above, some discrepancies exist between the states, and these discrepancies have often been exacerbated by the Departments of State creating additional burdens for producers. The difficulties stem from the business entity license usually required by the Department of Insurance of the non-resident state. Often, the issuance of a business entity license is conditioned upon registration of the business with the Department of State. In order to register, the Secretary of State will require a “registered agent” in the non-resident state, meaning an address in that state.

Most agents do not have an address to provide and need to enroll the services of companies specializing in such services, a.k.a. a registered agent. You guessed it: Everybody charges a fee along the way, and the non-resident license becomes a more expensive proposition. Not all states have those requirements, but it is important that you be aware of them so that you may be proactive and not see your license application delayed by discovering these procedures as you go.

For more information on the commercial multi-state exposure exemption, the general process of securing a non-resident license, or NARAB II, log on to IABforME.com and type “securing a non-resident license” in the search box, or contact us as needed. n

Ask Our ExpertsThis month’s answer was provided by Claire Pantaloni, CIC, CISR, our industry affairs director. Hear more from Claire in our new on-demand seminar, “HR Pitfalls for Independent Agencies.”

Have a question? Ask our experts!Rely on our experts to answer your most perplexing questions. Visit the Ask Our Experts section of IABforME.com (find the link in the website footer) to submit your question and review answers to other frequently asked questions. Or email your question to us at IAB@IABforME.com. We look forward to hearing from you.

3

COVERAGE CORNER

PRODUCTS LIABILITY: STRICT LIABILITY OR COMPARATIVE NEGLIGENCE?By Jerry M. Milton, CIC

T he American Law Institute (ALI) publishes restatements of law in

many areas, including torts, in order to “clarify, modernize and improve the law.” While courts are not bound by the ALI’s restatements, they frequently give great weight to them. Even though the most recent restatement on products liability (Restatement of the Law, Third) was published in 1998, many courts still cite the Restatement of the Law, Second, which was published in 1965.

What is the significance of Reinstatement Second versus Reinstatement Third? Reinstatement Second applies a strict

liability standard in products liability cases (the seller is liable for any and all defective or hazardous products), whereas Reinstatement Third considers traditional negligence concepts such as foreseeable risk and reasonable care. Under Reinstatement Third, issues such as product misuse, alteration or modification can create a defense for the defendant (seller) and reduce the claim for the plaintiff (consumer).

In determining if the seller is at fault, the Restatement Third has three categories of product defects and legal standards for each.

1. Manufacturing defects: The product is not made according to its intended design.

2. Design defects: A reasonable alternative design could have reduced or avoided foreseeable risks of harm, and the product is not safe because of the failure to use the alternative design.

3. Inadequate instructions or warnings: The foreseeable risks of harm could have been reduced or avoided by reasonable instructions or warnings and their omission makes the product unsafe.

4 MAY 2016

There is a conflict between strict products liability and the principle of comparative fault. The issue is, “What state’s statutes are applicable?” In Georgia and Montana, evidence of a plaintiff’s contributory negligence has no place in a strict product liability case. Montana does have an exception when the consumer knew of the defect or the defect was open and obvious, and the consumer unreasonably used the product or the product was unreasonably misused. New Jersey limits comparative fault to cases in which a consumer intentionally disregards a known risk in deciding how to use the product. Louisiana and Kentucky hold that comparative fault may apply in products liability cases.

To what extent does it matter which state’s law applies to a products liability claim? It can matter a lot. When a product malfunctions in a state different from the one where it was sold or delivered, it may not be clear which state’s law controls the legal arguments in the claim. The recent case of Rupp v. Phusion illustrates how great the differences between states can be. The product that was alleged to be defective was Four Loko, a caffeinated alcoholic beverage. It was purchased in Virginia. The Phusion defendants were based in Illinois. Virginia did not recognize strict liability for products liability claims. Illinois did. If you’re the plaintiff (Rupp), you probably want Illinois. If you’re the defendant (Phusion), you want Virginia.

A recent Pennsylvania Supreme Court decision, Reott v. Asia Trend, noted that defendants in a product liability case have the burden of proving an affirmative defense. Quoting the Reinstatement Second, the Supreme Court wrote, “The Restatement continues that assumption of the risk is only relevant where there would otherwise be a breach of some duty

owed by the defendant to the plaintiff. It is then a defense, which relieves the defendant of the liability to which he would otherwise be subject. The burden of proof is therefore upon the defendant.”

The Supreme Court also held that a claim by a defendant that a plaintiff was highly reckless is also an affirmative defense. The Court stated, “The defendant must show that the highly reckless conduct was the sole or superseding cause of the injuries sustained.” The Pennsylvania Supreme Court cited many other state supreme court opinions that refer to product misuse as an affirmative defense similar to highly reckless conduct.

It appears that the Pennsylvania courts still rely on the Restatement of the Law, Second for products liability claims (strict liability), with product misuse or highly reckless conduct as a defense for the defendant (seller or manufacturer).

Y’all take care! n

Jerry M. Milton, CIC, teaches and consults on industry issues. The legal profession recognizes him as an expert on insurance

coverages. He also serves as our education consultant, working with our CISR, CIC and continuing education programs. Catch him at one of our upcoming seminars: IABforME.com/MyTraining.

