The time is now!

It is critical that we all think about the future of our agencies while we have the time.

I have heard two tragic tales this week of agencies that were left in a lurch because the agency principal was no longer able to carry out his/her duties. So often, when we think of agency perpetuation, we think of selling the agency when we are ready to retire. But, every single agency should have a perpetuation plan in place regardless of the age of owner or whether it’s a sole prop, partnership or corporation. Why? Because we are human beings and unfortunately we aren’t indestructible nor do we live forever.

The first step you need to take is to commit to making a plan for your agency’s future now. Sometimes this is the hardest step because who likes to think about the inevitable? Commit to making a plan now so that your agency has a road map to follow whether you are at the helm or not.

Are you looking to reach more insurance consumers?

Did you know that last month over 8,200 Michigan residents visited TrustedChoice.com (formerly ProjectCAP) looking for an independent agent and researching insurance topics? Your agency can have a prominent profile on the website and could be receiving quality leads from consumers who want to work with an Independent Agent.

“We have had a variety of leads from TrustedChoice.com. For the ones that are in our area, we have been very successful in converting. We have tried many lead services in the past and had all but given up on them. Since partnering with Project CAP, we are very excited to see what the future holds.”
– Great Northern Insurance Agency, Sterling Heights, MI

TrustedChoice.com is a national branding effort where consumers and business owners can shop online for insurance and connect with Big I members. The Advantage profile provides a number of benefits to you.
• Your agency is bumped to the front of the line for searches in your area, allowing consumers to connect with you and discuss their insurance needs.
• Advantage Profile agencies are the only IIABA members that can update their profiles with information to entice and inform consumers.
• Leads delivered from TrustedChoice.com are exclusive to your agency – the consumer has chosen to work specifically with your firm.
• TrustedChoice.com Advantage Subscribers have experienced a close rate over 50% nationwide for leads delivered – leading to a single close ROI.
Registration takes just a few minutes – just click on the link below to get started. Call Dan Herman at 952-715-5910 if you have questions.

Don’t wait. The sooner you take advantage of this program, the sooner you can be connected to consumers in your area!

http://ht.ly/DXOl4

What will Michigan’s legislative environment look like starting in January of 2015?

capitolWhat will Michigan’s legislative environment look like starting in January of 2015? Will it be to your liking? Will it help or hurt your business? You can have an impact in shaping the way it looks. It doesn’t always seem that way, but your financial support is vitally important to help elect individuals that understand who you are, what you do, and whom you serve. And isn’t that really the type of person you want representing you?

Here in Michigan, we have the privilege to vote for those seeking office for: the U.S. Senate, all 14 Congressional districts, all statewide offices including Governor, SOS, and AG, all 38 state Senate and 110 state House districts, 3 seats on the Michigan Supreme Court, all county offices, and numerous local seats and ballot questions.

The fall colors are here and it’s an even numbered year. It has to be election season. Thankfully, we as a free people have the opportunity to support our preferred candidates and do all we can to help.

And while voting is a privilege, and can be a powerful tool for change, motivating others to do so and getting one’s message out so voters can make an informed decision can be an expensive proposition. Will you help us help those wanting to support the independent insurance agent and the independent agency system? I hope you do so, even today!

I wish I had the “magic” formula to motivate you and your colleagues to contribute generously and to do so soon. All I can say is that your future depends on you! It depends on what you decide to do each and every day but also who you decide to invest in or to entrust with the leadership of this nation and state.

FYI, MAIA Endorsements and a brief explanation can be found on below. Questions, concerns, or comments about contributing? Feel free to contact me. You can contribute online at this link. My deepest thanks for all you do as an independent insurance agent in Michigan.

