Cobine Carmelson

What is the dirty little secret of Insurance?

Jason — Tue, 01 Nov 2011 09:00:00 +0000

There are hidden clauses that loom large in policy documents and some are more sinister than others. Here I explain what the secret is, why it is dirty and how it’s still a secret.

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What is insurance companies dirty little secret?

The insurance market has a reputation of escaping from legal contracts using small print.

When businesses have a dispute they often seek legal recourse. The complainant will sometimes have insurance to cover such disputes. They ask their insurer to cover the cost of taking action yet policies prevent insurance buyers from taking action against insurance companies. Not much help if an insurance company has refused to honour the policy they issued.

Insurers do not make this clear. It’s difficult enough when commercial disputes arise, it’s galling to find that you have been given a false impression by the people you had invested in. Insurers paying claims want to reduce the most obvious or exclude them. It’s unfair when the exclusion prevents you taking action against a supplier that has obviously got something wrong – as is often the case when claims are badly handled. But for insurance companies to close ranks in this manner, that’s pretty low. Whatever their reasons.

Why it is dirty?

Because it’s industry wide, it’s tantamount to a cartel. Have all insurers secretly agreed that they will support claims against any industry except their own? If not, why hasn’t an entrepreneurial insurer stuck their head above the parapet and issued a policy that covers taking such an action?

Insurance disputes are common and it’s not always the broker that makes a mistake. Insurers are often culpable yet it costs almost £20,000 to take action against them. That is bad for UK business. Of course, it could be down to the fact that the insurance actuaries have worked out that insurers nearly always win cases. I suspect this is because complainants often run out of money to fund their legal case. If I’m right the figures will always be skewed.

Why it’s a secret?

I doubt if insurance companies place this exclusion at the back of their policies by accident. It’s not front and centre as you would expect such a sweeping exclusion to be.

There are other secrets in policies that are difficult to unearth and comprehend. Yet the dirty little secret of not allowing your client’s to take action against your competition is the most sinister show stopper.

Wrap up: Insurance companies do not pay claims when the insurance contract between them and their policyholder has been breached. If they refuse to pay a seemingly valid claim policyholders need to dig deep to ensure they get what is due to them.

Top Tip: Spend time assessing the key risk to your business and make sure you understand your insurance policies which are legally binding contracts. Make sure that important contracts and agreements are not excluded from your policies.

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Accountants insurance is changing

Jason Cobine, Insurance Expert — Tue, 31 Aug 2010 05:00:43 +0000

Accountants indemnity changes 1st September

I thought you might be interested to hear about the new rules for accountant’s professional indemnity. Here I explain why it’s important to make an early report of claim circumstances, where problems with timing could occur plus a clear definition of what should be reported.

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Why should I report a minor concern?

Some policyholders believe that premiums go up if they report scenarios that are not really claims. If they don’t report a “circumstance” it proves to be a false economy. When the rules change it’s even easier to make a costly late notification.

Claims don’t happen often yet the early warning signs are common. Questioning fees, complaints about service and a lack of communication are typical indicators that a client or third party may become litigious. Especially if they don’t get their own way.

Have the new ICAEW rules made it clearer?

The new wording applies to cover effected on or after 1^st September 2010 and makes it clear that claims can and will be declined if “circumstances” are not reported before the expiry of a policy. The intention is to ensure that insurance companies are aware of possible claims before the policy expires.

There is no longer a wishy washy wording – previously insurers refused claims notified later than they would like. This was despite the policy being on a “claims made” basis meaning claims made after the expiry would be covered if the work was completed during the period of cover. The terms of notification were not clear.

Now, possible claim circumstances not reported within the policy period will not be covered. Period.

What is a circumstance?

Definitions in policy wordings can be subtly altered without the policyholder noticing. Insurance contracts are full of detail. A “circumstance” is anything likely to affect the underwriters view of the risk. That doesn’t mean all complaints should be reported.

It’s ridiculous to report all complaints so ask your insurance supplier to interpret what is termed reasonable by your insurance company. There is no need for the new rule to result in more red tape. The fact that I’m writing about it means it probably will at the change is embedded into the policy wordings. That is not the intention, it’s just the devil is in the policy detail. We all want claims settled promptly and correctly.

Wrap up: Attempts to make policies clearer add to confusion. Indemnity policies have strict timescales for reporting claims or circumstances. Guidance on what a circumstance is should be sought before a policy expires, ie. before the renewal date.

Top Tip: Uncertainty is not good for anyone. Ask your insurance supplier for clarification of expiry dates, notification deadlines and clarify what “circumstances” are real in your World.

