DON’T COUNT ON THE SURPLUS LINES MARKET TO SOLVE YOUR PROBLEMS
by Curt Pearsall
In dealing with the E&S market, take these E&O precautions.
Before you go to the Surplus Lines market, be sure to educate your staff on the uniqueness of this marketplace:
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Many E&SL carriers require their own apps. Don’t get caught in a situation where you need to bind coverage and the carrier wont do so until they have their app.
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You’ll need to complete affidavits to show that the standard market won’t write your risk
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Since Surplus Lines is free of rate and form in most states, the forms might not be familiar. Make it a standard practice in your agency to review new policies and to compare them with the old forms. If you can’t get comparable coverage, notify the client. Be sure to request a copy of the policy form from the wholesaler.
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Check the financial rating of the Surplus Lines carrier. If you’re not sure, ask the wholesaler. Remember: there’s no Guaranty Fund with Surplus Lines carriers. Exercise extreme caution!
Here’s an E&O claim that illustrates these issues:
The claim against the agency was for failure to provide a client tavern owner with adequate Liability coverage. There was a fatal shooting at the tavern when a 14-year-old girl attempted an armed robbery. An intoxicated patron tried to disarm the girl, but was killed in the struggle. The patron’s estate sued the tavern for failure to maintain safe premises.
The agent submitted the lawsuit to the General Liability carrier, who denied the claim on the basis of an Assault and Battery exclusion. The agent gave notice to the Liquor Liability carrier, who also denied coverage because there were no Liquor Liability allegations in the complaint. The client then sued the agent, alleging that the agent told him that Assault and Battery coverage was included.
The agency quote was for General and Liquor Liability, but didn’t include the requested Assault and Battery coverage, even though the carrier offered it. The agent had obtained the policies through the Surplus Lines market without complying with all aspects of the application process. To add to the problem, the carrier was no longer solvent.
The agency owed the client a duty of care to train its employees to evaluate the client’s insurance needs as advertised, to explain the extent and nature of coverages sold, to remain current on insurance issues, and to determine the coverage necessary to meet the client’s needs and requests.
If the agent had documented advice to the client about the lack of Assault and Battery coverage and followed the state Surplus Lines regulations, this would have been a defensible claim.
The Surplus Lines market does a great job, but it’s different and needs to be handled accordingly. Discuss this with your staff so they don’t learn the hard way.
Curtis Pearsall, CPCU, AU, ARM, AIAF is vice president, E&O, Utica National Insurance Group. He can be reached at Utica National Insurance Group, P.O. Box 530, Utica, NY 13503, (800) 274-1914, fax (315) 734-2807, or e-mail [email protected]. This article originally appeared in the Utica National Insurance Co. E&O Bulletin and is reproduced by permission.