Scott Hummel
SVP for Government Relations
517-256-7350 or (shummel@michagent.org)

 

MAIA Endorsements for 2014 General Election:

Statewide Offices
Governor Rick Snyder
SOS Ruth Johnson
AG Bill Schuette

State Senate for Reelection:
4th District State Senator Virgil Smith
7th District State Senator Patrick Colbeck
14th District State Senator Dave Robertson– licensed producer
25th District State Senator Phil Pavlov
38th District State Senator Tom Casperson

State Senate Candidates for an open seat:
13th District, Former Representative Marty Knollenberg– licensed producer
16th District State Representative Mike Shirkey
17th District State Representative Dale Zorn
20th District State Representative Margaret O’Brien
28th District State Representative Pete MacGregor
32nd District, Former Representative Ken Horn
36th District State Representative Jim Stamas
37th District State Representative Wayne Schmidt

State House for Reelection:
32nd District State Representative Andrea LaFontaine
33rd District State Representative Ken Goike
66th District State Representative Aric Nesbitt
81st District State Representative Dan Lauwers
85th District State Representative Ben Glardon
86th District State Representative Lisa Posthumus Lyons
93rd District State Representative Tom Leonard
99th District State Representative Kevin Cotter

State House Candidates for an open seat:
36th District Candidate Peter Lucido – licensed producer
42nd District Candidate Lana Theis
44th District Candidate Jim Runestad– licensed producer
45th District Candidate Michael Webber– licensed producer
71st District Candidate Tom Barrett
98th District Candidate Gary Glenn
107th District Candidate Lee Chatfield

[Incumbents are evaluated by their vote record on tax and insurance specific legislation.  Candidates in open seats on interviews and where they stand on the need for auto insurance reform and how they may view businesses in general (job creator or revenue source?); if former legislators are running as is the case this year, we can also can use their previous vote records when deciding to endorse. Please direct any questions or concerns you may have to MAIA’s VP for Government Affairs, Scott Hummel at shummel@michagent.org.  Thank you.

TNCs…Risks or Rewards?

About a year and half ago, my 22 year-old son came up with a great money making idea. He decided he would hire himself out as a driver for those who had too much fun in the East Lansing bar scene. Since he doesn’t drink, he figured he could make a few extra bucks and keep people safe at the same time. In his mind, it was a win-win if there ever was one. When he brought this idea to me, I immediately crushed his hopes and dreams (isn’t that my job as his mother?) and told him why he couldn’t do that. I explained that there were exclusions in our auto policy that would apply if he used his car to transport people for a fee. Of course, he was disappointed in losing out on easy money, but he also understood (my lectures on the importance of insurance paid off!). Lo and behold, 18 months later, transportation network companies (TNCs) like Uber & Lyft have made a business of doing the essentially the same thing my son wanted to do. Of course, my answer still wouldn’t change just because national companies are involved – the insurance implications at this point in time are too great for me to ignore. Do you have clients or sons/daughters of clients who think transportation companies are a great way to make extra cash? If you do, go to our website at michagent.org and download the flyer “Ridesharing Services and Your Auto Insurance Coverage, Are They Compatible?”. We can’t ignore TNCs and it may be a great way to earn extra cash, but make sure you talk to your clients so they have the knowledge they need to make a decision that will be in their best interest.

Privacy Protection Scenarios

By Kari Quimby, CIC
AAC President

These days one can’t open a magazine or a newsletter without reading about data breach or cyber liability coverages. Our March issue of Michigan AGENT was devoted to this important topic and it will be an issue we continue to highlight and follow. Along with the importance of keeping data (in all its forms) safe, we also need to keep in mind our clients privacy rights.

A few weeks ago, a member called with a few interesting scenarios. One actually happened, and the others were “what-ifs” based on the initial incident. One of the agency’s clients called and asked an account manager to run an auto quote for her and her live-in boyfriend. The account manager ran the quote and provided the information to the client. The quote was higher than what the client thought it should be and asked why. The account manager stated something came through on the Motor Vehicle Record (MVR). The client pressed the account manager to divulge the information on the live-in boyfriend’s MVR. Wisely, the account manager declined to provide the information. This, of course, is a terrible spot for an insurance professional. You want to provide excellent service to your clients (and potential clients) but you also need to be wary of stepping over the very fine line that exists with the myriad of state and federal laws that deal with privacy. This got the agency thinking about other situations that may occur…

What if I get a phone call from a client’s adult child asking questions about coverages? You may have some clients who have asked their adult children to review their insurance coverages and to work with the agency if needed. While this is certainly the client’s prerogative, it is imperative that your staff have a copy of the client’s Durable Power of Attorney or Patient Advocate form before discussing with someone other than the insured. This holds true for any adult calling on behalf of another adult (sometimes even spouses!) If a Durable Power of Attorney or Patient Advocate form is not available, the best course of action would be to meet with the client and the adult child(ren) to answer questions/review coverages.

