Kentucky IA - September/October 2015

September/October 2015

How Much Data Can Your Agency Afford to Lose?

Page 6

How the Cloud is Transforming Cyber Liability Page 16

KESA has been hitting the road in our beautiful state for 35 years. We have been meeting with our policyholders, handling claims, visiting our agency partners, conducting SAFETY WORKSTM seminars, and implementing loss prevention programs. KESA’s goal is simple - to reduce workplace injuries and keep Kentucky employees working safely and productively.

KESA knows Kentucky.

200 Executive Park, Louisville, KY 40207 502.894.8484 | 800.367.5372 | www.kesa.org

Inside

What's

Page 6

Contents

12 Make-A-Wish® BIG Wish® Gala is Continued Success

16 How the Cloud is Transforming Cyber Liability 19 From Fountain Pen Ink to E-Files: Developing a Records Retention Policy

Page 16

26 How Risky Is It? 30 How to Integrate Tech Throughout the Customer Life Cycle

Page 30

34 Kentucky Supreme Court Decision Impacting Workers Comp

In Every Issue The Kentucky IA is the official magazine of the Independent Insurance Agents of Kentucky, and is published bi-monthly.

Editorial offices are located at 13265 O’Bannon Station Way, Louisville, Kentucky 40223.

Telephone:(502) 245-5432 Email: iiak@iiak.org Fax: (502) 245-5750 The Kentucky IA welcomes all advertising and editorial submissions. Inquiries for advertising, news releases and editorial contributions can be directed to Nikki Petrowski at the editorial office address or via email at npetrowski@iiak.org

4 From the Chair

35 Advertiser Index

5 Industry Partners

35 Classified Ads

6 E&O

35 Social Media Links

9 DOI News

35 There’s an APP for that

14 Education Calendar

Mission Statement The mission of the Independent Insurance Agents of Kentucky is to be the preeminent advocate for Kentucky Independent Agents and support their businesses and professional development needs.

www.iiak.org | September/Ocotober 2015 | 3

Chair

Officers

From the

Michelle L. Love

Chair, Owensboro 270.926.2806 David M. Houk

Chair-Elect, Horse Cave 270.286.2724 Chip Atkins Vice Chair, Louisville 502.585.3600 James D. England, AAI

Treasurer, Pikeville 606.437.7361 Stephen R. Kinkade, CPCU, AAI

National Director, Leitchf ield 270.259.5465 John Funkhouser, CIC, CWCA

Immediate Past Chair, Danville 859.236.5922

Directors Allen J. Crawford, CIC, CSRM

Somerset, 606.679.6311 Sharon B. Hill

Jamestown, 270.343.3144 Michael G. Johnson, CIC

Lexington, 859.233.1461 Aaron LaRue

Bardstown, 502.348.0050 Skip McGaw, CIC

Madisonville, 270.821.3122 Adam T. Murphy, CIC, CISR, CPIA

Cadiz, 270.522.9964 Crystal Reid, CIC

Paducah, 270.442.3533 Ray A. Robertson, CIC

Mt. Sterling, 859.498.3410

Staff Peggy P. Porter

President & CEO Crystal Brown

Administrative Assistant Katie M. Freshley

Education & Events Director Nikki S. Petrowski

Communications Director Tara T. Purvis

Marketing Director

We are approaching our annual convention and that means my year as your Chair is coming to a close. I am always amazed how fast time goes by! It seems like only yesterday I was graduating from college and beginning my insurance career. Now, I’m making college visits with my daughter wondering where did the years go?

What’s Going On? Your association has been hard at work bringing more products and services to you, our members. We promoted the Trusted Choice brand through a radio partnership with the University of Kentucky during last season’s basketball tournaments; an internship guide has been developed to help you get new blood into our industry; held 7 Regional Meetings across the state where Laura Emberton Owens taught attendees how to improve their leadership skills; been involved with events involving Eastern Kentucky University and Women Leaders in Insurance to help attract more people to our industry; introduced several new programs and services for our members including Work at Home Vintage Employees (WAHVE) and First Call Free Legal; conducted education classes (both online and on site), brought in high-level speakers at our events, attended Legislative events to help advocate for our industry needs, engaged our Young Agents with many social and business networking opportunities as well as countless other activities. Your association has not stopped this year - and it isn’t over yet!

