Please ensure Javascript is enabled for purposes of website accessibility
The IIAW Blog
Blog Home All Blogs

Virtual University - Is the Insurance Policy Affected If the Business Opens Against a Governor's Orders: The Facts About Supposed "Illegal Acts" Exclusions

Posted By IIAW Staff, Tuesday, June 9, 2020

 

 

gavel

States have gone to war against some municipalities over COVID-19. Executive orders currently in place in many states still bar certain businesses considered “non-essential” from opening; but some municipalities have told their respective governors they are opening the community regardless.

 

Governors finding themselves in these situations have undertaken various tactics to prevent these municipalities from carrying through with their reopening plans. North Carolina’s governor told a county that all state funding would be cut if they opened, the county capitulated. Other governors, seemingly out of options, have undertaken a unique and indirect tactic – misrepresenting insurance coverage.

 

Although this sounds like an odd tactic, the goal is to scare the business owners into remaining closed. If the governors can successfully dissuade the business owners, it doesn’t matter what the city or county does, businesses won’t open solely out of fear.

 

Governors and their representatives are publicly stating that if a business opens in violation of the executive order, doing so places its insurance coverage in jeopardy because of the “illegal,” “criminal” and/or “dishonest” acts exclusions. The problem is, there is enough untruth in these statements to make them lies.

 

Let’s review the truth or half-truths of these claims on a coverage-by-coverage basis. Note, the following analysis  is of unendorsed policy language, endorsements can alter application of this policy language analysis.

 

Commercial General Liability (ISO’s CG 00 01 04 13) 

 

Coverage A – Bodily Injury and Property Damage Liability. 

 

Simply, there is NO illegal or criminal acts exclusion applicable to Coverage Part A. One state knowingly took indecent liberties with the “Expected or Intended Injury” exclusion in its attempt to assert that coverage would be denied.

 

The expected or intended injury exclusion does not act to deny claims resulting from opening against a governor’s orders. This exclusion applies to the actions of an insured that one would EXPECT or INTEND to cause injury such as punching someone in the nose or setting a trap. A reasonable person intends and would expect that someone would be injured by such acts.

 

There does not appear to be an applicable exclusion in Coverage Part A. So, a slip-and-fall incident is covered, a products liability claim is covered, basically anything covered under Coverage A in “normal” times is covered if/when the business opens – even against a governor’s orders.

 

Coverage B – Personal and Advertising Injury Liability. 

 

There is a “Criminal Acts” exclusion appliable to personal and advertising injury coverage. Within Coverage B the specific exclusion reads:

 

2. Exclusions: 

 

This insurance does not apply to: 

 

d. Criminal Acts

 

Personal and advertising injury” arising out of a criminal act committed by or at the direction of the insured.

 

“Personal and advertising injury” is a defined term. Basically, this exclusion applies to activities and actions such as libel, slander, defamation of character, violating a right of privacy, wrongful eviction, false arrest and other such actions. If any of the acts listed in the definition is done in violation of a law, there is no coverage.

 

If the store owner calls the governor a nasty name, that would be excluded; but only if doing so is considered a criminal act. Thus, this exclusion is a non-issue.

 

Coverage C - Medical Payments. 

 

In short, there are no exclusions for “illegal,” “criminal” or “dishonest” acts in Coverage C. Where the insured had coverage before the orders, they still have coverage.

 

Commercial Property

 

Within ISO’s CP 00 10 10 12 - Building & Personal Property Coverage Form there is one reference to “illegal.” The policy excludes coverage for “contraband, or property in the course of illegal transportation or trade.” Although this is intended to exclude coverage for products that are illegal to import, export or sell, the wording may present problems if the insured opens against government orders.

 

Two key questions arise:

 

• Is operating in defiance of an executive order a criminal act (making it illegal); and

 

• If it is a criminal act, does ignoring an executive order mean the operation is “in the course of” illegal…trade?

 

Illegal or Criminal Act

 

An illegal act is one that is forbidden by law. In the absence of this pandemic, the reasonable assumption is that the insured is a legal operation and was operating legally. Whether an executive order disallowing the operation of a business is given the effect of or is equivalent to a law is a question for the courts.

 

If operating in defiance of an executive order is forbidden by law (making it a criminal act), will the “law” be upheld in court? Reports are that at least one state court has determined that stay-at-home orders are not legal. Whether other courts will follow this lead is unknown.

 

For sake of this analysis, let’s make the worst-case assumption that operating in defiance of an executive order is considered a criminal or illegal act. If operating against a lock down order is a criminal act, this is strike one towards the lack of property coverage.

 

However, given the anecdotal evidence, these orders do not appear to hold status as a law. Governors can make emergency declarations that can be enforced to a certain degree; but if they were, in fact, laws and the actions were illegal, the governors would not need to use scare tactics and/or threats such as the revocation of the business’ operating license, they would simply have the owner arrested.

 

Additionally, laws cannot generally be created by edict. A law (statute) generally requires approval of both houses. Yes, as stated, an executive does have broad powers during a declared emergency, but that does not include the ability to create a law or statute.  

 

Lastly, in general the US is designed as a “bottom-up” regulatory model. The only reason the NC county succumbed to the governor’s orders was because the state threatened to take away state funds. Evidently, opening is not illegal, it’s just against the governor’s wishes contained in the emergency declaration. (It’s unlikely that any level of government would want the executive to have the ability to create law by edict.)

 

If the actions are NOT criminal, coverage for the property is NOT excluded.

 

Is Operating in Defiance of the Order “In the Course of” Illegal Trade

 

“In the course of” can be defined to mean “during a specified period.” Other definitions include “in the process of,” and “during.”

 

Black’s Law redirects the definition of “course of trade” to “trade usage.” “Trade usage” redirects to “usage.” Under “usage” is found the meaning of “trade usage.” A long way around to the information needed.

 

Trade or trade usage in Blacks Law essentially means the common methods of operation. Other sources define trade to mean a business or occupation entered into for profit.

 

Given the above, it appears any business operating is “in the course of trade.” If operating in defiance of a governor’s order is illegal (a criminal act), the business is “in the course of illegal trade.” Operating in the course of illegal trade negates property coverage during the time of illegal operations.

