Common E&O Claims and How to Avoid Them

Every financial advisor, insurance agent, or other financial services professional should have E&O insurance. E&O, or errors and omissions, protects you from claims by other people that you either did something you shouldn’t have (an error) or didn’t do something you should have (an omission). As you pay your E&O insurance bill each month or each year, you may wonder what people actually get sued for. Here are some of the most common E&O claims and, perhaps even more importantly, how you can avoid them.

Poor Investment Returns

Anyone who has ever seen a TV commercial or read a magazine ad for a financial product knows that “past performance does not indicate future results.” But that doesn’t stop people from suing for poor performance. It’s pretty common for an investor to think that they are being shortchanged, especially if the markets are up or their neighbor is getting better returns than they are.

Misrepresentation

When a financial advisor is selling a new type of investment to a client, the client often hears what they want to hear. This could mean that they don’t consider that their returns could vary from the historical performance of a stock, or that they ignore the risk that an investment could lose money. In the case of an insurance policy, the client may not hear that certain situations may not be covered.

Insufficient or Inadequate Coverage

Insurance agents frequently find themselves facing and E&O claim because the client feels they were not sold adequate coverage for their circumstances. The challenge of striking a balance between coverage and cost is one that every agent struggles with, and one that many consumers don’t understand. The least expensive policy always seems like a good idea until you have a claim.

Avoiding E&O Claims

The three most important steps you can take to avoid an E&O claim are: document, document, document. Write down everything you discuss with your clients, whether that conversation is held in person, on the phone, or via email. Keep a copy of your notes in the client’s file, whether that is on paper or electronic.

When you present or describe new products to a client, make sure you explain both the advantages and disadvantages clearly. It’s tempting to hand over a prospectus that you know the client won’t read, but that practice could come back to bite you. Outline the most important points and make sure the client understands them.

If you are recommending a product to a client and they decline to purchase it, it can be a good idea to have them sign a disclaimer. The disclaimer should describe the product and your rationale for recommending it, and indicate that the client declined to purchase it. Keep the signed disclaimer in the client’s file. This is particularly important for things like long-term care insurance. In this case, the client may feel that the coverage is not worth the cost. Years later, the client could be confined to a nursing home, paying thousands of dollars a month out of their savings. The client’s children may come to you to ask why you never sold them long-term care insurance to protect the children’s inheritance. If you can show them the signed disclaimer, you may be able to head off an E&O claim.

You Can Win in Court and Still Lose

Even if you explain and document everything, you could still be sued. If that happens, you may very well prevail in court, especially if you’ve followed the above steps to protect yourself. But even if a judge finds in your favor, you will still have spent the time and money necessary to defend yourself. Your E&O policy may protect you here as well, as most policies will cover defense costs.
When it comes to protecting yourself against E&O claims, the best defense is a good offense. Carefully explaining your recommendations, documenting all your conversations, and maintaining good client records will go a long way toward preventing claims on your errors and omissions insurance.

All information provided in this blog is for informational purposes only. The sources used are presumed accurate. CalSurance Associates, Brown & Brown Program Insurance Services, Inc. and Brown & Brown, Inc. will not be liable for any errors, omissions, losses, injuries or damages arising from its display or use and will not assume responsibility for any misguided information. No guarantees are implied.

Is Errors & Omissions Prevention Part of Your Agency Business Plan?

Your financial services or insurance agency is in the business of protecting your clients from risk. But do you protect your agency from risk? A comprehensive risk strategy, including errors and omissions insurance, should be an integral part of your agency business plan.

Creating a Risk Strategy

The first part of your risk strategy should be prevention. The best course of action is always to prevent errors and omissions from happening in the first place. There are a few steps you can take to aid in your prevention efforts.

1. Have a process for every activity that you do on a regular basis. Create a list of tasks that you must do to bring a new client on board, develop a financial plan, complete an application for each product type that you provide, or conduct an annual client review, to name a few.
2.  Two sets of eyes are better than one. Have a second person look over your applications, financial plans, and client review notes. The second person could pick up something that the first person misses, preventing a claim by a client.
3.  Have an action plan in the case of a complaint. If a client files a complaint, whether it’s informally with you or formally with a regulatory agency, have a plan in place for what to do. The sooner you can get out in front of a complaint, the sooner you can begin to resolve it.
4.  Document everything you do. This goes for the producers in the office, like financial advisors or insurance agents, as well as administrative staff. Keep paper notes or electronic files in a contact management system, but have a record of every contact you have with every client, what was discussed, and what was decided.