What if I get a phone call from a client and the answer involves a minor child? You may get a call from one of your clients after they receive their auto renewal premium with a marked increase. If the reason turns out that “Junior” had a moving violation on his MVR, you may reveal that information to the parent. However, before releasing the information, you need to verify the minor’s unique demographic information (like date of birth or social security number). Your agency should have a process in place that asks the caller to provide you with the demographic information before answering the questions. This will help insure that you are speaking with the parent about the correct child.

These are just a few instances where one needs to think twice before providing information and I am sure there are many more. What situations have your run into (of course, changing names to protect the innocent!)?

E&O Q&A with Mary LaPorte – February 2014

Agent’s questions about Errors and Omissions, and how E&O losses can be prevented.

Q:  Does using professional designations or letters behind our names create more E&O exposure? – Jon, Minnesota

A: Jon, this has been a question raised by many insurance professionals upon receiving a new designation: “Now that I have a designation, should I be afraid to use it?”

Let’s all agree, it is not always easy to obtain a designation.  I think part of the answer may lie in why we obtained the designation in the first place.  For most of us, it was a challenge of personal growth, wanting to be the best we can be. It may also have been a desire to elevate our performance and knowledge, thereby creating more opportunities for increased income. (Nothing wrong with that).  But I think many would agree that one of the reasons we pursued a designation was to learn all we could in order to do a better job for our clients.  We wanted to be in a better position to answer their questions, and to help them find the best insurance and risk management solutions.  Regardless of the motivation, the result was that we ended up with more knowledge and professionalism.

So, it is not surprising that when someone is faced with an E&O claim, the opposing side will argue that their knowledge and education have created a higher expectation of their performance.  The real question is:  Did they use their professional designation to influence the customer to expect more from them than from an agent without the designation?  If so, then their actions may have actually “raised the bar” on their performance.

Some agents will use their designation in advertising, and brag that the designation makes them a better agent.  Some will include a page in their proposal and imply that the designation means that a customer will be better protected.  In cases such as these, the agent or agency has raised the bar on themselves, and on the customer’s expectation.  This is certain to be a consideration in an E&O claim against that agent or agency.  Agencies should avoid this type of advertising or any exaggeration of expertise and knowledge.

There is good reason to be proud of obtaining your designation.  Hang that framed certificate in your office, and post an announcement in the local newspaper or Chamber of Commerce news.  It is appropriate to use the designation letters behind your name in correspondence and business cards.  When asked by others, explain what the designation means and stands for.  Some designation programs even offer brochures which you can hand out.  However, common sense would dictate that including a brochure about your professional designation in a proposal for insurance coverage might raise the customer’s expectation in a sales transaction.

There is one other side to this designation discussion, and that is the agent who knowingly creates a higher expectation because they truly believe that their knowledge and expertise should hold them to a higher standard.  If that agent is exceptional in the service provided to their clients, they are probably also taking above average steps to avoid E&O exposure.  That doesn’t mean that they are invulnerable to an E&O claim. Those agents need to recognize that in reality, they probably will be held to a higher standard and need to be prepared to address their actions at that level.

Be proud of your designation and don’t be afraid to use the letters behind your name.  But temper that pride with the reality that the way you use the designation could raise a customer’s expectations.

Mary LaPorte is a consultant and educator with a strong background in Errors & Omissions loss prevention.  Forward your E&O questions to marylp@lpinsuranceconsult.com.

2014  LaPorte Consulting, LLC.  All Rights Reserved

Selling Cyber – How to convince low-tech or no-tech businesses to buy

Cyber liability is a challenge to sell. Despite the fact that the coverage is no longer brand new, confusion and uncertainty abound when it comes to discerning exposures and coverage forms.  Don’t give up. The process of selling cyber can be simplified if you can convince your clients of three main reasons to buy it:

  1. They do have an exposure (every business does)
  2. They are likely to experience a breach
  3. Breach response is costly and complicated

Every business has an exposure

The first problem with cyber liability is its name. The word “cyber” evokes images of computer technology. Low-tech businesses such as a restaurant or doctor’s office will think they don’t have an exposure. They do. Help your clients to stop thinking of this a tech exposure. The true exposure is unauthorized release of information, and all businesses hold some form of sensitive information.