 

The commercial property form does not limit the application of this wording to real or personal property – the wording applies to all property.

 

Unfortunately, there is not a “fix” for this possible exclusion of coverage. The lynchpin or key factor to whether the property is covered or excluded from coverage is whether the operation is illegal. If opening is not illegal, there is coverage; if opening is a crime, there is no property coverage.

 

ISO’s CP 10 30 09 17 - Causes of Loss - Special Form contains an exclusion for dishonest or criminal acts; however, the wording applies to actions undertaken by the insured to damage or destroy covered property. This exclusionary wording does not apply to the operation of the business within or outside the allowances of an executive order.

 

Is coverage excluded for property losses when the business is operating in defiance of an executive order? This may ultimately be a question for the courts; but it appears:

 

If a governor’s decree does NOT carry the weight of a law, it’s unlikely this wording would apply – meaning there would be coverage regardless the governor’s wishes;

If a governor’s decree IS given the weight of a law, making the act of opening illegal, the insured may lose property coverage; or

If a governor’s declaration is granted the weight of a law, but such decree is struck down by the courts, coverage may be reinstated.  

From a property coverage perspective, the question of coverage is murky. Carriers may or may not attempt to spit hairs to deny or provide coverage.

 

Workers’ Compensation and Employers’ Liability

 

Does NCCI’s workers’ compensation policy respond to cover an injury to an employee arising out of and in the course and scope of employment if the business is operating against that orders of the state? Workers’ compensation is a unique coverage, the policy responds in accordance to the guidelines of the state’s workers’ compensation statutes. To answer the question, the statute must be reviewed. If statute does not exclude protection to employees working in violation of the law, the work comp policy responds and pays for injury – regardless of the executive order.

 

Because workers’ compensation is for the benefit of the injured worker, it is unlikely any state law would disallow coverage for any work-related injury, even if the business is operating against an executive order. This violates the spirit and intent of the coverage. In fact, some work comp statutes specify that it applies to workers whether lawfully or unlawfully employed.  

 

The respective state law must be reviewed, but such limitation or exclusion is unlikely to be found. Furthermore, there is no wording in the policy itself that would allow the insurance carrier to seek repayment from the insured. Thus, opening in defiance of an executive order does not appear to jeopardize workers’ compensation coverage.

 

Part Two – Employers’ Liability does contain exclusionary wording regarding employment in violation of the law. The policy reads:

 

C. Exclusions

 

This insurance does not cover:

 

3. bodily injury to an employee while employed in violation of law with your actual knowledge or the actual knowledge of any of your executive officers.

 

Is the employment in violation of the law or is the operation in violation of the law? The apparent intent is to exclude employers’ liability protection for those employed in violation of federal guidelines regarding status as a legal worker in the US. Given the intent, this exclusion does not appear to apply. But remember, this is regarding the employers’ liability protection only, this wording does NOT apply to workers’ compensation.

 

Business Auto (CA 00 01 10 13-Business Auto Coverage Form)

 

There is no illegal, criminal or dishonest act exclusion in Section II – Covered Autos Liability Coverage of the business auto policy (BAP). 

 

Like the CGL, there is the Expected or Intended Injury exclusion; but, as in the CGL review, this is irrelevant in regard to this conversation.

 

Operating in disregard to the executive order does not appear to negatively affect the liability coverage provided by the business auto policy. If the BAP did exclude illegal acts, there would be no coverage for injury caused when speeding, when making an illegal turn or many other actions that are illegal.

 

Neither is there an applicable exclusion under the physical damage coverage. No specific exclusionary wording appears to affect uninsured/underinsured motorist coverage either.

 

Apparently, the business auto policy responds regardless of any orders in place.

 

Professional Liability and Errors & Omissions Policies

There is no “standard” professional liability or errors and omissions (E&O) contract, thus each will require separate review. However, most of these forms do contain exclusions related to criminal conduct. But does such wording exclude coverage simply because the business is open regardless of the governor’s declarations?

 

Given the intent of coverage, professional liability and E&O policies cover the professional activities of the insured and the harm caused by the improper practice of those activities. Opening against the wishes of the governor doesn’t seem to entail the professional activities, it is a business decision.

 

For example, assume insurance agencies were not considered essential businesses and were forced to close. If an agency owner decided to reopen in spite of the order, any act or failure to act for or on behalf of a client may result in an E&O suit. 

 

IF opening is a criminal act (it’s not clear if such act is criminal), does that activate the criminal acts exclusion?

 

Opening in defiance of any order has no correlation to the erroneous act of the agent. They are separate and distinct incidents. One has no relationship to the other.

 

This same logic appears to apply to all other activities covered by either a professional liability or an E&O policy. Opening against the wishes of the governor does not appear to affect coverage.

 

However, some governors have threatened to revoke and some already have revoked certain professional licenses. If holding a professional license is a condition of the professional liability or E&O coverage, then these coverages appear to be in jeopardy.

 

Most occupations that require professional liability or E&O coverage also require a license to provide the service (not the same as a business license). 

 

If the government, through its police powers, revokes a professional license, the coverage may cease to exist for any future events. Revoking a professional license is not the same as revoking a business license. For agents, this is revoking the agent’s P&C license, not the agency’s license to exist. Whether such revocation is allowed by law is not a topic for discussion in this article.

 

Executive or Management Liability

 

Directors and Officers (D&O), Employment Practices Liability (EPL) and Fiduciary Liability are the three most commonly discussed executive or management liability coverages. Like professional liability and E&O, there are no “standard” forms. Likewise, these forms generally do contain exclusions related to illegal, criminal, and/or dishonest acts.

 

Following are examples from two separate management liability forms:

 

Exclusions:

 

The Insurer shall not be liable to make any payment for Loss in connection with 

any Claim made against any Insured:

 

A. alleging, arising out of, based upon or attributable to:

 

                             (2) the deliberately fraudulent or criminal acts of an Insured; provided, however, this exclusion shall only apply when it is finally adjudicated that such conduct occurred;

 

Exclusions:

 

We will not pay for any “loss” resulting from any “claim”:

 

A. Based upon, attributable to, or arising 

     in fact out of any dishonest, 

     malicious, fraudulent or deliberately 

     criminal act or any willful violation of 

     any statute or regulation;

 

Notice the key words common to both exclusionary examples, “based upon,” “attributable to” and “arising out of.” Neither exclusion applies to any management liability suit unrelated to opening against the will of the governor. The only suits that might be excluded are management liability suits directly related to the violation of the decree; otherwise, the policy is unaffected.