CIC CORNERCATCH JERRY Milton or one of our other education consultants – Jim Harrison, Dan Lawyer and Clem Wandrisco – at an upcoming CIC Institute or Ruble Graduate Seminar.

INSTITUTES

Agency Management – May 11-14, Hunt Valley, Md.

Life & Health – June 21-24, Lancaster, Pa.

Commercial Casualty – July 20-23, Pittsburgh, Pa.

Agency Management – Aug. 3-6, Philadelphia, Pa.

Commercial Property – Sept. 12-15, Harrisburg, Pa.

Commercial Casualty – Sept. 26-29, Erie, Pa.

Commercial Property – Nov. 9-12, Hunt Valley, Md.

Commercial Casualty – Dec. 5-8, Philadelphia, Pa.

GRADUATE SEMINARS

May 23-24, Philadelphia, Pa.

June 6-7, Annapolis, Md.

July 11-12, Lehigh Valley, Pa.

Aug. 8-9, Hershey, Pa.

Aug. 17-18, Ellicott City, Md.

Oct. 3-4, Ocean City, Md.

Oct. 17-18, Pittsburgh, Pa.

Nov. 14-15, Lancaster, Pa.

IABforME.com/CIC

5

STATE NEWS

RUNNING LIST OF EMPLOYMENT LAW CHANGESKeep up with the changing human resources landscape – and the case law, legislation and regulations that alter it – by reviewing our HR Bulletins. We work with our HR consultant to monitor employment law and keep a running tab of state and federal updates within our HR Solution© toolkit. Each HR Bulletin highlights an update and what’s important for member agencies to know and to consider implementing as a result.

Our latest federal HR Bulletins include:

• Updates to the standard mileage rates for business

• Explanation of “joint employment” and the applicability and compliance obligations for employers

• Implications of the Protecting Americans from Tax Hikes Act of 2015 on IRAs, Health Savings Accounts and Coverdell Education Savings Accounts

The latest Maryland-specific HR Bulletin provides an update on incremental minimum wage hikes.

As a reminder, HR Solution is a comprehensive collection of human resources products and services designed exclusively to help our member agencies develop and maintain their agency’s HR program. HR Solution not only complies with federal law but has been customized for state and insurance-specific laws and regulations.

IABforME.com/resource_center/HR_Solution (select “HR Updates”)

MIA EYES 2016 HURRICANE SEASON

Insurance Commissioner Al Redmer continues to prioritize disaster preparedness. He will host a public meeting with insurance companies on Monday, May 2 in Baltimore to discuss preparation – on behalf of the Maryland Insurance Administration (MIA) and of insurance carriers – for the 2016 hurricane season.

When we interviewed Redmer for the October 2015 Primary Agent magazine, we discussed his frustrations as insurance commissioner during Hurricane Isabel and how it shaped his current expectations of the industry. Specifically referring to insurance producers, Redmer said: “[Agents] need to know what they have sold, understand the claim process and be responsive to the folks who are good enough to give them their business.”

TAKING NOTE OF ABBREVIATED NOTICES

State regulators this spring slapped the hands of insurers and premium finance companies. The Maryland Insurance Administration (MIA) released Bulletin 16-08 to remind them of the minimum number of days’ notice required by statute to cancel, non-renew, increase the premium, or reduce coverage on a property and casualty policy.

According to the MIA, some insurers and premium finance companies have taken action without providing the required number of days. The bulletin provides additional explanation on calculating the number of days’ notice and examples of the correct application of the statute.

Insurance.Maryland.gov

6 MAY 2016

HOW ‘HOME STATE’ IMPACTS PRODUCER LICENSINGState lines create common tripping hazards for producer licensing. The producer licensing laws in Maryland define “home state” as where a producer:

• Maintains a principal place of residence or principal place of business and

• Is licensed to act as a resident insurance producer

The home state is the resident state and where continuing education is fulfilled. A producer cannot rely on an agency license in lieu of obtaining a proper individual resident license.

What this means is that if you live in Maryland and work in Delaware, you can choose either one as your home state. If you move (or change employers) and suddenly you work and live in the same state, that state must become your home state, and you must secure a resident license there. You have a limited time to switch your resident state if you want to be exonerated from the licensing exam.

Our online licensing resources include answers to frequently asked questions about changing a home state:

• What if I live in one state but work in another?

• What’s the process to receive a new resident producer license?

• What do state regulators require as proof of residency?

IABforME.com/resource_center/licensing/home_state

MEMBER MEETINGS IN MAYThank you in advance to those agency owners and principals slated to attend our upcoming member meetings, May 3-4 in Timonium, Bowie and Gaithersburg. Our senior management will be on hand to gain input on our association’s new path – offering consulting services geared specifically for independent agencies.

Our goal is to learn what’s on members’ to-do- list (e.g., implementing an HR program, instituting producer agreements, crafting a perpetuation plan) that could benefit from the expertise of a consultant who understands how independent agencies operate. Watch for more details in the months ahead.

INCREMENTAL INCREASES CONTINUE FOR MINIMUM WAGEThe Maryland Minimum Wage and Overtime Law continues to trigger a series of minimum wage increases. The legislation adjusted the rate as of Jan. 1, 2015 and continues into 2018.