State and federal regulations require businesses to notify customers, whose Personal Identifiable Information (PII) or Personal Health Information (PHI) has been compromised, resulting in a real or suspected privacy breach. Breaches can happen in a number of ways including lost laptops, improper disposal of paper records, employee misuse, vendor release, and of course, hacking.

Businesses often mistakenly think they are protected if they use a third-party vendor to manage their information, such as a cloud provider. However, it is the data owner’s legal responsibility to notify its clients, even if a third party was handling the information when it was breached.

Breaches are becoming more common

Breaches are becoming more and more frequent, and it isn’t just the large companies at risk. A recent study conducted by the Ponemon Institute found that among 1,200 small businesses surveyed, 55 percent admitted to having experienced at least one data breach. Among this group, 50 percent had numerous breaches in the 12 months prior to the survey.  In most cases the breaches are unintentional. Over 60 percent of breaches are accidental, either caused by a system glitch or human error. (Source: Ponemon Institute LLC) Companies can no longer afford to think “it won’t happen to me.”

Breach response is complex

Have you ever had a client say, “So what if I suffer a breach? My customers won’t sue me.”  They clearly don’t understand that litigation isn’t the only concern. When properly handled, most breaches won’t result in litigation. But they are still very expensive. Why? Because the breach response process is complicated and costly.  In addition to various federal regulations, 46 states have notification laws, and each is different in terms of timelines, exemptions, applicability, and notification procedures. Even the definition of “breach” varies from state to state. Consider the following services that may be required to properly handle a breach:

  • Legal counsel to determine which laws have been triggered and how to comply with the applicable regulations
  • Forensic experts to determine the scope and cause of the breach
  • A notification service provider to send the notifications
  • Call center services to field questions from notified individuals
  • Credit monitoring and/or identity monitoring services for affected individuals
  • Fraud resolution services for victims of identity theft
  • Crisis management/public relations consulting to minimize the reputational damage caused by the breach

Breach response costs vary by industry classification and by breach root cause, making it difficult to determine “average” claims costs. A 2012 study conducted by NetDiligence determined the typical cost of breach response services to be $983K per breach. This includes forensics, notification, call center, credit monitoring and legal counsel.

Conclusion                             

Every business should carefully consider purchasing a privacy liability policy with breach response services. All businesses, regardless of industry, hold sensitive information that they must protect. Such information exists in various formats such as paper files, back-up tapes, computerized data and portable media. Breaches are occurring at an exponentially increasing rate, and breach response is time consuming, complex and expensive. Enforcement of state and federal notification laws is on the rise, which will result in fines and penalties levied upon companies who fail to comply.

Your clients can simply not afford to go bare, and neither can your own agency.

Defining The Business Associate: HIPAA’s Omnibus Final Rule Compliance

By Carmel M. Roberts, Esq.

As we forge ahead in the new, post-September 23, 2013 HIPAA Omnibus Final Rule compliance world, many of you who do not have a licensed health agent in your agency are probably asking yourselves — so what does this mean for my agency, are we a Business Associate under HIPAA? The answer, like so much in healthcare compliance these days, is not as straight forward or clear cut as we may like it.

For those of you who missed the Michigan AGENT article last month on this topic, the date, September 23, 2013 is when HIPAA “Business Associates”, which are those organizations that work with healthcare providers, health plans, administer an agency health plan, and others who are exposed to sensitive patient data (protected health information, or PHI), are required to comply with new privacy, security and breach notification rules from the U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR)—known as the HIPAA Omnibus Final Rule.

So with this date in our rear view mirror and the compliance shot clock ticking, do you know if your agency is a HIPAA Business Associate? And do you know all of the organizations that you work with that are also HIPAA business associates? It may not be as simple as you think (or hope) to know. But first, do you really need to care?
The answer to this question is a definitive “yes”. If you are considered a business associate under HIPAA and the HITECH Act, you have substantial obligations that began in September to ensure the privacy and security of patient health information, and you also have notification obligations if you have a “breach” of such information. If you are investigated by OCR and found to be “neglectful” in complying with these provisions under the HIPAA Omnibus Rule, you may find your agency subject to fines, penalties, and corrective action plans, which can be financially substantial and operationally onerous.