What You Can Do One way you can help us and our industry is to become more involved in the political process by supporting our state and national PACs. KAPAC and InsurPAC are both in need of your support. If everyone could give a little, our voices would be louder in Frankfort and Washington, DC. When you see something cross your desk or an email come through, open your checkbook and contribute rather than throwing it in the trash. We are far from our goals in both PACs this year and I would love to come into convention with a good report for our membership.

Convention Highlights Speaking of Convention, we have a fantastic one in store for you! The 119th Annual Convention & Trade Show will be held on November 11-13 at the Hyatt Regency in Louisville. We are keeping the same format as last year by combining the Trade Show and Opening Reception. You will not want to miss our speakers this year. Kelly McDonald is a dynamic speaker with a message that everyone can relate to. As a special treat during dinner, speed painter, Aaron Kizer from Owensboro, will entertain us with his amazing talent and we’ll be auctioning off his 2 paintings for INVEST as well. If you’ve not seen Aaron perform, you’re in for a real treat! Register today at www.iiak.org.

Kristie Weyer, CISR

Insurance Services Director

4 | www.iiak.org | September/October 2015

Thank You As I close out my year as your Chair, I want to specifically thank some people that have helped me during this year. First of all, my family has been very supportive. Even though I don’t always get my suitcase unpacked between trips, groceries bought, laundry caught up, flowers watered, errands run, house or car straightened - they’ve just taken it all in stride. They’ve understood the sacrifices I’ve made (and they’ve made) in order for me to have this experience. I feel like I’ve had a couple of full-time jobs at the same time this year with IIAK, work and being a full-time mom and wife! Some weeks have been harder than others and I’ve only rarely double-booked my schedule!

My office staff has been spectacular! I will never be able to repay them for all of the extra work they’ve had to do and the patience they have had for me this year. I will be forever grateful to the Ford Family for allowing me this opportunity. I’m also very blessed to have such a great IIAK Board to have worked with over the years. I’ve leaned on them for support and guidance. In particular, I’ve relied heavily on the support and guidance from Steve Kinkade, our National Director, to help bridge that gap between state and national. And Peggy and her staff have worked hard to try to accomplish all of the tasks I placed before them. They’ve done a fabulous job and I’m very proud of what we’ve all accomplished this year as a team. David Houk will be taking over in November and he will do a great job as your next leader.

I appreciate your support and willingness to allow me to serve as your Chair this year. I will treasure the experience and will forever be grateful for those that have helped me along the way.

See you at Convention!

Thank You 2015 Industry Partners Premier

Platinum

Gold Acuity Bolton & Company Grange Insurance KEMI Progressive Risk Placement Services Silver Amerisafe Bailey Special Risks, Inc. Kentucky National Insurance Company Keystone Insurers Group Motorists Insurance Group Secura Insurance State Auto Insurance Company Bronze Anthem Blue Cross & Blue Shield Auto-Owners Insurance Company Countryway Insurance Company FCCI Insurance Group Kentucky Agents Finance Company KESA KY Associated General Contractors Midwestern Insurance Alliance Inc. Summit Swiss Re Corporate Solutions Westfield Insurance Sterling Burns & Wilcox Ltd Columbia Insurance Group InsurBanc

www.iiak.org | September/Ocotober 2015 | 5

How Much Data Can Your Agency Afford to Lose? By: Bob Chaput

Study shows 93% of small businesses that have major data losses are out of business in five years. Plan now for the worst case scenario.

Imagine your worst nightmare. A server overheats, starting a fire that consumes your computer room before the sprinkler system kicks in and completes the disaster process. You’ve lost facilities, hardware, network and data. Now what?

There are four primary assets needed to effectively operate an information system – facilities, hardware, network and data. In the unfortunate event of a disaster, hardware and networks can be replaced, and facilities can be moved to a new location. In fact, with the exception of data, virtually every company asset can be replaced. Therefore, your top priority should be to protect the asset that’s most at risk and hardest to replace: your data.