$7.25/hour – until Dec. 31, 2014$8.00/hour – effective Jan. 1, 2015$8.25/hour – effective July 1, 2015$8.75/hour – effective July 1, 2016$9.25/hour – effective July 1, 2017$10.10/hour – effective July 1, 2018

Employers are required by law to post information on the state’s Minimum Wage and Overtime Law. An updated poster is available on the Department of Labor, Licensing & Regulation’s (DLLR) website.

Please note that employers in Prince George’s and Montgomery Counties

are subject to a slightly different set of increases: Most recently, as of Oct. 1, 2015, rates in both counties rose to $9.55/hour. The information and county-specific posters are also available on the DLLR website.

http://www.dllr.state.md.us/labor/wages/wagehrfacts.shtml

NEW P&C LICENSING EXAM PREP GUIDEBuilding on the success of our pre-licensing program in Pennsylvania, IA&B has now written the book on licensing exam preparation in Maryland. With the release of our new Maryland Property & Casualty Pre-Licensing Manual, aspiring agents now have a tool they can use to significantly improve their chances of passing the Maryland P&C licensing exam on the first try.

This new state-specific pre-licensing guide gives would-be agents insight into the questions they should be prepared to answer when taking the exam. The new course manual explains the entire test process (from registration through test-taking tips), provides a study schedule and encourages working with a mentor.

MENTOR PROGRAMIncluded in the cost of the pre-licensing package ($169 for IA&B members/$189 for non-members) is a mentoring guide that can greatly contribute to the exam prep experience and increase the likelihood of success on the test. We urge students to work with a mentor in their agency, and our mentor guide facilitates this with strategies, schedules and sample questions.

IABforME.com/self-study

7

PLATINUM PROFILE

Insurance Agents & Brokers proudly

recognizes Erie Insurance as one of its

Platinum Partners. IA&B Platinum Partners

dedicate the highest level of sponsorship

to our organization.

FEATURED PARTNERErie Insurance

CHIEF EXECUTIVE OFFICERTerry CavanaughPresident and CEO

CORPORATE HEADQUARTERSErie, Pa.

A.M. BEST RATINGA+ Superior

WEB SITEwww.erieinsurance.com

It’s the rare individual who is motivated by a genuine desire to help others.

And it’s the rare company that puts that principle into practice.

At Erie Insurance, we’ve been helping people make things right since 1925, working side-by-side with the best independent agents in the business.

Our agents and employees are energized by a clear sense of purpose, performing to the best of their ability, because they know the work they do benefits millions of customers’ families and businesses. It’s part of being Above all in sERvIcE® and it’s why we’re so committed to the independent Erie agents who live and work in the communities they serve.

On the strength of these relationships, Erie Insurance has risen to become one of the nation’s most respected property/casualty and life insurers.

Today, we’re a Fortune 500 company operating in 12 states and the District of Columbia. Erie has more than 5 million policies in force. We’re the 15th largest property/casualty insurer in the United States, based on total lines net premiums written, and the 10th largest home insurer and 12th largest auto insurer

based on direct premiums written. A.M. Best rates Erie Insurance A+ Superior.

Erie Insurance Group is a Barron’s 500 company and has been recognized by Forbes as one of America’s 50 Most Trustworthy Financial Companies.

Erie Insurance’s founding principle was to provide its policyholders with as near perfect protection, as near perfect service as is humanly possible, and doing so at the lowest possible cost. That same principle guides us today.

We still adhere to disciplined underwriting, fair pricing and a prudent investment philosophy. We still practice the Golden Rule — treating others as we want to be treated.

We still thrive on the Erie family spirit, employees and agents working together as a team for the good of our customers and the communities we serve.

At our core, we still believe the truth in our founder H.O. Hirt’s words: “Success in business is not a matter of tricks or gimmicks…it is just a matter of simple common sense, mixed with just plain decency.” n

8 MAY 2016

PARTNERS PROGRAM

Listed below are those companies that strongly support the independent agency system and Insurance Agents & Brokers.

Thank you for your continued sponsorship.

WHAT IS IA&B PARTNERS? The IA&B Partners program gives company and allied businesses the opportunity to demonstrate their commitment of support to independent agents and receive maximum market exposure. As an IA&B Partner, you will also realize the benefits of IA&B membership to help you succeed in the insurance industry.

DO YOU SEE YOUR NAME? To become an IA&B Partner, choose the sponsorship package that matches your commitment of support. Contact the Member Sales Center at 800-998-9644, 717-795-9100 or visit us online at IABforME.com to get started.

