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Contract vs.Coverage Analysis

Property & Casualty Insurance Procurement & Litigation (Ten Things Every Lawyer Should Know)

6. The insurance application process now requires more attention.
There was a time, in the not too distant past, when most applications for property and casualty insurance did not require the signature of the insurance buyer. Agents routinely completed applications and underwriters readily accepted them without anyone’s signature on the application. This custom and practice is no more. Insurance applications have become more than just tools to gather underwriting information to determine the eligibility of the applicant for coverage and for premium determination purposes. The necessity for thoroughness and precision has greatly increased. It is more than appropriate and appreciated by the underwriter for the applicant to provide supplemental answers and explanations along with the standardized application. These relatively recent changes in the usual and customary practices of making an application for insurance can make the difference between having a claim covered and not having it covered. An ambiguity or misunderstanding can become an allegation of misrepresentation, which can lead to no coverage at all, rather than just a possible increase in premiums. Policy rescission and voiding policies ab initio are on the rise, along with underwriters using application information as “Warrants” thereby making the application a part of the policy (which has always been the case with life insurance policy applications).
These developments make providing accurate information to underwriters more than just important. Accurate information becomes the basis for the existence of the contract itself and adds an increased threshold to the concept of “utmost good-¬‐faith” which is the traditional basis of all insurance relationships. However, “utmost good-¬‐faith” is a two-¬‐way street. Insurance companies sometimes attempt to deny coverage based on conditions and exclusions that are not, and never were intended, appropriate to the situation or the claim at hand. Some prohibitions were intended to exclude coverage because the hazard is better transferred by another type of policy, not to be used to exclude an otherwise covered claim. This type of unfair claims settlement practice is rare and usually caused by poor attention to detail in the filing of a claim and/or inexperienced claims adjusters. The insurance buyer needs to be equally diligent and vigilant as to the accuracy of applications of insurance and in the filing of a claim under an insurance policy.

Lesson: Insurance applications are more important than they once were. Plan and prepare in a careful, thorough manner before submitting an application for insurance or filing a claim.

Damian J. Arguello

Risk management & insurance thought leader & influencer, law professor, coverage counsel, & insurance expert witness.

A Review of the Modern Claims Made Form

“Since its creation, “claims made” wording’s use has expanded outside of the “profession” and professional liability realm, finding use in diverse liability coverages. But the roots of “claims made” wording, and its most common use still, is found in covering the exposures created by a “professional’s” activities. As seen by the list of true “professions,” professionals are individuals who provide a service to society which, if done poorly, could cause extreme or irreparable personal or financial harm. …

The expansion of claims made policy forms beyond “professions” caused the basic “claims made” concept to diverge and evolve into two distinct forms. One evolutionary branch commenced in professional liability coverages (known also as “errors and omissions” coverages in this series) and the second branch grew out of the financial services industry and the need for directors and officers liability protection, fiduciary liability and employment practices liability (referred throughout this series as “executive liability” coverages).

Although both branches attach to the tree at the same point; greatly different “claims made triggers” have resulted. Additionally, coverage terms, conditions and definitions differ between the two branches.”

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Craig Andrews

Craig Andrews has served in multiple roles within the property-casualty insurance industry for over 43 years.   He brings to each expert witness and consulting engagement significant experience in both the insurer and agency sectors of the insurance industry.  He has a record of success as an independent insurance agent, a commercial insurance underwriter, the manager…

Derivative Suit Exposure From Officers And Directors

I do not truly understand the rationale in suing the company adjuster in a lawsuit against the Insurance Company, since he has no independent duties apart from those of the Insurance Company. However, Directors and Officers of corporations owe fiduciary duties to corporate stockholders and to the Corporate business entity itself.

What The Attorney Hired By The Insurance Company Is Not

Corporate Counsel is not properly the attorney to specifically respond for the Insurance Company to a suit against the Insurance Company.

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Steve Coombs

Mr. Coombs joined Risk Resources as president in 1992. Risk Resources is a risk management and commercial insurance consulting firm based in LaGrange Park, Illinois. Risk Resources does not sell insurance and provides consulting services on a fee-for-service basis. Common projects include risk management and insurance audits, insurance RFPs/proposal management, agent/broker RFQs, RFPs and selection,…

Michael Gay

Insurance Program Executive. Expert Witness. Insurance Educator. Risk Management. Insurance Program Executive… 30+ years of experience in property and casualty insurance program design, policy form drafting and analysis, underwriting, operations, and management of specialty programs. Expert Witness…litigation consulting in complex insurance coverage cases, underwriting practices, and agent/agency duties. Extensive knowledge of Best Practices for Insurers,…

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David Mandt

Dave has been retained in over 150 cases as a consulting or testifying expert on insurance claim handling standards and practices in both state and federal courts in a variety of jurisdictions, both at deposition and trial. He has been qualified to testify in Washington and Oregon state courts and the United States District Courts…

Areas of Expertise