 

Findings

 

Overall, opening in defiance of a governor’s decree appears to have little effect on insurance coverage. Questions arise in two policy types:

 

Commercial property; and Professional liability / E&O policies.

If, and this seems to be a big “if,” the act of opening is a criminal act, the insured’s commercial property coverage may be compromised. And if the state revokes the business owner’s professional license (not business license), the professional liability or E&O policy may exclude coverage.

 

The fear tactics being used by some states surrounding insurance coverage are largely unsupported. Not being lawyers, no agent should advise on what constitutes a criminal act, but agents can and are within their licensure to explain insurance language. 

Tags:  illegal acts exclusions  insurance policy  virtual university  wisconsin insurance blog 

PermalinkComments (0)
 

Coverage for Property Damage Caused by Rioting, Civil Commotion and Vandalism

Posted By IIAW Staff, Thursday, June 4, 2020

Agents across Wisconsin help businesses prepare for the unexpected.  Depending upon the nature of the property and optional coverages purchased, most instances of civil disturbance can trigger coverage. Of course, a personal consultation with your Insurance professional pre-loss is the best way to strategically manage risk and to be comfortable that you are protected.  Many businesses tend to underestimate the level of coverage they need or even decline coverage for budgetary reasons only to be surprised after a loss. Keep in mind that all policies are different as each insurance company can add their own nuances.

  

Click here to access the full document.  Email kaylyn@iiaw.com to customize this document with your logo for your agency's use. 

Tags:  civil disturbance  insurance claims  riots  risk mitigation  vandalism 

PermalinkComments (0)
 

What You Do and Don't Do When A COVID-19 E&O Suit Arrives

Posted By Kaylyn Zielinski, Wednesday, June 3, 2020
Updated: Thursday, May 21, 2020

Magnifying Glass on Paper

COVID-19 has changed the agent’s errors and omissions (E&O) landscape for the next several months. While we can’t predict the number of agents who may have E&O claims at this point, the odds are high that if you don’t get sued, an agent you know will.  

Proper actions and reactions when threatened or served with an E&O suit arising out of this pandemic are of utmost importance. Once a threat is made or a suit filed, the allegedly improper act or omission has already occurred - don’t worsen the situation by making bad decisions. Remember these “dos” and “don’ts” if you find yourself in an E&O situation. 

 

Let’s start with the first MAJOR don’t: Do not overreact to the claim. Understand that there is no shame in being accused of an error or omission, especially given the weird aspects of this COVID-19 situation. Even the best practices and procedures may not protect the agency right now. Anger, either toward yourself or others, is counterproductive and serves only to increase the weight of the situation.

 

Do Not Do These Things

 

Do not, under any circumstances, alter the client’s 

 file. What’s done is done. Making changes creates the appearance that there is something to hide. Accept what is there and prepare for what comes next. 

 

Do not discuss the claim with anyone other than the claims representative, defense attorney or any other member of the office directly involved in the claim. The only individuals who need to be involved in any discussion related to any E&O claim are those personnel directly related to the care of the plaintiff’s account and those defending the agency.

 

Do not make any admission of liability or wrongdoing; and do not offer or make payment. 

 

Do not provide any written or recorded statement to the plaintiff without your E&O carrier’s claim representative present. 

 

Do not allow inspection, copying or removal of client files and records without consulting with your E&O claim representative. 

 

Do not try to manage the claim on your own. The E&O carrier has more experience and is better able to manage the process. Allow those with more experience and resources to manage the suit.

 

What to DO

 

What should your immediate and ongoing “do’s” be following an E&O claim? 

 

Notify the E&O carrier of a “claim” or potential claim immediately. Provisions in the E&O policy require the insured to notify the insurance carrier as soon as practicable following the receipt of a “claim” or any indication of a potential claim. 

 

Listen for “trigger” words or questions. Some words, phrases or questions just don’t seem normal, in fact, they sound like something a lawyer would say. If your client uses terms like “duty,” “breach” or “breach of duty,” assume they have been talking with a lawyer. Also pay attention to the questions that are asked, does it seem like they are trying to trap you into admitting something? Notify the carrier of a potential claim if words or phrases seem to indicate a lawyer is already involved. 

 

Assume every conversation is being recorded. Regardless of the legalities of recording a conversation, assume your answers are being recorded. Pick responses carefully.  

 

Gather and organize all pertinent records related to the insured and the situation. But when doing this, remember the second “don’t” - don’t alter them. The claim representative needs all the information to conduct an investigation and prepare and provide a proper defense.

 

Write down all the information known about the incident surrounding the claim. Each member of the team directly related to the client and the incident giving rise to the E&O claim should record all they can remember about the incident or incidents on which the claim is based. This should be a factual narrative statement in chronological order. Leave out opinion and emotion. This is the time to act like you are talking with Joe Friday from Dragnet – just the facts. Who, what, when, where and why is all that should be contained in these accounts. 

 

Assign one person as the claim leader. One person should be assigned the duty to report, track and manage all COVID-19 E&O claims within the agency. 

 

Cooperate with the E&O carrier. This includes providing information and facts that look bad for the agency. Hiding or hedging certain aspects of the facts surrounding the situation on which the claim is based creates distrust between you and your insurer; it also makes the agency look guilty. The insurer is on your side.

 

Make sure you comply with all policy conditions and requirements. If the agency fails to comply with all E&O policy conditions, coverage may be jeopardized.

 

Hopefully, You Will be Spared

 

Hopefully, you and your agency will not need this information. If not, that’s great. But given the uncertainty of this current situation, it’s better to be prepared.

