In the first part of this article, we considered some of the promises independent agents and brokers make, either implicitly by claiming “independence” or explicitly in online credos.
Plaintiffs’ counsel in agent and broker E&O cases ask pointed questions about claims of independence. Was a policy placed with the insurer in question because it offered a higher commission if the agent or broker generated a certain volume of business? What efforts did the agent or broker make to tailor standard policy forms to meet the insured's specific needs? When they ask questions like these, they’re doing their due diligence. We need your help to do ours.
Don't play with fireworks
Agents and brokers can avoid E&O claims by following the standards they’ve held out to the public, plus those imposed by applicable insurance laws and regulations, and by documenting in their files the steps they took to meet those standards.
Even an agent or broker who does everything perfectly and correctly all the time may get sued. When a large loss is uninsured or underinsured, customers often look everywhere except in a mirror to find someone to blame. E&O claims are a business risk of all professionals: Clients or patients with unsatisfactory outcomes look to impose their misfortunes on those who tried to help them.
What should an agent or broker do when that claim or suit arrives?
Step 1. Notify your insurer
The first step, of course, is to notify your liability insurer, or the designated person in your organization to deal with claims. You are not alone. You have people in your corner who have dealt with more E&O claims in their careers than any attorney ever will.
Step 2. Don't speak with anyone
You should communicate only with your liability carrier and its representatives, those in your firm whose managerial or risk control positions give them a need to know, and the counsel who will be representing you. Your communications with others outside this risk management circle, with very few and limited exceptions, are not privileged — you and they can be forced to testify about what was said.
Step 3. Work with the defense team
Your job is to work with your insurance and legal team to prepare for the case. It will take time, perhaps a lot of time, to gather all the documents, communications and electronic information that you’ll be asked to provide, to help construct an accurate chronology of events.
Early in every case, I like to meet with clients where they work, preferably in a conference room. That way they can focus on our discussion without distractions, and be out of others’ earshot, but they still have easy access to their electronic and paper records. It's time well spent and can put the case on a path toward an early exit.
Settlements aren't bad
Even when the facts strongly point to the conclusion that the agent or broker committed no error, it's important to remain open to settlement or other alternative dispute resolution opportunities.
I enjoy telling a client that he or she has been vindicated, but the road to vindication is costly and the outcome uncertain. “All's well that ends well,” as they say, but often “All's well that ends soon.”
Independent agents and brokers are members of an honorable profession, aiding people and businesses in mitigating their risks and losses before they occur. By meeting the standards of their craft, exercising their independent judgment, and keeping accurate, contemporaneous records of what they’ve recommended and why they’ll have less need to meet someone like me on a professional basis.
Louie Castoria (email@example.com) is a partner in the national law firm of Kaufman Dolowich & Voluck LLP, and co-chairs the firm’s Professional Liability Practice Group and its San Francisco office.