Claims-made. . .
Claims-made and reported. . .
Defense inside the limits. . .
Defense outside the limits. . .
Deductible (this one isn’t as straightforward as you’d think!). . .
Retro date. . .
Is your head swimming yet? Let me help.
Professional liability policies and the coverage provided vary by insurance carrier just like all other lines of coverage.
It’s important to read each company’s form to understand the coverage, the claim-reporting provisions, exclusions and conditions.
As you know, errors and omissions (E&O) insurance policies are designed to protect your assets when you commit an alleged wrongful act. You want to be sure that when that happens, you have the protection you intended.
It’s like the old saying, “Here’s where the rubber meets the road.” Your insurance policy needs to live up to your expectations.
Purchasing the right policy form that offers you the coverage you need, as well as having the guidance of an agent that understands the coverage details, is crucial.
Claims-made versus claims-made and reported
Errors and omissions policies are not occurrence-based policy forms, rather they are written on either a claims-made or a claims-made and reported basis.
Although they sound similar, there is a major distinction that is important to understand.
A claims-made and reported policy form restricts the timeframe an insured can trigger coverage under the policy to the policy period.
A claims-made and reported form requires not only that the claim be made against the insured, but also reported to the insurance carrier during the policy period.
Conversely, a claims-made policy forms states that the claim must be made against the insured during the policy period and typically reported as soon as possible or promptly.
This is a major distinction and one of the reasons the claims-made policy form is more flexible than a claims-made and reported form.
How does claims-made and reported work?
It’s helpful to put the claims-made and reported form into a practical example.
Let’s say your agency’s errors and omissions policy period is Aug. 1, 2017 to Aug. 1, 2018.
On July 31, 2018 you receive notice that a lawsuit was filed against you by a client who alleges you failed to procure insurance coverage for them.
You report it to your insurance carrier on Aug. 8, 2018.
Under the terms of a claims-made and reported form, the carrier could deny coverage for this claim since it was not reported during the policy period.
The policy language states that it only covers claims first “made and reported” during the policy period.
Your claim was first made on July 31 and should have been reported prior to the expiration of the policy period of Aug. 1, 2018.
It’s also important to note that the renewal of the policy does not extend the policy period.
Defense inside or outside the limits
Professional liability policies are written either with defense inside the limits of liability or outside the limits of liability.
Defense inside the limits means covered defense costs erode your limit of liability, which impacts the amount of money available to pay damages awarded to a plaintiff.
It’s preferable to have an errors and omissions policy that has defense costs outside the limits of liability.
Defense outside the limits of liability does not impact the amount the insurance carrier will pay out to defend you against an alleged wrongful act, and it doesn’t take away the amount of recovery available to a claimant.
As a result, defense outside the limits offers you more protection.
Choosing the right deductible can be confusing for some.
It’s not selecting the deductible amount that trips people up, it’s the application of the deductible that can lead to misunderstanding.
What does that mean?
When you are completing your errors and omissions application or electing which coverage to bind on your quote, you may have options for selecting a deductible that states loss only or loss and litigation (litigation is sometimes referred to as claims expense, defense cost, etc.).
These choices don’t refer to coverage, which is a common misunderstanding.
Choosing between loss only and loss and litigation is selecting how your deductible will be applied if you have a claim under your policy.
Loss only means that your deductible will apply to payments for loss.
Similarly, if you choose loss and litigation, the deductible will apply to payments for both loss and litigation expenses.
Regardless of which deductible you choose, you will still have defense for claims reported to the insurance carrier (subject to the terms and conditions), but whether or not you pay the deductible for the cost of defense depends on the option you select.
If this sounds foreign to you, you could be insured with a carrier that doesn’t provide the option to have your deductible apply to only loss payments (which means you may be on the hook to pay your deductible for defense costs). Be sure to read your policy to find out.
Retro date and prior and pending litigation
It’s important to understand what the retroactive (retro) date is and how it applies to coverage under the claims-made policy form.
A retro date is used to exclude coverage for wrongful acts that allegedly occurred prior to that date, even if the claim is made against you during the policy period.
Frequently, the retro date is the same as the first policy effective date you purchased.
Insurance carriers are also willing to extend the retro date, or look-back period, to what is referred to as “full prior acts.” This provides coverage for the entire time the you’ve been in business.
If you move between carriers, it’s crucial that the new insurance carrier provide the same retro date to avoid any lapse in coverage.
Beware of the usage of a prior and pending litigation date, which excludes coverage for any litigation proceedings that began prior to that date.
This exclusion is absolute and doesn’t require that you have knowledge of the pending litigation.
If a lawsuit is filed against you and the date of the pending lawsuit occurs before the prior and pending date, there is no coverage afforded to you under the policy.
In most cases when a prior and pending litigation date is used, the carrier lists the date as the first coverage date for the insurer — even if the retro date of the policy is being honored from the previous carrier.
This can create serious coverage gaps.
This list is not meant to be totally inclusive, but is a guide on the most prominent features to consider when evaluating an errors and omissions insurance policy. There are many other unique features you must take into account to make sure you have the right coverage.
If you are concerned about what’s in your errors and omissions policy, we are happy to help. Reach out to OIA’s Agency Services team today – we are the agent’s agent.