Part Two: Errors and Omissions Insurance

The second part of your risk strategy should be to mitigate any losses from claims with insurance.
Errors and omissions insurance is sometimes referred to as E&O or professional liability coverage. It covers your agency for claims or lawsuits that arise because of something that you did that you shouldn’t have done, or something that you didn’t do that you should have done.

Why Do Financial Services Professionals Need E&O?

Ours is an extremely litigious society. It seems as though, every time we turn on the news, there’s another story about a lawsuit that seems to be ridiculous, but a plaintiff is awarded tens or hundreds of thousands of dollars.

If a client sues you or threatens to sue you, it’s usually because they think you caused them financial harm. You may have recommended an investment that does not perform well, causing the client to lose money. Or you may not have had a conversation with a client about long-term care insurance, only to have the client have to go to a nursing home for several years. Even if the claim is unfounded, you can still incur costs.

What does E&O Insurance Cover?

If your client files a formal complaint with the state insurance department or with FINRA, you may have to pay a fine if you cannot prove that the complaint is unfounded. If the client files a lawsuit, you may have to pay a settlement or judgement. An E&O policy can cover these costs, even if you didn’t do anything wrong.

Even if a lawsuit never gets to court, you may have to pay an attorney to defend you or to provide you with advice on how to proceed. You may also lose time from work to meet with your lawyer, give depositions, and try to negotiate with the plaintiff. All of these things cost money, and your errors and omissions policy could cover these expenses as well.

In a perfect world, there would be no unhappy clients and no need for a risk strategy to protect your firm. But given the environment in which we operate, having a comprehensive strategy to address any complaints, claims, or lawsuits makes good business sense.

All information provided in this blog is for informational purposes only. The sources used are presumed accurate. CalSurance Associates, Brown & Brown Program Insurance Services, Inc. and Brown & Brown, Inc. will not be liable for any errors, omissions, losses, injuries or damages arising from its display or use and will not assume responsibility for any misguided information. No guarantees are implied.

How to Avoid Gaps in E&O Coverage

Having errors and omissions coverage is important for any business. You can be sued for something you did that you shouldn’t have (an error) or for something you should have done but didn’t (an omission). You can even be sued if you haven’t done anything wrong, and that claim or lawsuit will cost you money even if it is found to be without merit.

Mind the Gap

Most E&O policies are so-called ‘Claims Made and Reported’ policies. This means that the claim must be both made by the insured and reported to the insurer within the coverage period. Many policies also state that the error or omission that the claim cites must have been made within the policy period. This is where the danger of the gap comes in.

You can have a claim that is made and reported within the policy period, but if the wrongful act occurred outside the policy period, your claim can be denied. If there is a gap in your coverage, even for as little as a day, the policy period doesn’t start until you get that new policy. This means that everything you did prior to obtaining the new policy is no longer covered.

Maintaining an E&O policy consistently is the only way to protect against this. If you or a client receives a non-renewal notice, be sure to obtain another policy prior to the expiration of the existing policy. Keep records of the application for the new policy, and copies of all policy documents, with dates of coverage. These will be needed if you have to show that you had coverage for a certain period of time.

The Risk of a Gap

Here’s an example. Jane is an insurance agent who has been in the business for 15 years. She has maintained her E&O coverage since she became an agent, and she has never had a claim. Last year, Jane went on a month-long cruise. While she was gone, her E&O insurance policy came up for renewal, but she didn’t see the bill until she came back.

When she realized her coverage had lapsed, she called her E&O broker and applied for a new policy, which went into effect as of the day she reapplied. She breathed a sigh of relief knowing that she was now covered again.

Six months later, Jane got a call from a client who had purchased a commercial liability policy from her several years ago. The client was upset because they had a claim that was not covered, and they felt that Jane should have sold them a rider that would have insured them against the claim. The client filed a complaint against Jane.

Jane submitted a claim against her E&O policy, but her claim was denied. Because she had a gap in coverage while she was on vacation, and the claim that was made against her stemmed from a policy sold before her new coverage began, the claim is not covered.