Businesses need to strike a balance between the level of business risk they can tolerate and the cost of perfect security. Initially, all businesses would say 6 | www.iiak.org | September/October 2015

they can’t afford to lose any data and they can’t tolerate any downtime. But protection on that scale is probably cost-prohibitive and overzealous. It’s unlikely that all applications are equally missioncritical and all systems are equally vital.

Gartner Group research found that 93% of organizations that have experienced a significant data loss are out of business within five years.

Businesses should look for a solution that incorporates the following four components: Requirement #1: Continuous Backup Only half of U.S. businesses perform data backup, and surveys find these businesses do not always do an adequate job. Because some agencies have limited or no IT staff, they perform bulk server backup sporadically, use traditional tape for backup and typically perform the task after business has

closed for the day. That means to restore data, companies can only expect to recover from the previous night. How can you eliminate this window of vulnerability? Ask your provider for continuous backup that allows data to be captured as it is changed – essentially in real-time.

Requirement #4: The Guarantee Backup and recovery software vendors will have RTO and RPO ranges within their service level agreements, but none will provide an absolute guarantee because there are too many elements outside of their control, like tape quality or the ability of the internal IT staff. Online backup and recovery services, however, are able to provide the luxury of a guarantee because the entire process is managed by experts at the service provider, and the technical components of the service are fully automated. When evaluating any backup and recovery solution provider, make sure to ask if it guarantees the recovery, rather than just the backup, of data.

Requirement #2: Automatic Off-site Storage Even if your business is rigorous about backup, are you equally rigorous about ensuring that the tape is safely stored offsite? Look for a service that provides safe and accessible data-vaulting, and transmits the data via the Internet, so physical damage to tapes or theft of tapes is avoided entirely and the data is immediately available for system recovery.

Requirement #3: Immediate Recovery Recovery is the process of restoring operations and specifically, data, after an outage or disaster. It’s an obvious point, but often overlooked: being able to immediately recover data is critical to ensuring business continuity. Online services provide a means of recovering data immediately from any Web interface. Look for a service that offers this level of convenience and control.

Establishing business continuity metrics such as RTO and RPO is critical in business continuity planning.

Devoting attention to RTO and RPO is the only way to guarantee your agency will still be able to operate in the event of a disaster. After all, when it comes to disaster recovery planning, do you want your business up and running quickly, but operating with data that’s a week or even a day old?

Bob Chaput is president of American Technology Group, Inc., a disaster recovery and data protection services firm. He can be reached via email at rchaput@amtechgroup.com.

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.

DOI News

From the Commissioner By: Sharon P. Clark

If you wonder why cybersecurity is becoming such a hot topic in insurance circles, consider these facts: • Of the 7.2 billion people on earth, 3 billion are considered “active Internet users,” meaning they access the Internet at least once a month.

• Estimates show that 2 billion of us have active social media accounts and 3.6 billion people use mobile phones.

• Worldwide, we generate 277,000 tweets, 2 million Google searches and 100 million emails every minute.

reason, states plan to review insurance company technology systems and the ability to ward off cyberattacks as part of the examination process.

Likewise, agents should consider the amount of client information stored on office systems and must take seriously the responsibility to keep this personal data as safe as possible.

The insurance industry, perhaps even more than any other financial sector, bases its reputation – even its very identity – on providing financial peace of mind to consumers.

We must work together to be sure we live up to that trust.

That makes it easy to see why cybersecurity is poised to become the single largest growth area for regulatory focus, and not just in the insurance sector. The financial sector is rising up to quickly meet the demands of this potential threat. As we see in the news, cyberattacks can have devastating results for companies, consumers and the financial system at large.

The National Association of Insurance Commissioners formed a Cybersecurity Task Force in late 2014 and has maintained a fairly aggressive work plan into 2015.

As state insurance regulators, the NAIC membership recognizes that consumer information is at risk. Many of us have experienced that sinking feeling when we are notified of a data breach and we want to do whatever is in our power to assist consumers in that situation.