 

Tags:  coronavirus  COVID-19  errors and omissions 

PermalinkComments (0)
 

COVID-19 and Workers' Compensation in Wisconsin

Posted By IIAW Staff, Monday, June 1, 2020

Calculator

By: Bernard Rosauer, President of Wisconsin Compensation Rating Bureau

 

By this time many of us have attended national webinars, read national periodicals containing articles regarding Covid-19 and the exposure it may bring to the workers’ compensation industry.

 

Logic 101 teaches us a basic flaw in logic is the hasty generalization. The problem with consuming national information and applying it to one state is obvious. In addition, early to market national predictions based on inadequate data often wastes time and  miss the mark… by a lot. 

 

In some cases, particularly in specific states where laws are changed or enacted quickly , generalizations regarding the specific state are reasonable and necessary. Otherwise, unless each state is looked at with a critical eye and a gathering of state specific data, reports with a wide span are less useful if not misleading when applied to one state.

 

Here’s Wisconsin specific information you can rely on.

 

Wisconsin Specific Workers Compensation Impact of Covid-19

 

Wisconsin Compensation Rating Bureaus transition from office to home.

 

Your Bureau’s transition was seamless. There was no change in service availability and work was processed on time despite the many Covid-19 related phone calls that added to our workload.  

 

As president of the organization, I am proud of the entire staff, the flexibility and extra hours worked to ensure availability, and timely decision-making for

members, employers, agents and all other stakeholders. Our Rating Committee, Governing Board and all employees really did step up and I acknowledge all of them and their communal effort.

 

Claims Received

 

The WCRB does not collect real time data regarding claims.  Still, we believe it is important to understand, at least anecdotally, what volume and types of Covid-19 claims are being presented by first responders, healthcare workers and other workers deemed essential.  A hasty generalization made by using countrywide statistics could have led us in the wrong direction.  With national reports predicting up to a 50% decrease in overall claims activity (because of the unemployment plunge) through April 2020, Wisconsin has seen a decrease of approximately 25% in new claims opened.

 

WCRB is also tracking claims received in the first responder worker categories  defined by the statutory changes in Wisconsin Workers Compensation Act that allow presumptive but rebuttable claims be honored by a defined list of first responders and healthcare workers. This will help support estimates for rating purposes at a later date.   

 

At a high level and at this period of time, these Covid-19 exposures are not of such a great volume that an overall impact on rate impact will be great. Of those reported the vast majority, approximately 95%, had treatment consisting of diagnosis then staying home and waiting for the illness to pass.

 

‘Furloughed but Paid” Workers

 

With reports of employers paying workers out of goodwill while those workers were furloughed, something needed to be done to remove the payroll for ‘Furloughed but Paid’ workers from eventually being used in rating the risk.

 

Wisconsin became the first state in the country to construct a filing with rules that granted employers relief knowing that they would not be charged a rate for their goodwill.  The Bureau developed unit statistical code 0012 which was approved by Wisconsin’s OCI in less than a week (that sounds easier than it was.)  NCCI and other rating bureaus subsequently changed their filings to include 0012 or another code that enabled employers to place payroll for workers who are not working and not apply a rate toward that payroll.

 

Covid-19 and Worker’s Compensation in Wisconsin Updates and FAQ’s

 

For a full list of FAQ’s regarding Covid-19 in Wisconsin, visit www.WCRB.org and look for the ‘Click Here’ link for Covid-19 Updates and FAQ’s.  

 

Here are some of the MOST frequently asked questions:

 

Who is considered a paid furloughed employee for WI worker’s compensation insurance purposes? 

 

By definition, a paid furloughed employee is one who is still being paid where they have been given a temporary layoff, an involuntary leave or another modification of normal working hours for a specified duration. This is for payments made by the employer during the paid furloughed time under the Governmental Emergency Order regardless of when it was earned.

 

(It is important to understand that Paid Furloughed Workers code 0012 can only be used when absolutely no work is being performed for the employer. In addition, it imperative that the employer keep clear and irrefutable records when reporting employees as paid while on furlough.)

 

What if Code 0012 is used fraudulently by an employer to falsely lower WC premiums?

 

Code 0012 can ONLY be used if an emergency order is issued by a governmental official. Code 0012 is defined as: Paid Furloughed Workers During A Governmental Emergency Order Impacting Employment. If a governmental emergency order is not in effect, code 0012 cannot be used. During a declared government emergency order, improper use of this code or the use of false or misleading documentation in support of

reallocation of payroll to this code is a violation of the law and may subject the employer/owners to fines, penalties and/or imprisonment for fraud.

 

If a paid furloughed employee continues to be paid by their employer, is their payroll excluded from the employer’s worker’s compensation insurance 

premium? 

 

If an employer continues to pay furloughed employees their normal wages and the employer keeps separate, accurate and verifiable records, the payroll will not be included for the basis of premium.

 

How is the payroll to be split when an employee works part of a day and is furloughed part of the day?

 

If the employee is performing work duties for any portion of the day, no division of payroll is acceptable.

 

Will COVID-19 claims be included in my future experience rating modifications?

 

Wisconsin procedures will be consistent with those previously applied to other Extraordinary Loss Event catastrophe codes. Valid claims coded with catastrophe code 12 and reported to Wisconsin will be excluded from experience rating calculations for any employer(s) incurring one or more such claims.

Tags:  COVID-19  payroll  workers' compensation 

PermalinkComments (0)
 

Single Entry Multi-Carrier Interface (SEMCI): An Essential Instrument for Agents

Posted By Matt Banaszynski | CEO of IIAW, Monday, June 1, 2020

Hands Typing on Computer

For decades independent agents have heard the term, “SEMCI”, which promised to connect them and their clients to their insurance companies faster and more efficient through a single system. Agents were told they would be able to obtain multiple quotes from one application/entry allowing them to easily compare carriers to their customers. The idea of single-entry multi-carrier interface seemed so simple yet proved to be an enormous challenge for the technology juggernauts that power the insurance industry for decades. But WHY?

 

As insurance carriers and independent insurance agents alike have upgraded their technology stacks over the years, these advancements were built on antiquated equipment and tech.  It became more and more challenging over the years to leverage 

technology that burst onto the scene with the advancement of the internet and upload and download. Yet, the industry never truly reached

SEMCI-status across all lines of business. Rising technology costs for insurers, the inability to upgrade existing technology, low adoption and demand by agents, etc. were all blamed for the startling, lethargic rise (*cough) of SEMCI over the decades. Granted gains were certainly made in the personal lines arena where commoditization demanded it.