Your Clients Face the Same Risk

Keep in mind that if you sell E&O insurance, your clients face the same concerns. If a client’s E&O policy is subject to non-renewal, either because they neglected to pay the premium in a timely manner or if they have had a large claim and the carrier declines to renew them, it’s important to stay on top of it. Being able to write a policy with a new carrier in time to avoid a gap will keep your clients from suffering losses.

Keeping your E&O coverage in force at all times is critical. Avoiding gaps in your E&O coverage will ensure that any claims that are made are covered.

All information provided in this blog is for informational purposes only. The sources used are presumed accurate. CalSurance Associates, Brown & Brown Program Insurance Services, Inc. and Brown & Brown, Inc. will not be liable for any errors, omissions, losses, injuries or damages arising from its display or use and will not assume responsibility for any misguided information. No guarantees are implied.

How to Protect Your Agency or Firm Against Cyber Attacks

The losses resulting from cyber-attacks run into millions of dollars. What’s even more shocking is that nearly 60 percent of small businesses have to permanently close their doors after enduring a cyber-attack. In today’s world where businesses have a big online presence, it’s hard to escape cyber security threats. While threats of a very serious nature do exist, companies can take a few measures to block attacks and mitigate their risks.

Easy Ways to Protect Your Agency from Hackers:

Know Your Risks
As the frequency and scale of data breaches grow, you can’t go without having a plan of counterattack. You need to assess your risks, identify points of weakness in your system, and be aware of the latest cyber threats that are affecting businesses worldwide. It’s important to mitigate your risks and protect your networks by switching to encrypted e-mail providers and using full-disk encryption tools.

Keep Updating Your Software
Most business owners can’t fully control company computers. To curb threats, it’s important to download and update spyware and anti-virus software. Patch management is equally essential. It ensures that each and every computer remains updated with the latest patch releases from OS and application vendors.

Penetration Testing and Website Monitoring
Once you’ve completed all your preliminary measures, run vulnerability and penetration tests on your system to determine how strong they are. Vulnerability scanners protect your software throughout its lifecycle. They identify threats and help you prevent attacks.

Secure Your Hardware
Despite taking all necessary precautions, companies can still succumb to security threats when thieves walk away with electronic equipment. It’s important to secure server rooms and USB drives so your sensitive data doesn’t end up in the wrong hands. Go one step further and backup in the cloud. That way, even if your hardware is destroyed due to fires or other incidents, you’ll have the chance to access your data and resume operations without delay.

Be Prepared to Counter Attack
Make sure you have an incident management team ready to handle breaches. If you haven’t employed data breach specialists, consult a security firm to protect your company. Incident management teams are familiar with compromised systems. They know how to coordinate the recovery process and mitigate further risks.

Employee Training
Small mistakes often lead to big problems. To ensure there aren’t any loopholes in your online system, train your employees and encourage them to undertake preventive measures to block attacks. Employees must know how to handle sensitive data. They need to understand how they can easily become victims of fraud, phishing attacks, and ransomware. Make sure all employees attend security practices training at least once or twice a year.

Purchase Cyber Liability Insurance
Since data breaches have a crippling effect on most organizations, it pays to have a good cyber liability insurance policy in place. Make sure your policy is ideal for your particular company and its unique risks. Cyber liability insurance doesn’t stop malicious attacks, but it covers the hefty cost of breaches and data theft.

Now more than ever, data breaches have become a pressing issue. Without comprehensive cyber liability coverage in place, businesses risk losing everything. Cyber liability insurance covers the cost of forensics investigations, monetary losses experienced because of network downtimes, the cost of managing a crisis, legal expenses, and the cost of credit monitoring.
These are some of the most commonly reimbursed expenses. Policies can also be tailored to offer additional coverage.

Today, cyber security is a real threat to businesses of all sizes. Companies, therefore, need to invest in cybersecurity infrastructure to stay ahead of those that threaten organizations.

All information provided in this blog is for informational purposes only. The sources used are presumed accurate. CalSurance Associates, Brown & Brown Program Insurance Services, Inc. and Brown & Brown, Inc. will not be liable for any errors, omissions, losses, injuries or damages arising from its display or use and will not assume responsibility for any misguided information. No guarantees are implied.