PLATINUM LEVEL

ACUITY

Amerisafe

Berkley Mid-Atlantic Group

Donegal Insurance Group

Erie Insurance Group

Harleysville Insurance

Insurance Agents & BrokersService Group Inc

Liberty Mutual Insurance

MMG Insurance Company

Millers Mutual Group

Mutual Benefit Group

Penn National Insurance

Swiss Re

The Main Street America Group

United Fire Group

Utica National Insurance Group

GOLD LEVEL

Progressive

Westfield Insurance

SILVER LEVEL

Access Insurance Company

American Mining Insurance Co

Cumberland Insurance Group

Farmers Mutual Insurance Companyof Western Pennsylvania

Frederick Mutual Insurance Co

Juniata Mutual Insurance Co

Keystone Insurers Group Inc

MAPFRE Insurance

PSBA Insurance Trust

Selective

The Philadelphia Contributionship

BRONZE LEVEL

Aegis Security Insurance Co

Agency Insurance Company

AmWINS Program Underwriters Inc

ARI Insurance Companies

Auto-Owners Insurance Company

Bailey Special Risks Inc

Brethren Mutual Insurance Company

Briar Creek Mutual Insurance Company

Conemaugh Valley Mutual Insurance Co

Countryway Insurance Company

Encompass Insurance

Foremost Insurance Group

GMI Insurance

Goodville Mutual Casualty Company

Grinnell Mutual Reins Company

Guard Insurance Group

HM Workers’ Compensation

Insurance Alliance of Central PA Inc

Insurance House

Insurance Placement Facility of PA

Lackawanna Insurance Group

Lebanon Valley Insurance Company

Merchants Insurance Group

Mercury Casualty

Millville Mutual Insurance Co

PennPRIME Municipal Insurance

Reamstown Mutual Insurance Company

Rockwood Casualty Insurance

State Auto Mutual Insurance Company

TAPCO Underwriters Inc

The Motorists Insurance Group

The Mutual Service Office Inc

Travelers

Tuscarora Wayne Group of Companies

Zenith Insurance

9

10

PLATINUM PROFILE

Insurance Agents & Brokers proudly

recognizes Berkley Mid-Atlantic Group

as one of its Platinum Partners. IA&B

Platinum Partners dedicate the highest

level of sponsorship to our organization.

FEATURED PARTNERBerkley Mid-Atlantic Group

PRESIDENTSusan N. Grady, ARM, AMIM

OFFICE LOCATIONSGlen Allen, Virginia

Harrisburg, Pennsylvania

Sewickley, Pennsylvania

Columbus, Ohio

(800) 283-1153

A.M. BEST RATINGA+ Superior

CLAIM SERVICE4.71 out of 5.00 customer satisfaction

WEB SITEwrbmag.com

SOCIAL MEDIAtwitter.com/WRBMAG

linkedin.com/company/ berkley-mid-atlantic-group

At Berkley Mid-Atlantic Group, we insure the future of business

by partnering with select independent agents to provide commercial insurance products and services backed by local expertise and financial stability.

Our expert underwriting and service teams deliver insurance solutions that cater to small and mid-sized companies throughout the Mid-Atlantic Region.

INDUSTRIES WE SERVE• Construction

• Retail

• Service

• Wholesale

• Financial/real estate

• Manufacturing

PRODUCTS• Commercial Automobile

• Commercial Package

• Commercial Umbrella

• General Liability

• Workers’ Compensation

LOCAL EXPERTISEOur regional presence in key Mid-Atlantic states gives us the ability to provide local accessibility, availability and, above all, responsiveness to agents and policyholders. With this unwavering commitment to customer service, we are able to fulfill our goal of effective claims execution and delivery, all done with a personal touch.

W. R. BERKLEY CORPORATIONBerkley Mid-Atlantic Group is a member company of W. R. Berkley Corporation, a Fortune 500 insurance holding company that is among the largest commercial lines writers in the U.S. n

MAY 2016

Berkley Mid-Atlantic Group provides commercial insurance to thriving businesses across six major industry segments and now offers exciting solutions for your brewery and winery customers.

Directionthere when it ma�ers most

Directionthere when it ma�ers mostthere when it ma�ers mostthere when it ma�ers mostthere when it ma�ers most

To learn more visit www.donegalgroup.com or call Rick Kelley at 800-877-0600.

Donegal remains committed to our chosen direction for distribution — the independent agency system.

Unlike many others in the industry, Donegal has no interest in any other distribution channel. Instead, we focus our energy on consistently delivering greater value to our agents.

Staying true to our chosen course of supporting the independent agency system… another way Donegal is “There When It Matters Most.”

12 MAY 2016

When discussing various types of errors and omissions loss control practices, documentation is still most important. Unfortunately, even if you do everything right with a customer, you still occasionally have insureds who find themselves without coverage for a particular loss. If one of those insureds has a faulty memory or questionable ethics, then, despite doing everything right, you may find yourself defending an E&O claim or lawsuit. In those situations, documentation is often critical to the defense of the agency or brokerage.

By Robert Walker Lewis, Esq. and James C. Keidel, Esq.

WAYS TO PROTECTYOUR AGENCY

FIGHT BACK WITH

DOCUMENTATION

4

13

Generally, there are several key documents we look for when defending agents and brokers. These documents

include signed applications, detailed notes and comprehensive activity logs, as well as policy transmittal and confirmatory letters to insureds. When an agency or brokerage has these documents in its files, the chances of successfully defending a claim or lawsuit greatly increases.

SIGNED APPLICATIONSSigned applications are a very powerful tool when defending an E&O claim or lawsuit. When submitting an application on behalf of an insured, you should always make sure the insured signs the application and you keep a copy of the signed application in the customer’s file. We suggest you obtain a signed application even if the insurer does not require one. In many cases, an application signed by the insured is all it takes to defeat an E&O claim or lawsuit.

