Tag Archives: professional liability

The Questions That Aren’t Being Asked

In Aldous Huxley’s 1931 novel Brave New World, many original ideas were posited about a futuristic society. Two of those ideas, appearing in our present, involve eugenics and an ever-increasing reliance on technology.

Techniques like CRISPR (clustered regularly interspaced short palindromic repeats) to genetically engineer a human embryo, and technological advances like self-driving vehicles, could be said to represent some of Huxley’s notions. However, professional liability underwriters, especially those underwriting cyber liability and tech E&O, are out of phase with this “brave new world,” and this fact creates a dangerous situation for both those underwriters and an economic world dependent on them. To be responsible and successful in the present and into the future, the professional liability insurance sector must look backward to look forward and, in so doing, create a breed of underwriters who are every bit as creative as the future will be.

Being out of sync with present-day reality is clearly represented in questions not asked on cyber liability and tech E&O applications. For instance, one current cyber liability application does not ask what type of firewall an applicant is using. A company can use a simple device with a firewall feature and claim to have a firewall in place, but that device will not come close to equaling the protection offered by a hardware-based NGFW, or Next Generation Firewall. The same application also does not ask if multiple hardware and software ecosystems are used, even though the answer to that question, especially for a medium-sized and large business, offers significant insight into the company’s cyber security approach. Additionally, this particular application does not ask whether an applicant is using the services of a cyber security firm. Those kinds of questions, and the answers to them, convey an enormous amount of information about the cyber security posture of an applicant and, in turn, provide significant insight into whether a risk is worth underwriting and at what cost. For such questions to be missing from an application is dangerous for insurance companies and the clients of those companies.

See Also: Space, Aviation Risks and Higher Education

The current situation with technology E&O applications is equally worrisome. For example, in the exclusions list on one recently updated technology E&O policy there is no exclusion for computer languages known to be highly prone to cyber breaches. Theoretically, an insured software company could be writing code in Adobe Flash or Java Script, languages that should be avoided. By not excluding those languages, the insurer is exposed to adverse results of claims and lawsuits caused by an insured using hazardous script. Perhaps even worse, this insurer does not exclude wireless products that do not include proper encryption. Thus, if a company that produces baby monitors creates a product that broadcasts the signal in an unencrypted format, claims could arise from a concerned consumer of that product. After all, what reasonable parent would allow anyone to spy on her child?

This issue is likely even worse because, time and again, successful lawsuits have already been brought against manufacturers of products that lack proper wireless encryption. The absence of such exclusions to protect itself and to encourage better behavior from its insureds calls into question whether a technology E&O insurer is in sync both with technology and the current legal environment. With underwriters being out of step in the present, one must wonder how they will be able to help drive the world forward in the future.

There are other parts of the professional insurance sphere that are not poised well to be in harmony with the future. In the near future, robots will be introduced into social environments like nursing homes. If a robot injects medication into a patient, prescribes a medication or lifts a patient from a wheelchair to a bed, then that takes an already risky situation into an unexplored legal realm. If a patient suffers an adverse reaction to a drug that was injected by a robot, then how will the nursing home be protected by any of its insurance policies? Or, what if a robot is provided by the nursing home to a patient who needs companionship? If the robot malfunctioned and could not be replaced and the patient drew into a depressed state and died, then how would insurance cover a wrongful death suit by the patient’s family? A general liability policy certainly would not cover such an event, and an allied health policy is not currently worded to handle such a risk. What about the manufacturer of that robot? Would a technology E&O policy step forward and indemnify the manufacturer of the robot?

Most countries, especially those like China, Japan and the U.S., have populations that possess far more elderly people than younger ones, and there are simply not enough people entering the field of senior care to handle the influx of those who need care in their golden years. This means that robotic companies are going to be filling that void and, in so doing, will create an unprecedented situation that will require the professional insurance sector to provide guidance and protection to the rapidly aging world. To provide that guidance and protection, however, will require professional underwriters to understand the intersection of technology, human care and the law, an intersection with which underwriters are currently less than conversant.

