Errors and omissions claims against insurance agents can take many different forms. In this column I previously have written about E&O claims resulting from an insurance broker's alleged failure to advise an insured, or her failure to recommend different types of coverage. I also have written about an insurance agent's liability for coverage placed with an insolvent carrier. This month I will address the E&O claim for misrepresentation of coverage.
Like a “failure to advise” claim, a misrepresentation claim is generally made against the broker when an insured experiences an uninsured loss for which he allegedly thought he did, or should have had, coverage. In most cases the two types of claims go hand in hand and complement each other. However, there are slight differences. In a “failure to advise” claim, the scope of the broker's duty will most likely be at issue: Is there a “special relationship” between the broker and insured that would impose a duty upon the broker to affirmatively recommend and explain coverages to the insured, or is the broker merely an order-taker? The claim's success is highly dependent upon the jurisdiction, as each state applies different legal standards.
On the other hand, a misrepresentation claim is somewhat more straightforward: Did the broker misrepresent the amount or type of coverage to the insured? Regardless of the state, all insurance producers have a duty not to misrepresent coverage to an insured. We all know that. Generally speaking, an insurance broker has a duty to procure the insurance requested, and to tell the insured if she cannot do so. When determining whether an insured received the requested coverage, courts will typically look to whether an insured's “reasonable expectations” of coverage were met. How do we know if those reasonable expectations were met? How can an insured prove an agent misrepresented something? More importantly, how can you prove you didn't? To help put this in context, let's consider the following scenario.
The Flipper scenario
Rich Flipper is a successful real estate investor who has made a fortune buying distressed commercial real estate at auction, then selling it to other investors at a handsome profit. Flipper uses Diligent Insurance Agency for his property insurance needs. One day, Flipper calls Diligent to notify the agency that he is about to purchase a large, vacant commercial property at auction. He estimates the value to be $1 million and requests building coverage in that amount. Fortunately for Flipper, Diligent has access to markets who write this coverage, and Diligent can even quickly submit an application without Flipper's signature to quickly process the request for him.
Diligent completes an application requesting replacement coverage in the amount of $1 million, and requests the limit be “agreed amount,” meaning no coinsurance will apply. The carrier notifies Diligent coverage has been bound, and Diligent sends Flipper an insurance binder as proof of coverage until the policy issues. On the binder, Diligent represents Flipper has a $1 million limit on the building replacement cost, with “agreed amount” and no coinsurance. However, both the carrier's coverage quote and the policy ultimately issued contain a 90 percent coinsurance provision.
About a month later, before Flipper is able to sell the property, the building catches on fire and is damaged in the amount of $800,000. The carrier appraises the building with a fair market value of $2.5 million, applies the 90 percent coinsurance provision, and writes Flipper a check for $355,555.55. Confused and angry as to why he hasn't been paid what he feels he's owed, Flipper sues Diligent to collect the remaining $444,444.45. Among his many allegations, Flipper claims Diligent misrepresented the amount of coverage it procured for him. What can Diligent do, or should Diligent have done, to either avoid or defend against this E&O claim?
Several easy steps
When new coverage is placed for an insured, there are several easy steps an agent can take to document and confirm the coverage is what the insured requested. First, it is always best to get an insured's signature on the application. A signed application can be a defense attorney's best friend when defending an E&O claim. It is perhaps the best evidence of the coverage the insured requested. In a situation where the insured has not signed or even seen the original application, your ability to defend yourself will unfortunately be compromised.
Next, when the carrier issues the coverage quote, compare it to the signed application to ensure that they substantially match. And if you are going to prepare and send the insured a binder of coverage, be absolutely certain the binder matches the terms of the quote received from the carrier.
Finally, be sure to send the insured a copy of the policy and declaration page, along with a cover letter from your agency to prove when it was sent. As with the application, where the insured claims he never received a copy of the policy, and the agency can't show that he did, another big weapon has been removed from the arsenal. In that cover letter, it is also a good idea for you to instruct the insured to: a) review the policy; b) contact you with any questions or concerns the insured may have; and c) notify you of any additional coverages the insured desires. You should send a similar letter to the insured at each renewal as well. Keep copies of these letters in your file–they are invaluable when defending an E&O claim.
By following these basic steps at both policy inception and renewal, you will go a long way toward meeting and documenting the insured's reasonable expectations of coverage, and you will give your agency–and your defense attorney–a better chance of defeating the E&O claim asserted against you.
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