Solicitors frustrated by broker tactics

Jason Cobine, Insurance Expert — Mon, 23 Aug 2010 07:00:06 +0000

Now silly season is upon us, I thought I would update you on what is actually happening in the solicitor’s indemnity market. I know quite a few solicitors and I understand their frustrations. Rather than wax lyrical, I’m going to stick to the good, the bad and the ugly in the current market.

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The good

There are a lot of hard working brokers out there who are satisfied that they have strong enough relationships with their clients and are not using “hard ball” tactics to scare their clients into renewal. You probably have one of those on your side and your terms and conditions will be reasonable.

Ensure you provide full and detailed information when requesting your renewal terms.

The bad

There are two realities to explain. A solicitor received his form, returned it and was given terms within 48 hours. He was also given 7 days (make that 5) to make his mind up. That’s not even legal.

Another practice (with the same supplier) has incorrect “claims” on the practice’s record and the supplier is refusing to correct them. Naturally, they are worried that the terms will be provided late and prove onerous.

The ugly

Some practices (mainly SP’s) have been refused terms by their current insurer already and are filling out forms (more in desperation than hope) whilst considering their future if they cannot find cover. Their supplier should have helped them with the complicated forms.

The reason for declinature is not being made clear or doesn’t add up. One broker refused to tell their client which insurance companies they had approached. That is not service as it leaves the policyholder with no real options.

Wrap up: Some suppliers are great at maintaining relationships and have secured excellent terms. Others are playing hard ball when they do provide terms, taking advantage of the fact that the competition need time to offer an alternative. Some are being obstructive or abandoning clients they cannot easily help.

Top Tip: If an application is declined request a detailed reason before applying elsewhere.

Litigation expenses insurance – Before or after?

Jason Cobine, Insurance Expert — Mon, 26 Jul 2010 22:55:45 +0000

Insurance for legal expenses has evolved along with CFA’s. Client’s may prefer the new “hybrid” offerings that allow them to pay later. Timing is of the essence and there are ways to attract the most favourable rates.

Insurance as an investment

Appropriate policies are an investment if set up correctly. Some insurance companies will accept payment of the premium after the case is concluded and they have a variety of ways to ensure that it is paid. Typically, client’s that have already assessed they have a good chance of winning the case before approaching the insurance market receive the best terms.

It’s important that the terms and conditions of the policy dovetail with other agreements. Only then will the policy pay out, return on investment is guaranteed when everything is in order. As long as the policyholder is aware of the terms and conditions, so they know exactly where they stand.

Interpretation is everything

Insurers will not issue cover without undertaking a thorough review of the circumstances. Provide them with a good case backed up by counsel’s opinion and they will respond accordingly. Investing time at this stage will ensure terms and conditions are favourable.

No two policy wordings are the same so interpret the terms in the worst possible light to exclude shades of grey. If it sounds like it isn’t covered, it probably isn’t. The brochure will paint a picture, the policy wording is the High Definition document.

As an independent broker I am (almost) professionally obliged to say you should refer to an independent broker. Be that anyone you choose, they will be able to interpret the policy conditions and the manner in which different insurance companies handle settlements. Each quotation should be judged on it’s merits.

Timing is of the essence

The earlier you apply for a quotation the better. If clients are relying on After the Event Insurance it is more expensive and restrictive than annual arrangements. As soon as you hear about a claim encourage the participant to at least consider cover. They may already have cover attached to another policy yet it will only apply if a notification is made early.

Delayed applications could mean increased percentages of awards being deducted from your costs or the clients award – if there is one. An insurance company will ensure it receives it’s premium. Where it comes from is up to the applicants.

Wrap up: Insurance is a prudent investment for strong cases. Terms and conditions from a range of providers can be assessed quickly and easily by an experienced eye. A strong case presented early will attract the most favourable settlement terms.

Top Tip: Don’t search the market yourself if your time is worth money.

Solicitor’s professional indemnity concerns

Jason Cobine, Insurance Expert — Mon, 05 Jul 2010 23:07:00 +0000

Some solicitors are still punch drunk from last year.

With fewer insurance companies offering cover this year solicitors need more help than ever. Some are rolling with the punches, others have already given up. Here are the options including the good bad and ugly.

Last year the renewal season lead to the dreaded ARP charging solicitors 35% of turnover just to stay in business. Since then, Quinn has proved unreliable and their biggest supporters in the broking community are scrambling round the market for a viable alternative. The Law Society Gazette reports that mergers are on the up and “the biggest driver over the next few months will be the professional indemnity insurance renewal, which will be a killer of many small firms”.

Why are there fewer realistic options?

Some brokers refused to allow Quinn to buy books of business at unsustainable rates. Yet they are no longer offering terms. Meanwhile, two other solicitors indemnity insurers have exited the market, albeit quietly.