So how do insurance companies offering cyber liability, technology E&O and other professional insurance get into sync with the evolving world they are underwriting? There was once an international competition that encouraged students in the seventh through twelfth grades to form groups of two or three people and build educational websites. The competition was known as ThinkQuest. It was supported by both governmental and private organizations, had strong support from educators in more than thirty countries and rewarded the most successful competitors with scholarships of as much as $25,000. A similar approach must now be embraced and championed by the insurance industry. The brilliance of ThinkQuest was that it brought together young people who could appreciate and understand a multitude of ideas, numerous bodies of knowledge and people who were willing to learn and teach at the same time and who could convey their ideas both by the written word and binary. The spectrum of ideas that the groups put forth ranged from examining a social phenomenon like Harry Potter to examining how music affects people’s mental and physical health.

To be able to fully appreciate and understand nearly every cyber liability and technology E&O risk requires people who have an uncommon breadth and depth of knowledge that extends from simple areas like grammar to complex areas like quantum mechanics. When an underwriter tries to underwrite a risk like SSA (space situational awareness), to underwrite a risk in which a company produces electronic-photopic chips or to understand memory-resistant malware, that requires a degree of understanding that is clearly not being demonstrated by the majority of the current breed of underwriters. However, the degree of wide-ranging creativity needed here was what the ThinkQuest competitions were created to foster in young people. The insurance industry needs people who can draw from a wide range of knowledge, and it also needs people who can write binary code with exactitude. Insurance companies must employ cyber forensic engineers who can pinpoint where a security breach happened, how an intruder gained access to additional computers and how to remedy the situation.

Being able to work individually or in a team, being able to backtrack to the point of intrusion and being able to view the world in tangible and non-tangible ways requires more than someone who can simply write one line of code after another. Currently, insurance companies depend on other companies to investigate data breaches, but this will not work out in the long run. In the 20th century, numerous insurance companies owned law firms to litigate claims economically. The 21st century will require cyber liability insurers to employ cyber forensic engineers to investigate claims based on network breaches. Moreover, in the very near future insurers will need to create an organization that tests routers, switches, servers, smart phones, robots and other technology devices to determine how secure or how capable those devices are. As has already been argued on the PLUS Blog in November 2015, not all technology devices are created with the same expertise, and figuring out which devices are least and most secure will greatly facilitate insurers’ ability to price policies correctly. However, to find young people who can view the computer realm in multiple dimensions, and to find those who can function in a cross-disciplinary environment and approach a risk from a multitude of angles can only be successfully accomplished on a large scale through an instructional competition.

People who have a broad and deep appreciation for multiple disciplines and cyber forensic engineers are uncommon, and insurance companies are not the only ones who need such thinkers. cyber security companies, law firms, private and public educational organizations, research organizations, think tanks and governments are just a few sectors that need those type of people. This means that, as difficult as it is already to find thoughtful insurance people knowledgeable about the cyber world, the future is only going to be exponentially more troublesome.

When the 20-year-old who is going into her senior year at college thinks about the past and future, what will she strongly consider for a career? Will she remember the competitions that the insurance industry hosted that allowed her to cultivate friends from all over the world, and allowed her to gain the needed assurance in her skills as a programmer or a writer to pursue a major in computer science or history? Will she remember the competitions that helped fund her time at college, and in doing all of that proved that being a cyber liability underwriter is a fulfilling career opportunity? Or will that 20-year-old have nothing to remember where the insurance sector is concerned?

The Cyber Security Challenge is one competition that currently aims to increase the pool of cyber forensic engineers; however, it is not an international competition and focuses only on people who are capable of becoming cyber forensic engineers. Professional liability insurers need thinkers and tinkerers, and locating both on a large scale can only be accomplished through a competition like ThinkQuest. Nano-technology, advanced robotics, augmented reality and memory-resident malware are elements of a brave new world that cyber liability and tech E&O insurers are going to come face-to-face with in the short term. In three to five years, insurers are going to encounter robots where none have been before. If insurers do not create and enthusiastically support a competition like ThinkQuest, then insurers will not be acknowledged or remembered by those in college. Consequently, insurers will find themselves without a breed of underwriters who can thrive and understand the brave future. This must not be so!