So let’s look at what defines a business associate. On the federal Health and Human Services Department website (www.hhs.gov), they define a business associate as “a person or entity that performs certain functions or activities that involve the use or disclosure of protected health information on behalf of, or provides services to, a covered entity.” Under the Final Omnibus Rule, the definition is further explained and clarified.

Under the Final Rule, a “business associate” is generally a person or entity that creates, receives, maintains, or transmits protected health information (PHI) in fulfilling certain functions or activities for a HIPAA-covered entity. Health information that is created or received by a covered entity, identifies an individual, and relates to that individual’s physical or mental health condition, treatment, or payment for health care is considered PHI when it is transmitted by or maintained in any form of medium, including electronic media. Notably, the new definition clarifies that “business associates” include entities that “maintain” PHI for a covered entity, such as a data storage company or any PHI stored on a server that is maintained or accessed by a third party.

The Final Rule also clarifies the definition of a “business associate” by expressly including health information organizations, e-prescribing gateways, and other persons that provide data transmission services with respect to PHI and require “routine access” to PHI. In some instances, this “routine access” can include the administration of an employer sponsored healthcare plan. Additionally, as further explained below, the new definition of “business associate” provides that certain subcontractors of business associates are also “business associates.” Due to the significance of the new rules and the imposition of direct liability on business associates under HIPAA, entities which are unsure of whether they qualify as a business associate should clarify with legal counsel.

So the healthcare world we have now moved into isn’t as simple as the previous one. How so? Well first, HIPAA covered entities, those organizations such as healthcare providers and health plans, must revisit their inventory of business associates, and based on the Final Rules, see if they have other organizations that would be considered business associates based on the clarified definitions. If so, they are obligated to have business associate agreements with those organizations.

Then second, if your organization currently works with HIPAA covered entities and has a business associate agreement with them, you would be well served to investigate and understand the new obligations that you now carry under the Final Rules. It is fairly likely that your agency may be either unaware of or unprepared to comply with the provisions of the Privacy Rule, the Security Rule and the Breach Notification Rule. There are specific actions that you must take to consider yourself in compliance. Take a look at HIPAA Final Rule compliance power points MAIA has had prepared for an outline of the steps you should consider at
http://bit.ly/hipaa_final_rule.

Third, if your organization is currently a HIPAA business associate, you now may have subcontractors that you work with that are also considered business associates under the Final Rules. You have obligations to execute a business associate agreement with them (view sample agreement: http://bit.ly/hipaa_sample_ba). And they have obligations to comply with the new Rules. And in some cases, these subcontractors may not even be aware that they are now considered business associates. Whether they know it or not, they do have new obligations. So hopefully they are paying attention.

And that brings us to our fourth item. If your agency works in any way with healthcare organizations or healthcare patient data, you should get a legal opinion as to whether you could be considered a business associate under the new Rules. Waiting for your covered entity or upstream business associate to notify you of your obligations and provide you a business associate agreement to sign, may not be the best path. They may not recognize in a timely manner that your agency is, in fact, a business associate. You would be well served to be proactive in this regard and find out for yourself if you are considered a business associate under the new Rules and, if so, learn more about your obligations.

So hopefully in reading this, you realize that there is a lot to do and consider in the wake of the September 23, 2013 implementation deadline. If you require any further motivation, note that OCR has recently completed an audit program where they audited a collection of HIPAA covered entities as to their level of compliance with HIPAA standards. The results were really not encouraging. You can check out the presentation by Linda Sanchez, OCR Senior Advisor, Health Information Privacy and Lead, HIPAA Compliance Audits at http://bit.ly/hipaa_audit. In this presentation, she notes that in the next phase of audits, HIPAA business associates will also be included.

So think about it. If you received a letter from OCR notifying you that your organization is a HIPAA business associate and that you were selected for a HIPAA privacy and security audit, do you think you’d be ready?