5 Tips to Prevent Errors & Omissions for Your Registered Investment Advisor (RIA) Firm

Registered Investment Advisors, or RIAs, are in the business of helping their clients take appropriate risks in order to enjoy the rewards that investing can provide. By comparing the risk with the potential reward of a given investment and aligning that with a client’s investment objectives, RIAs help to grow and manage their clients’ wealth.

When you take a risk, there is always the possibility that things will not turn out as planned. In addition, everybody makes mistakes. This is why it’s important for RIAs to take steps to prevent errors (things you did that you shouldn’t have) and omissions (things you should have done that you didn’t). These five tips can help.

1. Understand your clients. Doing a thorough fact find before you make a single recommendation is critical. Collect as much information as you possibly can about their current situation and what they hope to accomplish, and document everything you find. Providing your client with a written summary of what they’ve told you and asking them to sign it will prevent many claims.

2. Do your due diligence. Before you make a recommendation to a client, make sure you understand the risks of the investment so you can explain them to the client. Then, make sure the client understands all risks involved by asking your client to explain them to you.

3. Document everything. Often, you will find that a client does not remember everything that was discussed at a meeting, particularly the parts they don’t really want to hear. In many cases, you will find that simply reviewing your notes from the meeting with the client will show them that you did, in fact, explain that alternative investments are riskier than money market funds, or that their IRA that’s invested in mutual funds will not grow as fast as the S&P 500.

4. Keep an eye on your technology. RIAs are as vulnerable to data breaches as any other organization. If your computer system is hacked, you could be liable for costs associated with any theft of personally identifiable information. Even if your data is compromised unintentionally and your clients don’t suffer any financial loss, you may be required to provide credit monitoring.

5. Address any complaints immediately. By talking openly with an unhappy client, you may be able to avoid having to go through regulatory channels to resolve the complaint. If you ignore a client complaint, you can be sure they will escalate the matter to the point where it becomes a legal or regulatory issue.

The regulatory landscape for RIAs is becoming more and more demanding, and clients know this. They know that they have the right and the ability to take action if they feel they have been treated unfairly. By maintaining good client relationships, ensuring transparency in all your dealings, and addressing any issues that clients raise promptly, you may be able to prevent your business from being the target of an E&O claim. Sometimes, however, no matter how diligent you are, you may find yourself the subject of a claim. Be sure that you’re adequately insured.

Regulatory requirements do not always indicate that RIAs need E&O insurance. However, any RIA who doesn’t maintain it is playing with fire. Some RIAs will try to do a cost benefit analysis to justify the premium. But taking the total amount that all RIAs pay in claims and dividing by the number of firms is flawed logic. You need to protect yourself against the largest claim, not the average claim, in order to avoid a catastrophic loss.

Preventing a claim in the first place is always preferable from having to defend yourself against one. But if you do find that someone has made a claim against you, having insurance to fall back on will give you peace of mind.

All information provided in this blog is for informational purposes only. The sources used are presumed accurate. CalSurance Associates, Brown & Brown Program Insurance Services, Inc. and Brown & Brown, Inc. will not be liable for any errors, omissions, losses, injuries or damages arising from its display or use and will not assume responsibility for any misguided information. No guarantees are implied. 

The Challenges of Multi-Cultural Clients

Dealing with the differing cultures in our communities provides great opportunities for the insurance agent, but presents a number of dangers from an E&O perspective. Insurance carrier studies have confirmed that the vast majority of claims against agents result from either a lack of communication or misunderstanding between the agent and the client. The potential liability exposure related to miscommunication is exacerbated if a language barrier exists.

The primary goal for an agent in such situations is to find a means to effectively communicate with his customer in order to understand their insurance exposures, what coverage they are requesting, and make certain that they understand both the product and the process. Just as in any other client communication, documentation is extremely important.

It is preferable that all written material be in English to avoid potential misunderstanding related to differences in dialects within a language. Many agencies doing business in ethnically diverse areas maintain multi lingual staff to assist in communicating with members of those ethnic groups prevalent in the community. In other situations the customer maybe encouraged to enlist an English speaking adult friend or relative to act as a translator to aid in ensuring that both agent and customer clearly understand the issues and answers. Non-English speakers as well as interpreters may have particular difficulty understanding terminology unique to the insurance industry and the agent must take the necessary time to explain the process, application questions and coverages, and look for any signs that either the customer or the interpreter is confused or does not understand the information being conveyed or requested.