 

Over the last several years, new insurtech startups such as the Internet of Insurance, Tarmika, SEMSEE, Bold Penguin and more have burst onto the scene challenging the status quo and pushing the industry to new heights.

 

Insurance carriers such as ACUITY, EMC, CNA, Liberty Mutual, West Bend Mutual and more are aligning with technology companies to develop or enhance their Application Programming Interfaces (APIs) to deliver SEMCI to their independent agency force, while some are finding it more challenging.

 

“The promise of SEMCI is fantastic: single-entry, multi-carrier. It has the potential to be a huge time saver for agents and an easier way for carriers to grow, but it turns out that it’s really, really hard to do it right - in practice”, stated Jason Kolb Founder and CEO of the Internet of Insurance.

 

Jason continued, “Most often what happens is “single-entry, some carriers” because most carriers just aren’t equipped to quote programmatically via Application Programming Interface (API).

 

And even then, some of the carriers that do have API’s may be constrained by the lines and classes they can support, which leads to a frustrating experience for agents, lower growth than expected for carriers, and an underwhelming experience for policyholders.”

 

In May of 2019 at the IIAW’s 120th annual convention, Ansay and Associates using DAIS’ Internet of Insurance (IOI) submitted a commercial business package virtually (without APIs) to EMC and Western National underwriters live on a stage in front of 500+ attendees. Using the IOI and its Single Entry Multi-Carrier Interface, business was submitted, underwritten, quoted and bound. It was a revolutionary moment for an industry that had been promised full SEMCI for decades but never truly got to experience it.

 

The Internet of Insurance uniquely offers 5 (soon-to-be 6) distinct ways for carriers to connect, as opposed to just the typical rating API connection. “This all represents some extremely heavy technical lifting, but we decided to do it to support all carriers and all lines, regardless of the carrier’s technical sophistication,” stated Kolb. “Single-entry, all carriers. Then we paired that with a suite of powerful tools to help agencies grow and be more efficient: an agency storefront for policyholders, a cloud environment for handling mid-market submissions and underwriter referrals, real-time collaboration and notifications, and so much more, concluded Kolb.”

 

The Internet of Insurance is a unique product of the Internet age, providing full SEMCI to the insurance ecosystem regardless of how advanced or behind an agency’s or carrier’s technology stack is.

 

Technology companies offering SEMCI are racing to provide the independent-agency-system with powerful, modern tools that are built on an 

industrial-strength cloud-native platform that makes data easy for agents and carriers to collect and act on. 

 

Agents must leverage SEMCI to succeed in this new digital age. As ACUITY likes to say,


"Open SEMCI!"

 

Tags:  Bold Penguin  Insurance Bartender  SEMCI  SEMSEE  Tarmika 

PermalinkComments (0)
 

Industry Update: Wisconsin Supreme Court Affirms Agent E&O Win, Strengthens Future Defenses

Posted By Josh Johanningmeier | IIAW General Counsel, Monday, June 1, 2020

 

On May 21st, in Emer’s Camper Corral v. Alderman, the Wisconsin Supreme Court issued a 6-1 majority opinion confirming a rigorous causation standard for negligent procurement E&O claims.

 

The policy at issue? A garage policy from Western Heritage Insurance. Camper Corral claimed its agent promised a $1,000 per-unit and $5,000 maximum annual deductible for hail claims—a peril that Camper Corral had encountered in both 2011 and 2012, leading to six-figure claims and its previous policy being non-renewed. In fact, the new policy had $5,000 per-unit hail deductible with no aggregate limit, which Camper Corral allegedly learned only when a 2014 hail storm damaged 25 vehicles and it incurred $125,000 in deductibles on the loss.

 

In the ensuing E&O litigation, Camper Corral tried to prove its case against the agent based on the fact that a policy with a lower hail deductible was “commercially available” in the insurance market—but Camper Corral did not (and likely could not, based on its claims history) prove that it would have been eligible for such coverage. The trial court found, and Supreme Court agreed, that this was a failure of proof of causation of damages, i.e., Camper Corral could not show the agent’s alleged “negligence was a ‘substantial factor’ in causing its loss under the commercial availability theory without evidence that a policy with the requested terms” was actually available to Camper Corral. According to the Supreme Court, Camper Corral needed to prove that an insurer would actually have sold it the lower deductible policy it claimed it was promised by the agent—and Camper Corral’s owner’s testimony that she was shown a quote was not enough.

 

Camper Corral’s other principal theory was that the agent should have been held responsible under a “detrimental reliance” theory because it relied upon the alleged representation from the agent that he had secured a policy with a lower deductible. According to Camper Corral, if it had it known that its policy actually had the higher deductibles, it would have taken additional steps to protect its inventory. The Supreme Court dispensed with this claim because Camper Corral had introduced no evidence to support it at trial. 

 

The key holding and real win for agents and E&O carriers is the court’s causation holding:

 

"In a cause of action for negligent procurement of an insurance policy, the insured cannot establish the insurance agent’s negligence was a “substantial factor” in causing its loss under the commercial availability theory without evidence that a policy with the requested terms was available to the insured."

 

Emer’s Camper Corral v. Alderman, et al. 2020 WI 46, ¶45. This clear statement of the burden of proof will bolster the defense of future claims in similar cases. Keep an eye on the Independent Agent for a future column breaking down the Camper Corral decision and its impact.

Tags:  Camper Corral v. Alderman  E&O Risk Management  errors and omissions  wisconsin supreme court 

PermalinkComments (0)
 

How-To: Transform Your Digital Presence

Posted By IIAW Staff, Wednesday, May 13, 2020
Updated: Wednesday, April 29, 2020

By: Matt Banaszynski | CEO of IIAW

This article was featured in our May 2020 Wisconsin Independent Agent Magazine. Click here to read the full May 2020 issue. 

