Ask Regina

Q. We just had a client call asking about rental coverage for U-Haul Truck they will beregina renting to move their household goods. They currently have an ISO Personal Auto policy. What coverage do they have, if any?

A. A non-owned vehicle in the physical damage section of the ISO PAP is defined as a private passenger auto, pickup, van or trailer. A U-Haul truck would not fit the definition so the policy would not provide physical damage to the truck but would still provide third party liability.

In regard to liability, the named insured and any family member are covered while using any auto. Since the word “auto” is undefined in the PAP, coverage applies when renting any type or size of vehicle for personal use, even a large truck. See the InfoCentral Coverage Issues report in regard to rented vehicles.

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Insuring Against Large Losses: What Size is Your Umbrella?

More and more people are becoming concerned about protecting themselves and their families from liability exposure and damages they might incur in the wake of a serious accident. More people are purchasing personal umbrella policies to cover those large exposures should the worst happen.

The well-trained insurance professional will take great care in procuring such a policy, and with good reason. Significant E&O claims have arisen out of the marketing and procurement of personal umbrella policies and the lack thereof. Let’s take a look at some landmines that we have seen blow up on an agent placing personal umbrella coverage.

1. UM/UIM
Does the personal umbrella policy provide coverage above the primary auto policy on an underlying Underinsured Motorist (UIM) or Uninsured Motorist (UM) claim?  Personal lines carriers vary on whether their policies cover this exposure. The cautious insurance professional should always check with the umbrella carrier to see if their policy covers UIM or UM coverage above the primary limits and advise the customer in writing if it does not. Otherwise, if the customer is involved in a catastrophic accident and the umbrella does not provide coverage, they could – and often do – turn to the agent and their E&O carrier for relief. This is a growing area of concern in the E&O world because umbrella claims tend to involve substantial damages.

2. Late notice
Failure to promptly report claims to the carrier is another common trigger of E&O claims. That includes those involving umbrella policies.  The agency notifies the primary carrier of an accident or loss involving one of its policyholders, but fails to notify the personal umbrella carrier at the same time. The most common reason for such failure is that the underlying loss does not appear serious at first blush. Sometimes the initial investigation is inaccurate or the facts change as the investigation progresses.  Another possible scenario – the policyholder confidently assures the agent that he or she was not at fault for the accident.

Invariably, the agency is never made aware of a change in circumstances with respect to the underlying claim and therefore does not report the loss to the personal umbrella carrier. The problem is, most personal umbrella policies contain language requiring the loss to be reported to them as soon as possible or as soon as practicable.

To avoid this exposure, it is critical to report every claim to every potential carrier as soon as the agency is aware of the claim. This way, the agency has satisfied their duty to report the claim, eliminating a potential future E&O exposure for failure to timely report.

3. Mind the gap  
The thorough insurance professional will determine whether the primary policy limits satisfy the requirement of the umbrella policy. That is particularly true if the primary and umbrella policies are with different carriers. A common example: the customer procures his own primary auto policy from one of several ‘direct’ carriers, while the independent agent places homeowners and personal umbrella coverages. Umbrella policies usually have an attachment point that requires a certain amount of underlying coverage before their coverage will attach.  The agent should always get a copy of the declaration pages for all primary policies and should advise the customer in writing of potential gaps in coverage.

4. Changes in circumstances
The agency should handle any policy change request from the customer with fresh eyes. For example, if an insured couple gets divorced, the agent should follow state law in executing any policy changes. Information regarding who is to be insured following the divorce has to be received in writing, clearly stated. Any policy change with respect to named insureds should be communicated to all parties in writing, especially if a separated spouse winds up with less coverage than they had in the marriage.

5. Limits
Does the umbrella policy provide the amount of protection needed by the client? For example, is a $1 million umbrella enough? The savvy insurance professional will carefully review the umbrella policy with the client to confirm that the umbrella policy meets the client’s expectations with respect to limits and the exposures it covers. As in many other lines of insurance, personal umbrella policies differ in the amount of limits they offer and whether they “follow form” to cover the underlying risks covered by the primary policy.

Placing personal umbrella policies can result in large E&O claims if the placement is not handled with care. Imagine a storm is coming and you hand your customer an umbrella that is too small, has holes in it, or simply does not open. Will they be pleased with the service you provided? Doubtful. Experience tells us that your agency is likely to be soaked financially by the time that customer is through with you.