Using an interpreter can be extremely helpful in asking those questions necessary to ascertaining the coverages required and obtaining answers to the application questions. However, the application itself should always be completed by agency staff. The customer, through the interpreter, should then be asked to review the application to ensure that the information supplied has been correctly entered. Contact information for the interpreter should be maintained in the client file to help in resolving any issues that come up during the client relationship.  Always document the items discussed with the client through the interpreter.

Taking the time to implement the steps outlined above will help mitigate the potential E&O exposures and maximizing the potential benefits of establishing a multi-cultural agency.

All information provided in this blog is for informational purposes only. The sources used are presumed accurate. CalSurance Associates, Brown & Brown Program Insurance Services, Inc. and Brown & Brown, Inc. will not be liable for any errors, omissions, losses, injuries or damages arising from its display or use and will not assume responsibility for any misguided information. No guarantees are implied.

E&O Prevention

Take a look at the below claim scenario to see how you may prevent errors & omissions while conducting business:

Claim scenario: A restaurant and bar owner asked his agent to replace his liability insurance coverage which was being non-renewed by its current carrier. The agent located a market and replaced the coverage for the insured. Unbeknownst to the agent, the policy that he placed contained an assault and battery exclusion. The insured’s prior policy did not contain such an exclusion but the agent never requested a copy of the policy. The insured requested that the agent get the same or better coverage than the expiring coverage provided. The agent represented that the replacement coverage matched the prior coverage but he never reviewed the policy and never pointed out this exclusion. Later that year, the insured’s bartender was involved in a physical altercation with a patron. The patron was injured by the bartender and, as a result, the insured was sued over the incident. When the insured reported the claim, it was denied based on the assault and battery exclusion on the policy. As a result, the insured was surprised to learn there was no coverage for this claim and thus brought a claim against his agent for failing to provide adequate coverage.

Loss prevention tip: When a client requests the “same” coverage as his or her current policy, be sure to thoroughly review the current policy and ensure that the replacement coverage adequately matches the coverage being asked for by the client.

All information provided in this blog is for informational purposes only. The sources used are presumed accurate. CalSurance Associates, Brown & Brown Program Insurance Services, Inc. and Brown & Brown, Inc. will not be liable for any errors, omissions, losses, injuries or damages arising from its display or use and will not assume responsibility for any misguided information. No guarantees are implied.

Your Files Can Help - or Hurt

Will your files help you or hurt you when it comes to E&O? Take a look at the below claim scenario and risk management tip to learn how you may protect yourself with regards to your files.

Claim Scenario: An agency's customer claimed the agency had committed an error in handling his insurance and retained an attorney who subpoenaed "any and all" of the agency's customer files for review. The attorney's goal was to determine whether there were discrepancies in the manner in which the agency handled their client's insurance needs. The agency had no written procedures regarding file handling or business processing, and no formal internal quality control or auditing program to monitor adherence to such procedures. Without formal procedures in place the agency was unable to effectively object to the breadth of the subpoena, resulting in over 1000 customer files being turned over to the claimant's attorney. After reviewing and comparing those files to the claimant's, the attorney discovered multiple inconsistencies in file documentation including the manner in which coverages were offered, written, and documented. As a result he was able to present a compelling case that the agency had discriminated against and breached its duty to the client at trial, resulting in a large adverse verdict against the agent.

Risk Management Tip: Your agency's file documentation is often its first and best line of defense in the event of a claim. This loss could have been avoided had the agency developed, implemented and monitored an internal quality control (QC) program including office procedures regarding documentation of the processing of business. QC Procedures should cover subjects including binders and certificates of insurance, records management and disposal, telephone, claims handling, mail and e-mail, and cash management to name a few. Your quality control program should also include standardized form letters  and in-house forms regularly used by the agency. Even with such procedures in place, the agency must be able to prove that they are followed consistently by all employees and that compliance is monitored on a regular basis.

A formal quality control program including a written office procedure manual should be one of the cornerstones of your agency's risk management program.