The IIAW welcomes Kaylyn Zielinski to the team. Kaylyn has some wonderful tips to share with our readers about digital marketing and using social media for your agency. She has also created a complete Digital Marketing Playbook, which all of our members have access to. Enjoy these quick tips from Kaylyn, the new IIAW Marketing Specialist.

 

person holding cell phone

 

When today’s consumers are looking for insurance, they turn to their phones, computers and tablets to find exactly what they’re looking for at exactly the time they’re looking for it. Consumers are no longer looking in a phone book to find providers in their areas. To capture the attention of these digital-age consumers, you’ll need to show up on their devices. Now, more than ever, you will need to debut on their screens and stick in their minds. There’s no time like the present to develop your digital footprint.


With a proper marketing plan, a website and a social media presence, you can create an online existence that will push your agency ahead of your competitors. The best part of this process is that most digital marketing is free. The biggest investment you’ll face is in the time and the attention you will spend developing your online presence. However, this time investment will pay off.


Your Marketing Plan


A quick Google search for “how to create an online presence” will leave your mind reeling as you decide where and how to start. First, start by creating a marketing plan. If you already have a marketing plan for traditional outlets, it’s time to apply it to today’s new medium by focusing on your website and social media sites. Next, run through your agency’s strengths and develop goals on how you plan to exploit those strengths online. Finally, determine your target audience. As an insurance agent, you may describe your target audience as individuals, families, business owners and commercial businesses in XYZ city or certain area.


Understanding your goals and your target audience will help you further develop content that will put your agency at the forefront of their online searches.

 

Computer with IIAW Website


Your Website


Your website should be the cornerstone for all information coming from your agency. If you don’t have a website already, today’s the day to start. The Big I partners with ITC, Forge 3, Titan Web, Advisor Evolved and Marketing 360.


When creating or optimizing your website, keep these best-practices in mind: 


• Prioritize your top-visited webpages - 

On average users spend about 15 seconds on a website, according to Tony Haile of Chartbeat. Those visiting your website don’t want to have to spend a lot of time to search around. If they have to search, they may go elsewhere (potentially your competitors) to find the information. The most visited webpages should be the easiest to find. If they’re not, it’s time to rearrange your layout.

 • Check your analytics and create content that’s targeted to what your most visited pages are. (Your website host may offer built-in analytics, otherwise, Google Analytics is a helpful tool for reviewing your website stats.)

• Keep visitors engaged by making your website visually appealing.

• Ensure your website is mobile friendly. According to Statistica, over 52 percent of all web traffic worldwide is done on a mobile device.

• Have a complete website. Ideally, a complete website will answer these questions: who, what, when, where, why and how. A customer on your website should have no problem finding the answers to their questions and they should feel compelled to start the process by requesting a quote.

Social Media Icons

Your Social Media Presence


Social media is a great way to freely engage with your audience. You can get to know your clients, and your clients can get to know you too. While there are multiple social media sites you can join, keep these rules in mind across all platforms:


• Keep your pages consistent by having all accounts under the same profile name. Your customers will be able to find you easier by keeping the same name. Along the same lines, make your profile photo the same. We recommend using your agency logo as your profile photo for your business pages.

• Create a publishing schedule and stick with it. Keep your pages relevant by posting up-to-date content on a regular basis.

• Allow your agency’s personality to shine through your social accounts. You want your social media platforms to be the go-to spot for engagement, and the most engaging content is humanizing content. Social media allows you to show the human side of your business and allows you to build a community that others want to be a part of. If it aligns with your brand’s marketing plan, stay away from overly formal content on your pages. You can share formal ideas, but make them fun to understand and/or interact with.

 

Now you have the framework to get started on developing your online presence. Read our Digital Marketing Playbook here

Tags:  digital agency  digital marketing  digital presence  Insurance Bartender  social media 

PermalinkComments (0)
 

Virtual University - COVID-19: Are There Any Weird Homeowners' Coverage Exposures

Posted By IIAW Staff, Wednesday, May 13, 2020
Updated: Thursday, April 30, 2020

By: Chris Boggs | Big "I" Virtual University Executive Director

 

* This article was featured in our May 2020 Wisconsin Independent Agent Magazine. Click here to read the full issue for May. 

Front of a House

 

Currently 42 states are under a “stay-at-home” or some other similar order. However, this does not necessarily keep people in their homes. 

 

People leave their homes for necessities (healthcare, medicine, groceries, take-out orders, etc.) or to exercise. Some work in businesses that have become known as “essential” and are going to work every day. Still others are going outside to visit and/or check on friends and neighbors. 

 

But some are even going inside each other’s homes. There are reports that parties, albeit small, are being held. 

 

This leads to the question: Does having friends over during a state-mandated

stay-at-home order create any insurance issues regarding COVID-19? What about when it’s over? These sound like weird questions.

 

As weird as the questions sounds, the answer may be weirder. If the insured is held legally liable for someone contracting COVID-19, or any other disease, while at a house party, there may not be any coverage extended from the homeowners’ policy. 

 

Don’t believe me? Here is the relevant policy language: 

 

 

SECTION II - EXCLUSIONS

 

E. COVERAGE E - PERSONAL LIABILITY AND COVERAGE F - MEDICAL PAYMENTS TO OTHERS

 

Coverages E and F do not apply to the following: 

 

6. Communicable Disease

 

“Bodily injury” or “property damage” which arises out of the transmission of a communicable disease by an “insured”

 

A Communicable Disease? 

 

COVID-19 is unquestionably communicable; but is it a disease? In a roundabout way, yes. It’s not the virus that causes harm. It’s the disease or sickness that results from the virus. The immune system destroys some viruses before they can cause any harm, but some viruses overpower the immune system and lead to sickness and disease. 

 

Because COVID-19 is a communicable disease, if the insured “communicates” the disease to someone else, the exclusion applies. 

 

Legally Liable

 

If the insured throws a “stuck-in-the-house” party or other gathering and about 14 days later one of the guests is diagnosed with COVID-19, the natural inclination would be to assume the disease was contracted at the party. Once the lawyers begin trolling, the ill person will certainly be convinced to sue the party host asserting that: 

• The host made them sick (read the exclusion, remember, an insured must spread the disease); and

• The homeowner was negligent in and legally, liable for causing the sickness. 