What Coverage Does a Consultancy Need?

Insuring a consulting firm can pose a challenge. Many professionals start a firm today out of necessity — creating their own employment. You take years of expertise and open a consultancy, often out of your home or in an office suite. This means a tight budget.

Insurance is one of the areas where entrepreneurs may try to cut costs, but, to protect your business, you need to have your insurance agent evaluate all the exposures you face and offer solid coverage solutions.

What does the professional liability policy cover?

The consultant and its employees provide a service or offer advice, but what if it is faulty? Any professional consultant needs professional liability coverage, also called errors and omissions.

The professional liability policy may be worded as follows:

“The company will pay on behalf of the insured any loss excess of the deductible not exceeding the limit of liability to which this coverage applies that the insured becomes legally obligated to pay because of claims made against the insured during the policy period for wrongful acts of an insured or because of personal injury arising out of wrongful acts of an insured.”

In addition, the policy may say, “Coverage for allegations of bodily injury, sickness, disease, or death of any person, or damage to or destruction of any tangible property, including the loss of use….”‘

This wording shows the limited scope of the professional liability policy. The intent is to cover only negligent professional or “wrongful” acts. The policy also provides limited protection for personal injury, such as libel or slander, committed by the insured against a third party.

What does the commercial general liability (CGL) policy cover?

The CGL covers bodily injury to a person or damage to the property of others caused by a firm’s negligence. As courts have ruled repeatedly, the CGL policy is not a performance bond. A CGL policy is not intended to cover the quality of a company’s advice or service. This helps constrain the contractor from low-bidding a job, performing poorly and then relying on the insurance carrier to cover that risk.

Look first at CGL policy language under the insuring agreement, the heart of the policy:

“We will pay those sums that the insured becomes legally obligated to pay as compensatory damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies.”

Here are a few of the exposures covered under the CGL:

  • Premises and operations liability for persons injured or items damaged while on your business premises or because of your business operations.
  • Additional insured coverage when you sign certain written contracts or agreements such as leases.
  • Tenant’s liability in the event the business operations, for example, accidentally start a fire in rented premises.
  • Host liquor liability if you are not in the liquor business.
  • Defense for covered claims.
  • Bonds and court courts associated with a claim.
  • Limited financial remuneration when assisting your carrier in the defense of a claim.

In addition to bodily injury and property damage, the CGL covers personal injury liability, including libel and slander, as well as advertising injury. The CGL offers consultancies broad coverage and peace of mind. You can run your business knowing that help is available in the event of a broad range of losses.

Althought there is a great deal of uniformity between professional liability forms and commercial general liability forms, all carriers use a variety of forms. Coverage can vary widely from one insurance carrier to another, so an agent should be able to help you determine the coverage differences and help you make a strong choice to protect your growing consultancy.

What are some CGL exclusions?

There are many exclusions under the CGL, and to understand each one is tricky. Forms differ and jurisdictions that hear lawsuits vary greatly. However, here are some general exclusions:

  • Intentional injury — When a business owner acts in self-defense, there is generally coverage. For example, suppose a robber breaks into the darkened firm and brandishes a knife at the owner, who is catnapping. He heaves a computer monitor at the burglar and injures the burglar. Carriers should defend the case unless it appears the insured intended to inflict malicious injury.
  • Care, custody and control of property owned by others — For the consultancy that repairs computers or other equipment, bailee coverage may be necessary.
  • Faulty workmanship.
  • Liability arising from an aircraft, auto or watercraft — If you use any of those conveyances in your business, you’ll require specific coverage to protect your assets. However, if you provide an automobile to an employee who gets in an accident, you may have coverage, depending on the coverage form and the jurisdiction.