The remaining underwriters will be offering the best terms to those they consider the lowest risk. Does your broker know how they work that out? If so, they should have told you last year what further measures would be prudent. Some solicitors will fail to secure terms based on their management of the real risks.

What of the ARP?

The ARP is not being disbanded yet there will be no room for startups any more. Anyone that does find themselves in the ARP will have 12 months to get out rather than the current 24. They will have to pay the inflated rates and meet the SRA training requirements at their own expense. If they are not out of the ARP in 12 months there are three options.

First is getting accepted by an appropriate insurance company because of the reduction in risk. The second is a choice between selling up and closure, whilst paying the premium for run-off cover.

How can solicitors help themselves?

A plan that identifies the risks that underwriters want to see reduced has proved beneficial to the new practices that launched this year. There is no room for new practices in the ARP so they have to have robust plans. There are specialists who have years of experience who can identify weaknesses quickly and plan to reduce the risk. We recommend a chat with experts like Roger Flaxman.

Last year I mentioned the good, bad and ugly. Here’s an updated version.

The Good

An insurance underwriter is unlikely to offer terms to a practice if they see the same proposal form from two different practices. If you are 100% satisfied with your broker ask them to approach your current insurance company as soon as possible.

The Bad

Not everyone has relationships with underwriters that understand the risks. If you’re not certain your supplier fought hard enough for you find someone that will. There are insurance companies that are ready to help those that are managing their risks.

The Ugly

Some solicitors will fail to arrange cover; the ARP is a temporary safety net that hurts. Clearly, the stability of the insurance company is paramount and if another falls over after the renewal season the consequences are dire. If no qualifying cover is found the practice is immediately liable to pay claims. Four weeks without cover and the ARP accepts claims yet will seek to recover any costs from the principals of the practice.

Top Tip: With fewer options the ARP is a worrying possibility. Securing terms from a stable underwriter is paramount. Yet asking more than two brokers to help may prove costly. Those with plans to manage risks will be cherry picked by underwriters who offer the best terms. Make sure you can prove your risks are being reduced. If you’re not sure how, contact Roger.

You don’t want insurance companies to pay fraudsters – especially if they’re using your premium

Jason Cobine, Insurance Expert — Mon, 15 Feb 2010 09:00:41 +0000

Have you contributed to Madoff’s legal defence costs?

Not all insurance disputes should be won by the insured, especially if they are fraudulent.

Usually I’m furious when I hear that an insurance claim has been declined. This time I was pleased; Lloyd’s of London successfully defended themselves in a US court when Madoff tried to appeal that Lloyd’s were wrong to cut off the funding of his defence costs.

Lloyd’s had already parted with $4million whilst the legal eagles prepared their cases. They pulled the plug after one of his cohorts pleaded guilty to fraud of one sort or another. Evidence of illegal acts is one of the triggers for insurance problems. Once an allegation is made underwriters will refuse to continue paying defence costs or any damages awarded. Until then, the policy wording (a legally binding contract) meant that they were obliged to pay for defence costs for Madoff, other Directors, Officers and decision makers of the company that purchased the cover.

This may seem odd yet the wording of the contract states that there has to be evidence of fraud, or another type of breach, before insurers can turn off the claims tap. In this case, the reason for the admission of guilt could be anything from a guilty conscience, a shorter sentence, a smaller fine or some form of persuasion that you and I won’t know about – having not been accused of infringing the law or fleecing thousands of innocent investors.

The defence costs are covered if one of the “controlling minds” of a company (or charity) is accused of a “wrongful act” in their duty as a director (or trustee). Breach of fiduciary duties is considered a wrongful act yet it is not covered if illegal or deliberate.

There are loads of other examples of what are considered wrongful acts and surprisingly few exclusions on these policies. That’s because they’re a relatively new form of cover. Over time, as claims that shouldn’t be paid are, underwriters will start to exclude the most common instances. Most policies don’t cover fines or punitive damages. They are there to protect the innocent, not the bloody minded.

So how do you know if you contributed? If you have such a policy with a Lloyds underwriter part of your premium may now be lining the pocket of one of America’s legal eagles. If you see a picture of them when this truly momentus case comes to court (Jacko’s lawyers became celebrities) consider that you might have funded their tie or specs. Which isn’t so bad if they’ve got taste.

You can’t prevent your premium being used to defend people that appear to be crooked yet you can ask your insurance company for a summary of claims they have settled. If you think they’re settling claims that you won’t be making perhaps you can choose an alternative which is more appropriate.

Top Tip: You can defend yourself against your own innocent mistakes and even wrongful acts of your peers. Make sure you don’t turn a blind eye and assume that insurance will protect you. Insurance protects income and reputation if arranged properly. It will not prove useful if things have been ignored or buried.