 

To be found negligent in the process of ultimately proving legal liability, the injured person must: 

• Prove the accused homeowner is guilty of “Negligent Conduct.” 

To prove negligent conduct, the injured person must prove the homeowner owed a duty to the injured party and breached that duty owed; 

• Suffer actual monetary damages; and

• Prove the wrongdoer’s “Negligent Conduct” is the proximate cause of the injury or damage. 

 

There are far more nuances and legalities than the above ultimately establish legal liability, but detailing legal liability is not the focus of this article. For more information on what is required to prove legal liability see, “How Does a ‘Person’ Become Legally Liable.”

 

Proving negligent conduct and legal liability often requires court involvement. If: 

• An insured hosts a party during a lockdown

• An insured is contagious; and 

• A guest is sickened by that insured

The communicable disease exclusion somewhat clearly excludes more than just coverage, it also excludes defense. 

 

A Different Situation. A Different Result? 

 

Let’s change the situation. Assume a guest at the party rather than an insured is sick and passes along the little nasty; does this exclusion apply to the homeowner/host? 

 

If the policy is taken literally, which is the expectation, the exclusion does not apply. Notice again that the exclusion applies only when an insured communicates the disease to someone, not when their actions make it possible for the disease to be communicated by and to someone else. 

 

So, the infected and contagious next-door neighbor is invited. During the party she spreads the virus to the other party guests. One gets sick and sues the homeowner. Is the homeowner covered for this suit? Yes, this appears to be covered because an insured did not communicate the disease; they only made it possible for the disease to be spread. 

 

But just like in the previous example, the injured party must prove the homeowner/host was guilty of negligent conduct and is legally liable. In this case, the legal precept proximate cause (the “but for” requirement) seems to indicate that, “But for the insured hosting the party, there would not have been bodily injury.”

 

Even if the homeowner is not found or held to be legally liable for the sickness, the policy pays to defend the insured because this is not an excluded incident. 

 

What About the Neighbor?

 

Is she covered for making the other guest sick? No, there is no coverage. This points directly back to the applicable exclusionary wording. A liability exclusion is not limited to the insured’s premises. If the insured communicates the disease to another person - even at a party - the exclusion applies. 

 

Parties or No Parties 

 

Homeowners’ coverage, or the lack thereof, for spreading COVID-19 isn’t a weird question. Depending on the situation, coverage may be excluded for the insured. Don’t host or attend parties for a while. 

Tags:  COVID-19  erros and omissions  homeowner coverage 

PermalinkComments (0)
 

Agency Operations - Key Leadership Practices for Virtual Teams

Posted By IIAW Staff, Wednesday, May 13, 2020
Updated: Thursday, April 30, 2020

By: Donna J. Dennis, Ph.D. | Virtual Team Leadership Expert

 

*This article was featured in our May 2020 Wisconsin Independent Agent Magazine. Click here to read the full May 2020 issue. 

 

Virtual Team Meeting

 

We are living in an environment where circumstance forces change!  Work teams everywhere have been forced to shift quickly to a work from home setting.  

 

The MyAgencyCampus team reached out to virtual team leadership expert Donna Dennis, PhD to learn more about “Key Leadership Practices for Virtual Teams.”  See below for some just-in-time recommendations.

 

Both leaders and team members must cope with many 

other challenges. A study conducted by the Business 

Research Consortium (BRC) in association with American Management Association survey of 1,500 individuals 

revealed the following seven suggestions for companies that want to improve the efficiency and effectiveness of their virtual teams. 

 

1. Remember that good leadership is different.

 

It is tempting to believe that traditional leadership qualities are so general that they easily translate to virtual team 

leadership. Unfortunately, that is just not true.  

 

2. Emphasize communication even more

 

Yes, nearly every leader has been told to “communicate, communicate, and then communicate some more.” What is true for leaders in general is doubly true for virtual leaders. In fact, it’s usually true for all virtual team members. 

 

 

Fully 72% of respondents to the BRC survey strongly agreed with the idea that virtual teams require more team 

communication than do co-located teams. 

 

3. Adjust to the medium. 

 

The study shows that team member engagement is 

strongly influenced by the degree of visual feedback 

members are getting. For example, participants in voice-only virtual meetings (the kind so common in the corporate world today) are much less likely to be engaged than participants in face-to-face meetings and in meetings with high-quality videoconferencing. Without a visual 

element, leaders must do things such as: 

 

           Pick up on more subtle cues (such as tone of voice)

 

           Know nuances of cross-cultural communication

 

           Ask more questions to get to a common under               standing of a problem or issue

 

4. Do more to establish trust.  

 

Because virtual team members often lack the time and opportunities to talk to each other informally, trust can be hard to build. The best virtual leaders tend to build “swift” trust, knowing that distance makes it more difficult. They provide goals, roles, responsibilities, strategies, and a 

vision to create a common purpose and shared objectives. 

 

They establish agreements and make expectations clear so that all team members understand responsibilities and proper etiquette.

 

5. Develop robust processes and, where needed, 

    structures.

 

Not only must virtual leaders make expectations clear, they also must establish more checkpoints with explicit 

guidelines. 

 

6. Reduce or avoid “storming” when possible. 

 

Back in the 1960s, Professor Bruce Tuckman developed the idea that teams need to go through four stages: forming, storming, norming, and performing. Virtual teams are 

different in that the “storming” stage (during which 

different members strive for a time to put forward their ideas) is often curtailed. This does not mean virtual teams need to avoid all disagreements and conflicts, only that leaders and members should be proactive and handle 

different perspectives right away, as opposed to letting them linger. 

 

7. Devote resources to development. 

 

Most organizations do not develop leaders and other employees in the art of virtual teaming. Yet, the BRC study indicates that a lack of experience among members of virtual teams is a serious challenge. 

Therefore, we think it pays to educate not only leaders but also potential team members about how to thrive in a virtual team environment. The study also indicates that first-level and middle managers tend to have fewer virtual leadership skills than senior managers and project 

managers.

 

About Donna J. Dennis, Ph.D.