It is important that we use the authority we have to monitor the activities of insurers and producers to stop breaches before they happen, when at all possible, and to move quickly to minimize damage in the event of a cybersecurity attack.

We all bear the responsibility of ensuring that our computer networks are state-of-the-art. This includes government sites, as well as insurer systems. For that

State regulators also must exercise authority over the insurers involved in selling cybersecurity insurance products.

When consumers entrust their financial and health information to companies, agents and health providers, we believe they should have the expectation that the data will be kept secure. On those occasions where data is stolen, consumers deserve to know immediately when a breach has occurred, and the entity experiencing the breach needs to take steps to safeguard the consumer against identity theft and other types of fraud.

During the recent data breach at Anthem, the company acted responsibly and contacted regulators with a plan of action soon after the breach was discovered.

Although the breach was unfortunate, we were pleased with the response and how quickly Anthem contacted policyholders to offer credit monitoring services.

The insurance industry, perhaps even more than any other financial sector, bases its reputation – even its very identity – on providing financial peace of mind to consumers. We must work together to be sure we live up to that trust. www.iiak.org | September/Ocotober 2015 | 9

© 2013 SECURA Insurance

Let’s make sure they’re safe at home.

Covering all the bases since 1900 Commercial • Personal • Farm-Ag • Specialty

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www.iiak.org | September/Ocotober 2015 | 11

Make-A-Wish BIG Wish Gala is Continued Success By: Nikki Petrowski ®

®

The Ohio•Kentucky•Indiana chapter of MakeA-Wish® held their annual BIG Wish® Gala on Friday, August 14 and for the second year in a row, Independent Insurance Agents of Kentucky, along with UAW Ford were presenting sponsors.

After a short cocktail hour followed by a silent auction, guests were greeted by emcee Lauren Adams and our very own Michelle Love gave the opening remarks. After a delicious gourmet meal, the evening attendees witnessed something not always seen by such a crowd: a wish granted live!

Honorary Wish Child, Gabe Kinderman’s dream car has always been an El Camino. As a way to both give his son a car and to have a good father-son project, his father, John, found an old model and the two of them spent months fixing it up. However, two weeks before his 16th birthday, someone stole the car out of their driveway and went on a joyride which resulted in hitting a tree, totaling it. Not too long after that, Gabe was diagnosed with a brain tumor.

To get Gabe’s mind off cancer the family wanted to get Gabe another car, but mounting medical bills and the loss of their business made it impossible.

John’s coworkers got the money to buy an old one, allowing the El Camino to become Gabe’s focus again, not cancer.

Gabe Kinderman with his first passenger, Michelle Rucinski, RN, who has been by his side through all of his treatments.

David Houk, Jimmy England, Michelle Love, Chip Atkins , & John Fukhouser

“I’ve seen more pictures of El Caminos than most people could imagine,” John said. “Every conversation Gabe had for months included the words El Camino, or as he would say ‘El chick magnet!’”

Now 19 years old and battling cancer for the second time, Gabe had no idea his wish was hidden behind the stage. Instead, Gabe thought he was getting a look at the progress from Etscorn and Son’s Auto Center then teared up realizing his baby was right behind him.

This event and its activities helped raise over $180,00 for the Kentucky Make-A-Wish® chapter.

12 | www.iiak.org | September/October 2015

Michelle Love with the Skee family.

Aiden (front right) has also been a wish recepient.

The

Program You Trust.

We’re Looking Out for You

When it comes to your agency’s professional liability insurance, who can you trust more than your dedicated E&O administrator at IIAK? For more than 30 years IIAK has provided reliable coverage at a competitive price. But, that’s not the only reason to count on your association for E&O coverage.

Here’s why: • Access to the country’s premiere E&O policy as well as access to other major E&O markets so we can find you the best coverage at the best price.

• An E&O professional dedicated day in, day out to serving Kentucky independent insurance agents and to making sure your agency has the answers and the resources it needs.

• The only market that actively works on your behalf to pass professional liability laws and protections for agents, making Kentucky a great place to operate your agency.