While the CGL policy offers the majority of consultancies broad coverage, your agent must evaluate each risk carefully to ensure the CGL adequately protects the consultancy’s unique exposures.

The CGL may still lack scope

As your consultancy grows, the CGL is only part of your coverage solution. The CGL will not cover every exposure you face, especially once you hire employees.

In most states, after you hire either one or a small number of employees, the state mandates workers’ compensation coverage. In addition, employment practices coverage is important in today’s complicated employment arena. There is no coverage under the CGL for most employment exposures like a wrongful termination or a discrimination claim.

Your consultancy may start with only one computer and a printer, but as your firm grows so does its personal property. Don’t forget to insure your personal property, as well.

For firms with even the most trusted employees, crime policies are vital. For example, suppose you hire a bookkeeper to assist with accounting and administrative tasks. Unbeknownst to you, she likes to gamble. Over time, she begins to embezzle funds, and, before you know it, you are short thousands of dollars. Crime coverage is designed to defend and pay these types losses. The Association of Certified Fraud Examiners found that firms with fewer than 100 employees were frequently hit by fraud, accounting for 32% of the incidents they surveyed.

Clearly, the CGL offers broad coverage and peace of mind for any consulting firm, but there are many other risks your business faces that may require specialized coverages. An independent agent can help you sort out the risks.

One easy approach to coverage

If you own a consultancy, you may be confused about your unique coverage needs. The way many agents approach your coverage is to tell every new business owner he or she needs general liability coverage. Then they review the consultancy’s business operations to determine what additional coverage, such as professional liability, employment practices or workers’ compensation are required.

Because most consultants have auto insurance, to some extent you understand liability coverage. The CGL is more complicated, but the general principles of coverage for bodily injury and property damage are similar to the auto policy. For the new consultant, this comparison may be a good starting point to help you understand your company’s need for general liability coverage.

In today’s complex business environment, no consultancy should go without two types of coverage — professional and general liability — at a minimum. An experienced independent agent can help you ensure your business thrives and prospers in the coming years.

 

Nursing Home Insurance: Are Your Policy Limits Wasting Away?

Over the last 15 years, the nursing home industry has seen substantial changes in the liability insurance markets. At one time, insurers looked at the elderly population in nursing homes using traditional measures of damages like lost income and concluded that the industry was a risk worth insuring. The tidal wave of elder abuse litigation that drove sky-high verdicts changed the insurance landscape dramatically, resulting in a dearth of available coverage and forcing many nursing home entities to become self-insured. Insurance carriers are once again writing policies for the nursing home industry, but with significant changes in how limits of insurance work under some new Nursing Home Liability forms.

Nursing home policies typically combine a Professional Liability policy with a Commercial General Liability policy with limits set for an individual case or claim and an aggregate limit for the facility or company. The policies are written in a way to make sure a claim is covered under either the professional liability side or the commercial general liability side of the policy, but never both. For example, a policy might have a $3M aggregate and a $1M per claim limit. This means that no claimant can ever recover more than $1M on the policy, but the company's overall coverage does not exhaust until all $3M has been paid out. Traditionally, Commercial General Liability policies paid for an insured's defense outside of the per claim or aggregate limit. In other words, a $1M limit could only be exhausted by paying out that sum to a claimant. There was no limit on defense costs at all, which frequently put pressure on carriers to settle cases.

Many of the newer policies for nursing homes are now being written on a “wasting” form where defense costs erode the stated limits of the policy. This means that the insurance company has now capped its liability at $1M per claim, which includes both defense costs and any money paid to settle the case or satisfy a judgment. The effects of this change are profound. Nursing home entities and their defense counsel need to reconsider their limits and how they choose to defend claims. The prospect of an expensive defense no longer concerns insurers the way it used to. Now insureds have to worry about that instead.

If you are involved in risk management for a nursing home entity, you need to know whether or not your liability policy includes defense costs within the stated per claim limit. If it does, you have what insurance lawyers refer to as a “wasting” policy. The following examples demonstrate the way a wasting policy is different from traditional Commercial General Liability policies.