Many of the cases we handle involve situations where insurance companies seek to rescind a policy based upon an alleged misrepresentation in the insured’s application. Often, the insured will then seek to cast blame upon the agent or broker for that misrepresentation. Usually, the insured will claim either that the agent or broker failed to actually ask the question

In many cases, an application signed by the insured is all it takes to defeat an E&O claim or lawsuit.

14 MAY 2016

©2016 Applied Underwriters, Inc., a Berkshire Hathaway company. Rated A+ (Superior) by A.M. Best.

Insurance plans protected U.S. Patent No. 7,908,157.

Expect big things in workers’ compensation. Expect to save a third of your clients 30% or more. Most classes approved, nationwide.

For information call (877) 234-4450 or visit auw.com/us.

on the application, or the agent or broker made a mistake in completing the application. In such cases, an application signed by the insured will often provide a basis for an early motion for summary judgment as it demonstrates the insured was aware of the information provided on the application and literally signed off. On the other hand, if there is no signed application, the case will likely come down to a swearing contest between the insured and the agent or broker, a situation that is, needless to say, best to avoid.

The same is often true in cases where insureds complain they requested different or additional coverage beyond what their policies actually provide. While an application cannot always establish the type of coverage the insured requested, if an insured has signed an application that requests a certain limit of coverage or lists them as performing certain types of operations, the insured will have a difficult time proving he or she asked the agency or brokerage for different coverage.

We also strongly recommend against an agent or broker signing an insured’s name to an application – a common but unfortunate practice. Even if the insured consents to this practice, doing so may create a situation where, when coverage is contested, the insured changes his story and then accuses the agent or broker of committing forgery. If an insured is not available to sign the application and you feel that you must sign his or her name, we suggest that, at the very least, you have your customer send you something in writing, expressly authorizing you to do so.

ACTIVITY LOGSWe recommend all agents and brokers maintain a system for logging their activities and interactions with insureds and insurers. Most agencies and brokerages have agency management systems that provide an easy and uniform way to track these interactions. One of the benefits of using an agency management system is that it inserts a timestamp showing the date and time when each entry was made.

It is not unusual for an E&O claim to be made or lawsuit brought many years after the insurance transaction took place. The statute of limitations for claims against an agent or broker may be as long as six years. As a result, it is not uncommon for memories to fade or employees with knowledge of the relevant facts to have left the agency or brokerage before an insured opts to pursue a claim or commence a lawsuit. Having an activity log can help refresh faded memories and, in the right circumstances, even stand in for an employee who cannot be located to testify.

THE AGENTS’ AGENCY FOR E&O COVERAGE“DESPITE DOING everything right, you may find yourself defending an E&O claim or lawsuit,” share the authors. It’s not a reassuring sentiment, but an important one nonetheless. And it’s further support for working with the IA&B Sales Center – an agency that fully understands your business and protects your agency with a serious E&O program.

Our Sales Center is an independent agency just like yours. It’s staffed by licensed E&O experts who can customize coverage to meet your needs. But beyond that, the Sales Center is a full-service agency, helping to strengthen your business with award-winning loss-control seminars, manuals for compliance, and legal expertise for tough questions. In fact, you get the benefit of having an entire association of experts – dedicated to independent agents – on your side.

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Having an activity log can help refresh faded memories and, in the right circumstances, even stand in for an

employee who cannot be located to testify.

18 MAY 2016

An activity log can also help bolster disputed testimony. While a jury may believe a sympathetic insured’s version of events over the agent’s or broker version, this becomes much less likely if the agent or broker is able to back up his or her testimony with an activity log made at the time the events actually occurred.

Unfortunately, while we find most agencies and brokerages use some type of agency management system, we often find some employees are inconsistent is their use of the system to keep track of activities. This inconsistency may present problems in preparing a defense to a claim or lawsuit. After all, it is difficult to know ahead of time the event or activity an agency or brokerage may ultimately need to defend against in an E&O claim or lawsuit. Consistent use by agency or brokerage employees in recording customer activities in an agency management system should alleviate this potential problem.

TRANSMITTAL LETTERAnother important document often used in the defense of an E&O claim or lawsuit is a policy transmittal letter. One of the best ways to demonstrate the insured received a copy of the policy is to send the policy with a transmittal letter and then to retain a copy of that letter in the customer’s file. Doing so also provides an opportunity to remind insureds to review their policies and let the agency or brokerage know if there are any problems with the coverage or if any changes to the policy are needed. A policy transmittal letter will also help defend against a claim that the insured specifically requested additional coverage beyond what his or her policy provides or that the agent or broker represented the policy provided coverage that it did not.

CONFIRMATORY LETTERSFinally, any time an insured asks the agency or brokerage to do something in connection with a policy, we recommend the agency or brokerage memorializes the request in writing. Not only does this help establish the agency or brokerage understood the insured’s request, but, if the request ultimately results in the insured being left without coverage for a loss, it can help prove the agency or brokerage was merely following the insured’s

instructions. For example, a confirmatory letter would be appropriate when an insured asks the agency or brokerage to increase its deductible or requests the agency or brokerage procure less or different coverage than you would normally obtain under the circumstances. In such situations, a confirmatory letter would be helpful to demonstrate the agency or brokerage was merely following the instructions of its customer.

