It will not surprise any reader of this magazine that, as the one insurance person in the family, I found myself going through his insurance papers after my father’s funeral. I searched and searched for the umbrella policy I just knew he and my mother would have, but it was nowhere to be found. What I did find was his direct writer’s local agent’s name and phone number. She explained that there was no umbrella and when asked why, she was very clear: “He never asked for one.” In his state, this was an acceptable answer because, like most of the United States, it required only an “order taker duty” or “duty to provide as requested.” (For more information on your state’s standard, visit E&O Guardian at this link.  

In our case, it never became necessary to discover if that agent or carrier had expanded that duty by advertising or had otherwise offered to go beyond that basic duty. These duties could have included coverage advice, exposure analysis, asset protection, and/or an ideal package of coverages to suit his needs. Any materials that indicated that the agency guaranteed a “special relationship” with its clients may have worked if we had needed it. 

Unfortunately, for many agencies, plaintiff attorneys do have reason to find those indications and recent errors & Omissions (E&O) claims history shows that they are having good success.  

Most marketing seminars and E&O seminars provide very valuable recommendations, but they often seem to conflict when it comes to website and applications content. The marketing gurus use words like “creating client relationships, “differentiation,” “hyper-value,” “going the extra mile,” “full coverage,” “proactive account rounding,” “exposure analysis,” and “value added services.”  

E&O seminar leaders urge caution about over-promising, creating that “special relationship,” extending the “duty to provide” to coverage-recommending, and using terms like “full coverage.” One multi-session attendee described feeling like the person between the rock and the hard place. Should she be E&O-safe or should she be successful in an ever-more-competitive insurance marketplace? 

Happily, an agency can be E&O-safe while it is presenting itself positively and proactively in the marketplace. A simple change in wording from “we will” to “we will endeavor to” can help. Here are some well-intentioned but dangerous examples of wording on websites that, if shown on the “big screen” in court, could turn the case against the agency. The second column shows safer wording that still gets the message across to the site or app user.

Swiss Re, like all E&O carriers, has seen plaintiff attorneys bring the defendant agency’s web-based statements as evidence of the agency’s negligence in not fulfilling its “promise” to the client. Its Corporate Solutions division has been very proactive in providing solid recommendations that are very easy to incorporate into an existing agency site or app or that can be very helpful in developing a new agency site or app. 

Some of those recommended “essentials” are as follows. 

Vendor-Provided Interactive Sites Make Your Agency’s Data an Even More Important E&O Safety Mechanism 

It is common for an agency to offer an interactive site to its clients without verifying that its database, which the client will now be using to get a certificate or a binder or report a loss, is complete or accurate. Agency staff have been coping with that by using images of paper or the carrier websites – all of which are inefficient and has its own E&O dangers – but now those dangers are accentuated. Recommended practices before opening an interactive site to an agency’s clients include the following.  

A simple example might clarify the importance of site and system synchrony.  

An agency is short-staffed due to unanticipated staff departure and some work is not done in a timely manner. It might be the download suspense; it might be handling of an aged receivable. The upshot is that a cancellation does not get updated in the agency’s system. Commercial lines clients in that same period obtain a certificate of insurance from the agency’s website and direct them to the entity for which they are working. A claim occurs during a period of “no coverage.” The agency will likely be found negligent for allowing certification of coverage when coverage was not in force. It is important to point out that, even in the absence of a loss, client confusion is enough reason to ensure that the agency’s data base is “ready for prime time.” 

One important consideration in agency website design is accessibility. Users filed 244 Federal accessibility cases in 2016 regarding public accommodation businesses. The Department of Justice responded to one defendant’s interpretation that “only physical locations are subject to Title III of the Americans with Disabilities Act in this way. 

“The United States respectfully submits this Statement of Interest to clarify public accommodations’ longstanding obligation to ensure that individuals with disabilities are not excluded, denied service, or treated differently from other individuals because of the absence of auxiliary aids and services, such as electronic technology. This obligation means that websites of places of public accommodation… must be accessible to people who are blind unless public accommodation can demonstrate that doing so would result in fundamental alteration or undue burden.” 

Since most agencies in their marketing materials offer their location(s) as open to clients, prospects, and visitors, it is a place of “public accommodation.” Note that the DOJ’s statement above is a Statement of Interest, not a court or administrative filing. However, an agency in setting up a website would be wise to consider text alternatives such as captions on-screen or available to be displayed for audible site content and an audible option for print-only content. At a minimum, this shows admirable concern for the vision impaired. At a maximum, it may keep the agency out of one of the expected multiple 2017 and beyond accessibility-based cases.