MAIA will continue to develop resources and services to assist our members with determining what, if any, compliance obligations they have and how to comply. ?

Disclaimer: The information contained within this article is intended to be used as an informational resource and not viewed as an alternative to legal advice provided by an attorney or any other professional legal services provider.

Carmel M. Roberts is the owner of Agency Legal Solutions, PLLC, a law firm exclusively focused on serving the legal needs of insurance agents and agencies in Michigan. Prior to entering private practice, Roberts spent 15 years serving in executive positions in government and the insurance industry; including serving seven years as the General Counsel and Sr. VP of Government Affairs for the MAIA. She is the author of over 20 regulatory compliance manuals on various issues facing agents and has been directly involved in the passage of more 680 state and federal laws. For more information on Roberts or her firm please go to http://agencylegalsolutions.com.

COULD YOU BE SERVING UP A LAWSUIT WITH THAT TURKEY DINNER?

Who is liable if a guest gets food poisoning or drives home drunk?

As millions of Americans host and attend Thanksgiving dinners across the street or across the country, many may be unaware of the risks. According to Trusted Choice® and the Independent Insurance Agents & Brokers of America (IIABA or the Big “I”) party hosts need to understand their responsibilities when inviting others into their homes and serving food and drinks.

“All hosts should be aware that if someone drives drunk or becomes sick after consuming food at a holiday party, the host could actually be liable,” says Robert A. Rusbuldt, Big “I” president & CEO. “In fact, a casserole could bring just as many risks as a cocktail. Before hosting a party this holiday season, you may want to consult with a Trusted Choice® independent insurance agent and ask questions.”

A 2012 survey by Trusted Choice® and IIABA found that almost three-fourths of homeowners had served food in their home that was prepared by someone other than themselves. That means more than 111 million homeowners in the United States have put themselves at risk for a lawsuit by just feeding their guests.

The Big “I” and Trusted Choice® provide the following tips for holiday hosts and guests.

Watch What You Eat and Feed Others: Even if food was prepared outside your home by a caterer, another guest, a local deli or the neighborhood pizza joint, YOU could be held liable if someone becomes ill from consuming it on your property. Make sure that you check food and don’t put anything out that you suspect may be undercooked, spoiled or contaminated. Use only reputable food purveyors. Follow proper food-handling, heating/cooling and storage recommendations. When in doubt, throw it out.

Mix up the Activities, not just the Cocktails: If the party centers on drinking, guests will likely drink more. Schedule entertainment or activities that do not involve alcohol. Provide safe filling food for guests and alternative non-alcoholic beverages. Know who the designated drivers are ahead of time.

Party Elsewhere: Host your party at a restaurant or bar that has a liquor license, rather in a home or office to decrease your liability.

Call a Cab, Get a Room or Have a Slumber Party: Arrange transportation or overnight accommodations for those who cannot or should not drive home.

Just Say No: Do not serve guests who are visibly intoxicated. Stop serving alcohol at least one hour before the party is scheduled to end. Stay alert and always remember your responsibilities as a host. You might also consider hiring an off-duty police officer or professional bouncer to discreetly monitor guests’ sobriety or handle any alcohol-related problems as guests leave.

Do Your Homework: When hosting a holiday party, individuals should look to the liability portion of their homeowners or renters insurance policy to protect them if they are sued and found liable for an accident involving a guest who drank or got sick after consuming food at their home. Consumers should regularly review their liability coverage limits to ensure they are adequately covered should an accident or illness occur.

Know Your State Laws and Statutes: In many states, party hosts can be held liable if a guest is involved in an alcohol-related accident. Many courts have found hosts liable for damages their party guests cause as a result of consuming alcohol and then driving motor vehicles. Many states have also enacted statutes that can be interpreted as mandating non-commercial social host liability. So, if a guest or third party is injured in an accident that is related to alcohol consumption and the drinking can be linked to you, you could be held responsible for the payment of medical bills, vehicle repair costs, lost time from work and — in the worst case — claims for wrongful death resulting in huge monetary settlements.

Consider an Umbrella Policy: While holiday partygoers and hosts alike should act responsibly and know their limits, consumers need to acknowledge that most risks cannot be entirely eliminated. But planning ahead and learning about what’s involved in hosting a reception is the best defense. Purchasing a personal “umbrella” liability policy — providing $1 million or more in additional coverage over the limit of a standard homeowners or renters policy — may be a prudent move for the frequent party host. 