CONCLUSIONDocumentation is clearly the key to E&O loss control. The prudent insurance agency or brokerage should make certain each form of documentation discussed above is consistently used by all employees on a regular basis. By doing so, the agency or brokerage will not only help protect itself from potential E&O claims or lawsuits, but it will also help protect the customer and provide better customer service. n

Submitted by Robert Walker Lewis, Esq. and James C. Keidel, Esq., of Keidel, Weldon & Cunnningham, LLP. Keidel, Weldon & Cunningham, LLP concentrates its practice in the defense of insurance agents and broker’s errors and omissions claims and litigation, errors and omissions loss control counsel and education, insurance coverage analysis and litigation and insurance regulatory matters.

Reprinted with permission. Copyright Independent Insurance Agents & Brokers of New York Inc. and Keidel, Weldon & Cunningham, LLP.

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By Utica National E&O Program

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Moving an account to a new carrier may be a common occurrence, but unfortunately so are the lawsuits following replacement of coverage. In fact, Utica National reps consider related E&O claims the most concerning trend of the last calendar year. Here, they share tips for identifying, explaining and documenting common coverage differences.

20 MAY 2016

E & UH-OH: REDUCE YOUR RISKLEARN MORE strategies to protect yourself from E&O claims. Our seminars explain how and why agents are sued – and how to minimize exposures through loss-control protocols (like the mirror test).

E&O Risk Management: Meeting the Challenge of Change

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Dover, Del. – July 20

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IABforME.com/E&Oseminars

With 2015 firmly in the books, it is interesting to review the Agents’ Errors and Omissions (E&O)

claim trends. Claim severity, the ultimate cost of an E&O claim, is rising. Claims frequency, the number of E&O claims per 100 agencies, remains in excellent shape. However, failure to mirror the coverage of the previous policy continues to generate more than its share of E&O claims.

AN E&O CLAIM EXAMPLEThe claimant’s initial homeowner’s policy included an endorsement extending liability coverage for the client’s rental dwelling. When the client bought a new house, the initial policy was canceled and rewritten with a different carrier and did not include the extended liability coverage for the rental dwelling.

The underlying claim involved a two-year-old who fell down the basement steps at the rental dwelling and subsequently died. The child’s estate pursued a wrongful death action against the agency’s client, alleging negligence for failure to have railings on the stairway. When the claim was submitted to the homeowner’s carrier, it was denied due to the lack of the extended liability endorsement. This prompted an E&O action against the agency with the allegation of failure to mirror the coverage of the previous policy.

POINT OUT THE DIFFERENCESAsk most agents when was the last time they moved an account to a new carrier and more often than not, the answer will be “yesterday.” As accounts are moved to a new carrier, it is definitely possible that the coverage with Company B is not as broad as Company A. How do you minimize the chance of being sued when coverage is not equivalent? Bring the differences, especially the reductions, to the client’s attention and secure their sign-off. This documentation will be key if a claim occurs and the client finds out they didn’t have the coverage they thought they did.

More common areas in which there can be coverage differences include:

• Sub-limits

• Who is an insured

• Coverage grant

• What is excluded

• Specific endorsements

• The carrier’s financial rating

On E&O policies, the covered professional services can vary greatly from one carrier to another.

PERFORM THE “MIRROR TEST”Having an agency staff member give the policies a quick “once-over” is not comprehensive enough to identify any gaps or problems with policy issuance. It is best for agencies to use a checklist that is completed and saved in the system. The checklist should be broken down by overall issues (e.g., named insured, additional insureds, address, effective and expiration dates, policy number, etc.) and by line of business. For whatever reasons an account is switched to a new carrier, agents should perform the “mirror test” to see whether replacement coverage is equivalent to the previous policy and, if not, should point out the differences in writing to the customer. It could just save the agency from a big E&O headache down the road. n

21

WHERE WE’REH EAD E D

TECHNOLOGY UPDATE

7INDUSTRY TRENDSTO WATCH

By ACT Strategic Future Issues Work Group

22

1. MOBILE FIRSTMobile, along with social and cloud computing, is what has enabled the cultural transformation and the emergence of the connected consumer. Mobile cuts across everything. It will change the insurance products offered (telematics, health checks, travel, etc.); it will affect quotes, account management and claims; and it will create a new infrastructure for communication in disaster situations. It will also change the way the customer interacts with agents and carriers, and how agents and carriers communicate with each other.

Equal emphasis needs to be on mobile solutions that connect insureds to both the agency and carrier, as well as mobile solutions that connect agents to carriers. Solutions should enable customers to connect when, where and how they want. Mobile plays a big role in omni-channel communication. The consumer of today is mobile connected.

Mobility with integrated data is becoming an expectation of consumers. Some insurance-specific examples include:

• Scan/take a picture of a VIN which could then compile data on that vehicle for prefill during the quote process

• Identify a windshield repair shop in area via GPS, scan VIN and feed data to the shop to make an appointment and determine the price and availability of a compatible windshield

• Scan a driver’s license to pre-fill forms during the quote process

Data needs to be available anytime, anywhere and any way that the customer wants it. Our industry needs to adopt a “mobile first” strategy. Mobile should not be an added feature but rather the core strategy for the development of new processes, procedures, products and services.