Example 1:
Suit Filed — General Negligence. Taking the case to trial results in Defense Costs of $500,000 and a Verdict for $1,000,000 Standard Commercial General Liability Policy with $1M per claim limit pays all defense costs incurred and the jury verdict. Insured would be responsible for paying any deductible or self-insured retention.

Example 2:
Suit Filed — Professional Negligence. Taking the case to trial results in Defense Costs of $500,000 and a $1M Verdict Commercial General Liability “Wasting” Policy with defense costs eroding limits. Insurance carrier pays $500,000 in defense costs and $500,000 towards the jury verdict. Nursing home is liable for remaining $500,000, as well as any deductible or self-insured retention.

As Example 2 demonstrates, if you have a wasting policy, a $1M per claim limit will be reduced by costs incurred to defend the case. Under a traditional Commercial General Liability policy, the insured could afford to take an aggressive stand in litigation and try to wear down plaintiff's counsel through use of extensive discovery, filing motions for summary judgment and even taking an appropriate case through trial. After all, the aggressive defense was being paid for by the insurance carrier, not the insured nursing home. Under a wasting policy, this litigation strategy can be disastrous. A nursing home could end up spending almost its entire limit defending a serious case, only to end up funding a large settlement or verdict out of its own pocket.

A wasting policy also has significant implications for defense counsel. Normally, insurer-appointed defense attorneys never want to get involved in questions regarding insurance coverage. They cannot afford to alienate the insurers that hire them as panel counsel, so they only want to focus on defending the underlying case. When defense costs are outside of limits, avoiding all things insurance is a safe course for appointed defense counsel. All of this changes, however, when you have a wasting policy because every dollar the lawyer spends on defense will not be available for settlement. It is imperative to know at the outset of a case if you have a wasting policy. If it is, liability needs to be assessed quickly and realistically in order to preserve as much of the limits as possible for settlement. Failure to do so may result in unfortunate consequences.

Nursing home insureds are also frequently defended under a reservation of rights from their insurer that may entitle them to hire independent counsel at the insurer's expense. Whether or not you are entitled to independent counsel based on a given reservation of rights is beyond the scope of this article, but risk managers for nursing homes need to know that insurers issuing wasting policies will take the position that the cost of independent counsel will also come out of the available limit. Therefore, requesting independent counsel who bills at a higher rate than counsel assigned by an insurer can have the unfortunate effect of depleting limits even faster.

Nursing home entities also need to consider the impact of wasting limits on the aggregate limit covering all claims in a given policy year. Where defense costs erode both individual claim and aggregate limits, a nursing home entity could successfully defend a number of cases and pay out no money whatsoever in liability, but still exhaust all available insurance coverage. For instance, a company with a $3M aggregate limit could successfully defend five cases to verdict at a cost of $600,000 per trial and have no remaining insurance whatsoever. While that example may seem unlikely, you have to look at your own company's claims experience to consider what type of limits are appropriate if you have liability coverage written on a wasting form.

Recommendations
Risk Managers should review all pending litigation and the policies that are covering those claims to determine whether or not defense costs are eroding limits. Talk with your broker about what types of liability coverage are currently available in the market. If you can purchase policies with defense costs outside of limits, that may be worth paying a higher premium. If your broker can only find insurers willing to write liability insurance on wasting forms, revisit your per claim and aggregate limits with your broker to determine if you are adequately covered.

If the thought of actually reading an insurance policy is too painful to contemplate, hire coverage counsel to do it for you. Of course, this assumes you have a copy of your policy. In many cases, brokers bind coverage and the policy is not issued for months. If you are about to purchase a new policy, make sure your broker confirms the type of policy form it will be issued on. Once the policy arrives, make sure it is what you were promised. Finally, if your liability insurance is written on a wasting form and you do get sued, have a frank discussion with your defense counsel at the outset of the case before significant defense costs are incurred. Get a budget and a liability assessment as soon as possible. If you don't, the financial consequences could be painful indeed.