All information provided in this blog is for informational purposes only. The sources used are presumed accurate. CalSurance Associates, Brown & Brown Program Insurance Services, Inc. and Brown & Brown, Inc. will not be liable for any errors, omissions, losses, injuries or damages arising from its display or use and will not assume responsibility for any misguided information. No guarantees are implied.

Premium Financing Woes

Claim Scenario:

John and Jane Doe, an extremely wealthy couple, met with their insurance agent who advised that $10 million in life insurance coverage would be appropriate given their financial status and estate planning needs. He recommended a whole life policy that earned dividends and accumulated cash value. Given the couple's age and health concerns, annual premiums for the policy were determined to be approximately $275,000.When the Does advised the agent that they were unable to pay the premiums out of pocket and unwilling to liquidate substantial portions of their investment portfolio to do so he recommended premium financing. Under the plan he outlined for the Does, premiums for the first few years could be borrowed, with future premiums paid by accumulated cash values of the policy. The agent backed up his recommendation with a professional presentation provided by the premium financing company, and the Does agreed to finance the premiums for the first five years of the policy.

Five years later the Does, having incurred loans of over $1.6 million plus interest, discovered that the policy's earned dividends were insufficient to pay the premiums on an ongoing basis, and filed claims against the agent, the carrier, and the financing company. Although the agent responded that he had not guaranteed any level of accumulated cash value or that it would be sufficient to pay premiums after five years he was able to produce no written documentation other than e-mails characterizing the financing scheme as "solid" and "extremely reliable".

Risk Management Tips:

Claims related to premium financing generally involve relatively large amounts as the involved policies have high limits and premiums to match. In many cases collateral is aggressively sought by the financing company and often ultimately lost. Given the foregoing, full disclosure of the risks and mechanics of the transaction must be made to the client and comprehensive documentation provided and maintained by the agent. Agents should consider requesting involvement of the client's own legal counsel to ensure that the financing structure is proper and understood by the clients. Doing so will provide additional protection to the agent in the event of a claim. Bear in mind that in many jurisdictions promoting premium financing may be considered as creating a special or fiduciary relationship with the client which may in turn serve to elevate the agent’s professional standard of care and disclosure.

All information provided in this blog is for informational purposes only. The sources used are presumed accurate. CalSurance Associates, Brown & Brown Program Insurance Services, Inc. and Brown & Brown, Inc. will not be liable for any errors, omissions, losses, injuries or damages arising from its display or use and will not assume responsibility for any misguided information. No guarantees are implied.

Beware Ransomware

Ransomware is malware that denies users access to their own device. It is increasingly showing up on mobile devices. Mobile ransomware infects the victim's phone by blocking access to apps while displaying a message explaining how to pay the demanded ransom. Various forms can lock the keys and replace the home screen with fraudulent official warnings which state that the ransomware recipient broke the law by visiting illegal websites. The ransomware shows screenshots from the illegal website and the user's browser history, and demands a $500 fine. Attackers are indiscriminate in selecting victims, who simply need to click on the wrong link on a smartphone to be infected.

To defend your agency's devices from ransomware and other malware:

• Password protect devices.

• Update software regularly. Malware is constantly being modified and improved. Outdated software simply won't stand up to more advanced malware.

• Avoid questionable downloads. If you don't trust the source of a download, don't download it. Otherwise, you're inviting an attack. Beware of app reviews; many fake ones seek to give you confidence in malicious apps.

• Employ mobile security. You may have the latest spyware and virus blockers on your agency desktops, but do employees have the same on their tablets, phones, and other portable electronics? If not, once connected to your network, these devices may leave it vulnerable to breaches. Establish mobile and employee owned device policies to make certain employees don't create unguarded network access points.

• Don't allow employees to access sensitive data through unsecured connections, such as a local fast-food franchise's or coffee shop's free Wi-Fi. Public Wi-Fi hotspots are especially prone to malware.

• Use encryption software. Unencrypted company devices can be "mined" for company data and information for sale to competitors and provide easy access into company files and email. Enforce encryption policies to mitigate this risk.

All information provided in this blog is for informational purposes only. The sources used are presumed accurate. CalSurance Associates, Brown & Brown Program Insurance Services, Inc. and Brown & Brown, Inc. will not be liable for any errors, omissions, losses, injuries or damages arising from its display or use and will not assume responsibility for any misguided information. No guarantees are implied.