2. SOCIAL CULTURE/DIGITAL TRANSFORMATION/INTERNET OF ME This trend is an acknowledgement of the broad influence and impact social and digital is having on all aspects of our society, including our business lives. It implies the ongoing transformational change in our culture. It is an expansive, strategic trend that has grown from social web tools and digital technology. This trend highlights the need for organizations to not just “do” social but to become social and digitally transformed businesses.

In this new environment, consumers have taken social interaction to a higher level. They communicate virtually with larger groups of people, while at the same time are becoming increasingly interconnected and empowered using social media, mobile devices and other digital technologies. Consumers are employing these new tools to become better informed, make buying decisions and share their opinions with followers about products, businesses and events.

Businesses are starting to reinvent their business models to fit into the social culture and are transforming themselves into “social businesses.” Digital organizations should leverage the opportunities presented by the social web, as well as adapt and respond to the expectations of the connected and empowered consumer.

Social business goes to the core of the business value statement and brings human value back into the core business roles, processes and outcomes.

3. CONNECTED SOCIETYConnectivity is expanding from consumers to business and even “things”— all aspects of our physical world are being connected. We live in a digitally transformed world.

Connected consumers are empowered through changing technology to interact with the social and physical world

Earlier this year, the Agents Council for Technology (ACT) Strategic Future Issues Work Group released the first phase of an initiative to identify key trends that affect the future of the independent insurance agency system. The “hard trends” identified are the trends that the work group believes are permanent and ushering in cultural and societal change. Here, we offer highlights of their findings. The full report is available on the ACT website.

23

around them, and thereby shape how businesses respond. They find, share and communicate information differently than the “traditional” consumer. They live on smartphones and tablets and network with friends and businesses through social, mobile and digital technologies. Reaching and responding to this consumer requires both different strategies and tactics than traditional marketing and communications methods. It is critical to create relevant connections.

4. DEMOGRAPHIC/SEGMENTATION & PERSONALIZATIONThis trend encompasses diversity in every sense of the word: age, ethnicity, culture, gender and connected vs. non-connected. For example, what would an agency look like with producers, service reps and owners from 23 to 73 all working

together within agencies and interacting remotely/virtually? There is now a new category of diversity: the connected vs. non-connected consumer.

We are being challenged to offer clients a personalized customer experience that is tailored to their segmented group, whether that group is determined by language, age or ethnicity.

Omni channel is a multichannel approach to the customer journey that is applicable across the entire customer experience (from discovery to advocate). It seeks to provide the customer with a seamless experience whether the customer is online from a desktop or mobile device, by telephone or in a bricks-and-mortar store.

5. GROWING AVAILABILITY OF BIG DATA AND ACTIONABLE BUSINESS INTELLIGENCE New technologies and techniques are enabling the capture and analysis of more and more data (big data) and the creation of more useful business intelligence from it. Agencies and carriers are able to integrate this business intelligence into their decision-making in real time, enabling them to understand their consumers and operations better. These data analytics capabilities have significantly changed how insurance carriers make underwriting, servicing and marketing decisions. There are major opportunities for independent agencies to harness this business intelligence to enhance their prospecting, marketing, sales, servicing and management processes. Using business intelligence and analytics, an agent can predict when

24 MAY 2016

a consumer is likely to have a need rather than waiting for them to reach out or making a cold call.

6. CHANGING NATURE OF INSURANCE RISKChanging social norms, applications of technology, climate change and all of the trends noted above and more are changing the types of risks that consumers and businesses are facing. This is creating new opportunities for insurance carriers and agents to design new coverages. Insurance agents need to advise their clients differently about their risks in areas such as the “sharing society,” information security exposures, cyber liability and the increase in the number and severity of natural catastrophic events.

The nature of insurance risk is changing and much of this has to do with technology. The pace of change has not been seen in our industry previously. The proliferation of technology by itself has increased tremendously over the past 10 years and shows no sign of slowing. The actual nature of risk is changing/expanding while the insurance industry is learning about the changing risk characteristics. The way we handle risk is also changing. Big Data is enabling more and more companies to provide better analytics and pricing.

7. INFORMATION SECURITY & PRIVACY REGULATION – CYBER LIABILITYFederal and state regulators will increasingly target businesses which have not implemented statutorily required security plans and procedures, and the costs of data breaches will become more expensive to businesses. Criminal elements will continue to exploit the system security vulnerabilities of businesses and individuals using more

and more sophisticated technologies, and employees will make mistakes. This will result in the breach of classes of personal information protected by the federal and state statutes, typically referred to as Protected Health Information and Personally Identifiable Information. Mobility and cloud computing greatly increase the security risks that businesses face.

In addition to increasing the accessibility to “private” information, many of the trends mentioned above increase the potential for cyber terrorism. The Internet of Things (IoT) for example, opens up the potential for cyber terrorists to hack into any connected person or device.

These growing risks also create opportunities for carriers and agents to provide coverage and risk management guidance to clients.

View the complete report on the ACT website (www.iiaba.net/ACT). n

The Agents Council for Technology (ACT) was established to provide a candid, action-oriented forum to address the critical workflow and technology issues facing the independent agency system. ACT helps participants understand the perspectives of the other stakeholders in the process and provides excellent networking opportunities with the participants who are shaping the future for the industry on these issues.