“Thanksgiving dinner or even a neighborhood holiday potluck could have disastrous results for the host if someone is stricken with food-poisoning,” says Madelyn Flannagan, Big “I” vice president for education and research. “Whether the food served came from your kitchen, a five-star caterer or a pizza delivery truck, if you serve it, you could be liable if anyone gets sick.”

The survey was conducted for Trusted Choice® via telephone by International Communications Research (ICR), an independent research company in Media, Pa. Interviews of a nationally representative sample of 760 homeowners were conducted in November and December 2012. More information about ICR can be obtained at http://www.icrsurvey.com.

E&O Q&A with Mary LaPorte

By Mary LaPorte, CPCU, CIC, LIC, CPIA

Agent’s questions about Errors and Omissions, and how E&O losses can be prevented.

I recently attened an insurance education class which focused on the Personal Auto Policy. The instructor discussed many issues related to rental car physical damage. Even though collision on an insured auto can extend to a rented auto, we were told it is still best to recommend that the insured purchase the LDW (Limited Damage Waiver) from the rental car place. One reason is that the insured could be charged for Loss of Use of that rental car if damaged, and that the Personal Auto Policy would not pay for the Loss of Use. This troubled me, so I spoke to the claim manager with one of our carriers. He said they do pay for Loss of Use. Now I’m not sure what to recommend for our customers. Can you help us understand what we should do?
Robert, Nebraska

Robert, I wish there was an easy answer for your question, but there are many variables. Let’s look at them one at a time.
Under most personal auto policies there is a coverage called “Transportation Expense” which includes coverage for Loss of Use in a rental car situation. The insured does not pay a premium for this coverage, so it will not show on the declarations page. Instead, the coverage is triggered by a covered Collision or Other Than Collision loss to an auto insured in the policy. There is a limit of $20.00 per day (maximum $600), but this usually can be increased by endorsement. Most rental car businesses wil charge much more than $20.00 for loss of use of a vehicle, so you might want to discuss increasing that limit with the insured. I don’t know if this is the coverage your carrier was referring to. It is possible that some policies include higher limits than the $20.00 per day, and it is also possible that the carrier interprets their contract broadly to include Loss of Use as a liability assumed by contract.
In either event, there is still one critical issue. Loss of Use is another way of saying “lost income”. You returned a rental car with damage and now they are not able to rent it to someone else until the repairs are complete. Just because the rental car facility bills a customer for Loss of Use, does not really prove that they incurred lost income as a result of damage to the vehicle. For example: if you rented a Toyota Camry, and the rental facility has 20 Toyota Camry’s on the lot ready to be rented, when a new customer comes in, they just rent another Camry instead of the damaged one. They lost no income. What is the difference if the damaged one is sitting in the lot or sitting in the body shop? In order to really have a lost income claim, the rental facility would have to demonstrate that they had to turn away business (lost income) because your Camry was not available to rent out.
Here’s the kicker: the rental facility has no incentive to work with your auto insurance adjuster to demonstrate how they lost income. Why? They have already been paid. As soon as you brought the car back with damage, they put the damages (including Loss of Use) on your credit card. Since they already have your money, why would they want to cooperate with an adjuster who wants to take the money back? You can’t expect your insurer to pay for a loss that really never occurred, so you get stuck holding the bag.
The way to avoid all of this is to purchase the LDW (Limited Damage Waiver) or CDW (Collision Damage Waiver) from the rental facility. The Damage Waiver will allow you to walk away from a damaged vehicle without having to pay for the damage or Loss of Use of that vehicle. The waiver, however, can cost as much as $20.00 – 30.00 additional each day, so it is not cheap. Even when purchased, some of the agreements can have restrictions which would render the agreement void. In those situations it will still be good to have your Personal Auto Policy come to the rescue.

Mary LaPorte is a consultant and educator with a strong background in Errors & Omissions loss prevention. Forward your E&O questions to marylp@lpinsuranceconsult.com
2013 LaPorte Consulting, LLC. All Rights Reserved