Donna is a leadership development professional 

specializing in solutions for leaders working in virtual and remote teams. Earlier in her career, Donna worked for, Chubb and Son, Inc as well as other corporations in various leadership development positions. Donna’s teaching academia experience includes The Wharton Business School, the University of Pennsylvania and Rider University.  

 

MyAgencyCampus:

Online courses for training agents and brokers including property and casualty new hire curricula, business skills for sales and service team members and upskilling new

 leaders. Visit www.myagencycampus.com  (An offering from New Level Partners LLC).

 

If you are interested in scheduling a webinar on Virtual Team Leadership, please contact aschroeder@newlevelpartners.com.

Tags:  Agency Operations  digital agency  leadership  virtual teams 

PermalinkComments (0)
 

Virtual University - How Business Income Responds to COVID-19 In Under 975 Words

Posted By IIAW Staff , Wednesday, May 13, 2020
Updated: Thursday, April 30, 2020

By: Chris Boggs | Big "I" Virtual University Executive Director

 

*This article was featured in our May 2020 Wisconsin Independent Agent Magazine. Click here to read the full May 2020 issue. 

 

Person Resting Hand on Work Paperwork

 

Business Income

 

Before any insurance policy responds to a claim, the loss must first meet all the requirements of the insuring agreement. The insuring agreement is the broadest the coverage will ever be. If the loss is excluded by the insuring agreement, there is no coverage.

 

The Business Income insuring agreement reads: We will pay for the actual loss of Business Income you sustain due to the necessary “suspension” of your “operations” during the “period of restoration”. The “suspension” must be caused by direct physical loss of or damage to property at premises which are described in the Declarations and for which a Business Income Limit Of Insurance is shown in the Declarations. The loss or damage must be caused by or result from a Covered Cause of Loss.

 

Key Points: 

 

Suspension must be caused by direct physical loss of or damage to property. Direct property damage is required. Damage is generally defined and understood to mean “a distinct, demonstrable, and physical alteration” of a property’s structure. A virus cannot cause such damage.

 

There must be a covered cause of loss. There are two exclusions that disqualify a virus as a covered cause of loss. One is within the policy and the other is found in a mandatory endorsement.

 

• ISO’s business income policy excludes:  Discharge, dispersal, seepage, migration, release or escape of “pollutants….”

 

  A “pollutant” is defined to mean: “any solid, liquid,

    gaseous or thermal irritant or contaminant, including

    smoke, vapor, soot, fumes, acids, alkalis, chemicals and     waste”

  Contaminant is not a defined term, but it is a biological     term of art defined as “a contamination of food or

    environment with microorganisms such as bacteria,     VIRUSES, fungi or parasites”

• A virus is an excluded cause of loss.

 

• CP 01 40 – Exclusion of Loss Due to Virus or Bacteria endorsement is attached to the policy. 

  Introduced by ISO in 2006 as a mandatory     endorsement.

 

 

  ISO introduced this endorsement to negate “efforts to    expand coverage and to create sources of recovery

  for such losses, contrary to policy intent.”

• When attached, there is no question coverage is    excluded.

 

Coverage applies only during the Period of Restoration: 

 

The business income policy pays during the Period of Restoration, this is the period that the business is shut down and unable to operate due to a covered cause of loss.

 

• Because there is no property damage as understood by the courts; and because the presence of a virus is excluded, the insured never reaches the period of restoration. However, assume the courts decide the opposite.

 

• To trigger the Period of Restoration, the courts must decide: 

• The presence of a virus does cause direct physical loss    or damage; and

• Neither the pollution exclusion nor the CO 01 40    excluded the loss.

• The period of restoration most often begins 72 hours after the business-closing loss (this time period can be endorsed down).

 

• A University of Alabama study published in the New England Journal of Medicine stated that the maximum amount of time the virus can live on certain surfaces is up to three days – which is 72 hours. The period of restoration does not begin for 72 hours in the unendorsed Business Income form. By the time the POR begins, the virus is no longer causing property damage.

 

Result: NO Business Income coverage for COVID-19!

 

Civil Authority

 

There is one exclusion in all Cause of Loss forms few are discussing. The concurrent causation section specifically

excludes governmental actions, including business closures:

 

We will not pay for loss or damage caused by or resulting from any of the following: Acts or decisions, including the failure to act or decide, of any person, group, organization or governmental body.

 

Government shutdowns are specifically excluded. Any discussion of Civil Authority coverage begins with this exclusion. Civil authority coverage is granted only because of the “Additional Coverage – Civil Authority.” This is important to understand because when coverage is given as an exception or in direct response to an exclusion, the carrier gets to control the breadth of coverage granted.

 

The additional coverage granted by the Civil Authority provision contains three requirements also found in the business

income coverage:

 

• There must be physical damage to property;

• Damage must be caused by a covered cause of loss; and

• Coverage begins 72 hours after the order of the Civil Authority

 

But Civil Authority is subject to a few unique requirements or rather limitations:

 

• The damage occurs at premises other than the insured’s premises;

• The damage must be within one mile of the insured’s premises (unless altered by CP 15 32 Civil Authority Changes – the distance is up to the carrier); and

• Coverage is provided for up to four weeks (unless changed by the CP 15 32 – up to 180 days).

If all the above Civil Authority conditions are met, other coverage triggers still preclude coverage for COVID-19 losses:

 

• The actions of the civil authority prohibit access to the insured premises. Access to the insured’s premises is NOT necessarily prohibited; these are shelter-in-place orders with exceptions;

 

Access to the area immediately surrounding the damaged property is prohibited by civil authority as a result of the damage. Access to the area is NOT prohibited, people are still in the area – especially if there are “essential” businesses in operation. And if the insured is an “essential” business (like a restaurant), people can

still come, they just can’t stay. There is no preclusion or prohibition of people in or to the area.

The action of civil authority is taken in response to dangerous physical conditions…. These aren’t dangerous physical conditions, at best (or worst, if you like) these are dangerous biological conditions. 

 

Result: NO Civil Authority coverage

Tags:  COVID-19  Virtual University 

PermalinkComments (0)
 
Page 42 of 44
 |<   <<   <  37  |  38  |  39  |  40  |  41  |  42  |  43  |  44