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25

HR HEADQUARTERS

JOINT EMPLOYER LIABILITY RULES

FORBIDPASSING THE (OVERTIME) BUCK

26

By IA&B staff with Karen H. DiGioia

If you ever use temps, belong to a cluster, or have two or more agencies sharing staff, you may need to look into the January 2016 guidance by the U.S. Department of Labor (DOL) on “joint employment.” In the case of joint employment, both employers are responsible for compliance with the Fair Labor Standards Act (FLSA) and for payment of overtime to any “joint employee.”

T he DOL published guidance in the form of an Administrator’s Interpretation to address the issue of

joint employment under the FLSA. In simple terms, joint employment can exist when a single worker is “an employee to two or more employers at the same time.” The guidance then identifies two different types of joint employment: horizontal and vertical. Horizontal joint employment occurs “when two or more employers each separately employ an employee and are sufficiently associated with or related to each other with respect to the employee.” Here, the focus is on the relationship and/or degree of association between the employers.

Possible examples for independent agencies include situations where staff is shared between:

• Two agencies with common ownership, management or control, or some other level of affiliation

• Agencies belonging to or organized as a cluster

Vertical joint employment occurs “when an employee of one employer is also, with regard to the work performed for that employer, economically dependent on another employer.” In vertical joint employment, the focus is on the “economic realities,” the relationship between the employee and the employers, to establish whether the employee is economically dependent.

For independent agencies, vertical joint employment could be found when an agency uses:

• Contracted employees such as personnel hired from a temporary staffing agency or a professional employer organization

• Independent contractors (watch the other DOL guidance on independent contractors published in July 2015)

IF APPLICABLE, HOW WOULD AN AGENCY BE IMPACTED?If you are in a situation where there is joint employment, you need to make sure that the combined hours worked are counted in order to see if the person is eligible for overtime under the FLSA. When there is joint employment, the guidance clearly states that both employers are jointly and severally liable for compliance with the FLSA and for the payment of overtime to the employee.

Example 1: John Doe owns two agencies (A and B), one for Property & Casualty, one for Life & Health products. Mary does clerical work for both entities. A and B are joint employers. If Mary (a non-exempt employee) is expected to work 20 hours for each agency, and ends up working 19 hours for one and 24 hours for the other, Mary worked a total of 43 hours and is owed three hours of overtime pay. Agency A and agency B cannot each claim that Mary worked less than 40 hours for each agency.

Example 2: Abc Agency partners with a bank, and together they form a third entity. Some bank staff and some agency staff will be designated to also work for the newly formed entity.

• The employees’ hours need to be tracked properly so that any non-exempt employee working over 40 hours is paid overtime.

• If any employee is exempt when working for his or her regular position, make sure the exempt status also applies to the job performed for the new entity. If not, look at the primary functions and ascertain whether the employee should be non-exempt.

• Review your contract with your partner (the bank), to understand how the hours are counted and any overtime is paid for the joint employees. If the partner is not diligent in indicating the number of hours worked by the employee and in properly paying the overtime, the entity you created together can be held liable since joint employers are jointly and severally liable.

27

Whether due to oversight or to a disagreement between the joint employers over who is responsible for overtime, improper calculation and payment could land both employers in hot water, since they are jointly and severally liable.

WHAT IT MEANS TO YOUIf you are not in any joint employment situation, then nothing changes.

If you are, or potentially are, in a joint employer situation:

• Setting some ground rules with the other joint employer(s) would go a long way in making sure that hours are properly monitored and properly attributed to the joint employers and that FLSA compliance and payment of overtime is properly calculated.

• Agreeing in advance on the way any overtime will be handled is recommended.

• Finally, you may want to review the indemnification (hold harmless) provision in your contract with the other joint employer to see how failure to comply by one party affects the other party. n

IA&B staff and Karen H. DiGioia of Mosteller & Associates, our contracted HR consulting firm, crafted this article as part of an on-going effort to assist member agencies with their human resources function. This information complements IA&B’s HR Solution©,

a compilation of products and services available exclusively for member agencies. Learn more at IABforME.com/emp_mgmt.

HR HEADQUARTERS

MAY 2016

PRESENTERS

Jason Ernest, Esq. IA&B Deputy CEO and Counsel

Claire Pantaloni, CIC, CISRIA&B Industry Affairs Director

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DATE TOPIC LOCATION

MAY 2016

3 CISR Commercial Casualty II Pittsburgh, PA

10 E&O Risk Mgmt.—Meeting the Challenge of Change Pittsburgh, PA

10-12 P&C Licensing Study Course Philadelphia, PA

11-14 CIC Agency Management Institute Hunt Valley, MD

17-19 P&C Licensing Study Course Pittsburgh, PA

18 CISR Life & Health Essentials *NEW!* Mechanicsburg, PA

23-24 James K. Ruble Graduate Seminars Philadelphia, PA

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25 CISR Elements of Risk Management Dover, DE

25 Understanding Flood Insurance Harrisburg, PA

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1 CISR Commercial Casualty II Altoona, PA

2 CISR Elements of Risk Management Mechanicsburg, PA

6-7 James K. Ruble Graduate Seminar Annapolis, MD

7 CISR Personal Lines Miscellaneous Pittsburgh, PA

7-8 DAIAB Convention Rehoboth Beach, DE

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