About the Author
Brian Butcher is a vice president, claims expert with Swiss Re Corporate Solutions and teleworks out of the office in Overland Park, Kansas. Insurance products underwritten by Westport Insurance Corporation, Overland Park, Kansas, a member of Swiss Re Corporate Solutions. 


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Have questions about your E&O or need a quote?
Contact IIAT Advantage E&O’s Cari Senefsky or Gunnar Kephart at 800.880.7428.

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InsurBanc’s David Tralka Discusses Whether it is Better to Build or Buy

In a recent Insurance Journal article, InsurBanc’s David Tralka’s discusses organic vs. inorganic growth and which option is better for growing your agency.  With interest rates rising again, agency owners need to take a look at all of their options, whether that is investing in producers and technology or acquiring a new book of business or agency. Both investing in your agency, and building your agency organically offer many rewards, but what plan makes sense for your agency in this rising interest rate environment?

Click here to read the full article.

 

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IIAT Advantage partner InsurBanc is the bank of choice for Texas Independent Insurance Agents. Learn more.

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The Nitsche Featured in IA Magazine: Your Agency Could Be Next

Independent Agent Magazine is looking for Texas agencies and agents to feature. Each month, Independent Agent magazine highlights a rock star member agency in the monthly Agency Profile department, as well as an individual agent on the back page, Declaration of Independents. The August issue featured an agency profile on IIAT member agency The Nitsche Group in Giddings. Read it here.

Get Featured in IA Magazine!

Are you an agency with a great story to tell? Are you a trailblazer in the tech space, or someone who has found success in a niche market, for example? Contact IA Magazine. Email Jacquelyn Connelly, senior editor, and Will Jones, IA assistant editor, with contact information.

Nitsche Insurance Agency

The Nitsche Group in Giddings was recently featured in IA Magazine.

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Trusted Choice® Launches ‘I Am’ Campaign

Insurance customers should know their agents. That’s why Trusted Choice® launched the new “I Am” campaign for independent agents t​o help them show their clients a more personal side of insurance. Complete with print ads, digital graphics and videos, the campaign enables agents to provide a snapshot of who they are and how their local ties benefit their clients—from being active in their community to being there when their clients need it most.

Each advertising element can be customized with a photo and agency-specifici-am-having-baby information, enabling agents to make the ad their own. The postcard ad also provides a place for agents to add their agency logo, helping strengthen their brand.

To access or order any of the campaign content, you must first sign in with your Big “I” member email and password. If you do not know your Big “I” password, click the “Forgot Your Password” link. View the campaign content.

For more information about the campaign, contact Madeleine Stern.

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Coming Soon to Texas: NAIC Data Security Model Law

On Oct. 24, 2017, the National Association of Insurance Commissioners (NAIC) approved the Insurance Data Security Model Law to address cybersecurity risks and set guidelines for licensees.

Our distribution channel needs to keep in mind that while this is a model law, states are already using it as their template for adoption. South Carolina was the first state to adopt the NAIC model law—almost in its entirety—and other states, such as New Jersey, are currently in the process of reviewing it.

While the law contains many details, some are particularly important for insurance agencies that handle personal information of clients and employees.

At the core of the model law is a focus on safeguarding consumers’ nonpublic information.  Among the requirements placed on licensees in the event of a cybersecurity event is notification to the insurance commissioner no later than 72 hours after the discovery of an event.

For more information on the NAIC model law, check out a detailed article on IAmagazine.com, which breaks down the compliance regulations step by step.

The Agents Council for Technology also created the Agency Cyber Guide 1.0 to help agents understand individual regulations and the consequences of noncompliance, and to provide resources on all cyber regulations, including the New York Department of Financial Services cybersecurity regulation and Gramm-Leach-Bliley.  

If you have additional questions about data security, contact ACT​

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TWIA: Hurricane Harvey Claim Deadline Approaching

The anniversary of the date Hurricane Harvey made landfall on the Texas coast is quickly approaching on August 25, 2018. Texas law requires TWIA policyholders to report claims for windstorm damage within one year of the date the property was damaged.

We are asking for your assistance to share this important information with your clients and fellow agents about TWIA claim deadlines, so we can ensure all TWIA policyholders have submitted their claim for windstorm damage by the applicable one-year deadline from when Hurricane Harvey caused damage to their property.

If a TWIA policyholder already has a claim with TWIA for damage resulting from Hurricane Harvey, they do not need to report a new claim. Policyholders may simply provide TWIA with information about the damage that has not been addressed as part of their existing Harvey claim. This can be done by:

  • Contacting their current claims examiner, or
  • Reporting the information along with their claim number to TWIA’s claim-reporting service (800-788-8247) or to claims@twia.org.

TWIA policyholders who have never submitted a Harvey claim and need to report a new claim, may also do so by calling TWIA immediately at 800-788-8247. Additional information about the TWIA claims process is also available on the TWIA website at www.twia.org/claimscenter.

Should you have any questions or concerns, please contact TWIA’s Agent Services team at 800-788-8247 or agentservices@twia.org.

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4 Reasons Why Smart Execs Use Recruiters

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In literal terms “to recruit” means “to raise or strengthen.”  Professional Recruiters strengthen the organization by raising the talent bar while saving valuable Employee Resources.

It’s a widely known tactical practice that top executives use Third Party Search Consultants i.e. Recruiters and Head Hunters to hedge the competition. In the hands of the right Recruiter, companies save big money and time. But what about the less obvious yet equally impactful BENEFITS to using Recruiters, let’s unveil…     

Prevent job orders from going stale:
Dodging this impact is paramount to attracting top talent and promoting healthy corporate image. How does this happen? One reason is that the hiring authority’s perception of talent is not in line with current market trends. Maybe it’s a department where turnover has been relatively low, yet due to retirement or need to increase production, adding staff is eminent. However, the job market is constantly evolving. It’s no longer the recession, employee preferences change. They’re asking for more flexibility and getting it. Subsequently, certain industries like insurance, that typically set up Regional Hub Offices designed to capitalize on existing talent pools teaming with ample workforce readiness, are finding it harder and harder to leverage this source. Why? Because a number of these pools such as Claims and Underwriting are drying up, causing certain positions to stay open for months. Partnering with the right specialized Recruiting Firm, that recognizes the unique hiring challenges specific to your industry, creates a winning formula to solve many recruitment dilemmas.

Avoid Warm Body Syndrome:
Ever had a vacancy where the initial sense of urgency was minimal, a need verses want? Recruitment process takes the normal course; engage HR to open the requisition post job then wait. Weeks later a few external candidates surface who could do the job, and even though there was an internal referral who definitely could do the job, you let them slip away because they lacked, WOW. Then, almost overnight, the unexpected resignation occurs. This want is now priority numero uno!  Uh, contingency plan? Just putting any warm body in the job or by following the Golden Rule “always be recruiting,” may not be enough. Efficient and effective hiring authorities know it is essential to develop a strategic relationship with a known industry Recruiter. Then you will already have a robust pipeline from with to choose your WOW.

Remove the “Hirethink” Goggles:
Applying “Groupthink” premise to Corporate hiring practices, hiring authorities within organizations innately make hiring decisions trying to promote harmony and conformity, yet despite the best intentions to minimize conflict and reach consensus (taking the path of least resistance), these decisions can yield irrational outcomes (bad hires). External Recruiters disrupt this unhealthy phenomenon. How? They’re not wearing corporate goggles. While Recruiters appreciate client-corporate values and should keep at the core of every effective search process, Third Party status frees them from the corporate bias, red tape and politics that can cloud internal search efforts. Enabling Recruiters to help identify then deliver the BEST candidates for your job.

Unlock Passive Candidate Access:
In the data driven world of lead generators, job boards, virtual RPO’s, and Social Media outlets, why does the demand for niche industry search firms continue to rise? Supply & Demand, absolutely! Another explanation is ACCESS. Savvy Executives know that real time access to resources albeit financial, technological or human is vital to running a healthy productive business. Niche Recruiters generate value by providing access to passive candidates, the “A” players who are busy creating profit for their current company not applying to job boards or responding to countless unvetted “in-mails.” Can’t tell you how many daily conversations (yes, actual telephone conversations) in our office occur between us and passive candidates that begin with… “this opportunity sounds interesting …I was emailed about something like this but never responded because…”  What if this candidate could have been your next superstar? What’s the cost of this lost revenue? What’s the exponential value they are adding to your Competitor’s bottom line?

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Still convinced your company “always” hires the best?
When in doubt engage a Pro, a  Questpro.

IIAT has partnered with insurance recruiting specialist Questpro to help IIAT members hire, train and retain the next generation of insurance professionals.

Get 5% Off Questpro’s Hiring Services

IIAT members get an exclusive 5% discount on Questpro’s staffing services and a portion of the fee will go to support ELITExas, IIAT’s young professionals group.
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TDI Reminder: Deadline Approaching to Report Harvey Claims

As the anniversary of Hurricane Harvey approaches, the Texas Department of Insurance is reminding Texans that some insurance policies have a one-year deadline to file claims.

Harvey made landfall August 25. Texas Windstorm Insurance Association (TWIA) claims must be reported by the one-year anniversary of the date the damage occurred unless the policyholder can show good cause for the delay.

To file a TWIA claim, go to www.twia.org or call 1-800-788-8247.

 

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IIAT Joins TAHU in Filing Amicus Brief

Recently, IIAT joined TAHU (Texas Association of Health Underwriters) in filing an Amicus Brief in the case of Papalia vs. Richard Bryan, currently pending on appeal at the Texas Supreme Court.

Q: What is the issue that IIAT and TAHU is concerned about?

A: The original lawsuit involves a transaction in which an insurance agent set up a Welfare Benefit Plan in an effort to reduce the taxes paid by a small business and its owner. This plan involved the purchase of a premium variable life insurance policy, which resulted in the insurer’s payment of a large one-time commission to the agent.

While the agent was not a certified financial advisor, the plaintiff presented evidence at trial that the agent acted as his financial advisor and that the plaintiff relied on him as such. After the IRS audited and challenged the tax deductions, the business owner sued the agent for fraud and negligent misrepresentation and obtained a jury verdict for return of the commission and out-of-pocket losses, as well as $2.5 million in exemplary damages. After the trial court granted judgment notwithstanding the verdict and ordered that the plaintiffs take nothing, the plaintiffs appealed.

On appeal the Houston Court of Appeals reversed, concluding that there was sufficient evidence to support the jury’s fraud finding on the plaintiffs’ failure to disclose theory. In so ruling, the court rejected the agent’s argument that he had no duty to disclose a commission paid solely by the insurer based on Section 4005.004 of the Texas Insurance Code.

This statute says that an agent who accepts compensation from a customer may not also accept compensation from an insurer unless the latter is disclosed and approved in writing by the customer; however, section 4005.004(c)(3) of the statute also says that it does not apply to an agent whose sole compensation is derived from commissions or other payments from the insurer. Despite this provision, the court of appeals suggested that the agent could have had a duty to disclose the commission because he was also acting as a financial advisor or under various scenarios where the common law has recognized a duty to disclose. In other words, the court did not interpret section 4005.004 to relieve an insurance agent of a duty to disclose a commission in all circumstances. This interpretation would seem to render the statute meaningless and potentially impacts all insurance agents in Texas in the sale of any product involving a commission. If applied across the board, the case would mean that every Texas agent has a duty to disclose every commission they receive on any product, whether paid by the carrier or the consumer.

Q: What does the brief say?

A: The crux of IIAT’s and TAHU’s argument is that the appellate opinion in this case ignores the plain language of the Insurance Code, which only requires commission disclosure for an insurance agent if that agent is paid by both the consumer AND the carrier. It clearly excludes disclosure if the commission is only paid by the carrier (which was the case for Mr. Bryan). By doing so, it creates uncertainty for agents everywhere as to when and if we are required to disclosure commissions. It will also lead to an increase of litigation filed against agents for failing to disclose in all cases.

The legislature carefully considered the issue of when to require agents to disclose commissions and the law it passed on that issue is codified in the Insurance Code. We encourage the Court to uphold and follow the law as written since it is the job of the legislature to decide these issues. It is not appropriate for one appellate court in Texas to create a different and conflicting duty of disclosure. It will create chaos in the marketplace if that court case is allowed to stand.

The brief does not expressly or impliedly argue against the idea of disclosure in any way. It in fact states that consumers are free to ask their agents about commissions and find another agent if theirs will not disclose a commission. The Brief makes clear that we are only asking the Court to follow the current law on this issue for purposes of consistency. Our Brief does not argue that agents should not be required to disclose commissions or imply that we would oppose a requirement to do so.

Q: What happens next?

The Plaintiff filed a Response to our Brief, asking the court to disregard our arguments. The Texas Supreme Court now gets to decide whether to take up the case. The Court doesn’t have to issue an opinion on every appeal that is filed so it is possible the Court will do nothing and let the appellate court opinion stand.  Typically they take up cases of first impression (an issue that has never been decided before) or cases where a conflict between appellate courts or statutes exist.

Our hope is that we have convinced them some clarification is needed on the Insurance Code interpretation in this case and they will take it up. We will monitor it and provide you with updates on the Supreme Court’s actions. We are hopeful the Court will overturn or clarify the holding in this case which sets a confusing precedent that agents may have an additional duty to disclose commissions above the one required by the Texas Insurance Code. We will inform the membership once that occurs.

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