Coverage Options: • Full prior acts coverage • Policy limits up to $20 million • First dollar and loss & expense deductibles • Deductibles as low as $2,500 up to $100,000 • Available to both L&H and P&C agents • Expert claims administration • Legal counsel specialized in agent defense • Personal data breach protection included • EPL coverage endorsement available • Extended reporting periods up to 10 years • 10% discount for risk seminar attendance • 10% discount for an on-site audit

Contact me, Kristie Weyer, for a quote or for more details at 502-245-5432 or kweyer@iiak.org Kristie Weyer, CISR Insurance Services Director

www.iiak.org | September/Ocotober 2015 | 13

Education Calendar ____________________________________________________________________________________

ABEN Webcasts - (http://iiak.aben.tv/) Below are the classes that will earn you CE credit.

But don’t forget that there is also a vast selection of Personal Development classes available.

____________________________________________________________________________________

Annuity Basics and Where They Fit

Home Based Business Exposures

October 20 @ 12 pm EST November 12 @ 12 pm EST

October 27 @ 2 pm EST

Certificates of Insurance October 20 @ 10 am EST November 12 @ 10 am EST

Commercial Lines Claims That Cause Problems October 13 @ 10 am EST

Commercial Property Endorsements That Can Make You Money!

How Insurance Agents Can Become Invincible to Lawsuits and Save Thousands in Taxes October 13 @ 10 am EST November 10 @ 10 am EST

Make the Wholesaler you BFF! October 20 @ 10 am EST November 17 @ 10 am EST

National Flood Insurance Program: Updated through 2014

November 17 @ 10 am EST

October 21 @ 10 am & 3 pm EST November 18 @ 10 am & 3 pm EST

Data Privacy Insurance

The New Health Age: The Future of Health Care in America

October 9 @ 1 pm EST November 9 @ 10 am EST

October 27 @ 10 am EST November 24 @ 10 am EST

Directors and Officers Liability Insurance October 19 @ 2 pm EST November 10 @ 2 pm EST

Personal Lines Claims That Cause Problems November 19 @ 2 pm EST

Estate Planning Basics

Professional Ethics in the Insurance Industry

October 20 @ 2 pm EST November 12 @ 2 pm EST

October 8 @ 2 pm EST November 13 @ 2 pm EST

For questions on any of these courses or IIAK’s education program, Katie Freshley 14 | www.iiak.orgcontact | September/October 2015at kfreshley@iiak.org or call 502-245-5432

KEMI

www.iiak.org | September/Ocotober 2015 | 15

How the Cloud is Transforming Cyber Liability

By: Jacquelyn Connelly

According to a recent survey conducted by Hanover Research and sponsored by ISO, 40% of companies don’t think they need cyber coverage and 29% believe they’re already covered under existing policies.

They’re wrong.

“We spent the last year hearing about giant corporations being hacked into—Target, JP Morgan, Chase,” says economist Bob Hartwig, president of the Insurance Information Institute. “But as you get down to Main Street businesses, the reality is everyone has cyber exposure. Increasingly small risks and medium-sized businesses are looking for some type of protection.”

And as consumer interconnectivity continues to rise—Shawn Dougherty, assistant vice president of specialty commercial lines at ISO, says 30-40 billion wireless devices will be in use by 2020—cyber liability insurance must address new concerns.

“As all these devices start talking to each other more and more, what type of data is being collected?”

Dougherty asks. “What’s happening with that data?

16 | www.iiak.org | September/October 2015

As companies collect more and more data, what are they doing with that data? Is there a need for them to keep that data, whether it’s PII or PHI?” In particular, the cloud will continue to redefine the IT landscape. Offering significant benefits to businesses including reduced technology infrastructure costs, speed, scalability and enhanced security and backup capacity, it’s opening the door for new opportunities— and new risks to manage.

“Companies no longer have to require significant amounts of hardware and software—they can just outsource it, with cloud acting as a utility,” says Matt Prevost, vice president with professional risk for ACE USA. “That changes the dynamic of how much computing power they need, and it’s scalable so they can be extremely agile and extremely mobile.”

But according to a recent whitepaper from ACE Group, “Cloud Computing: Is Your Organization Weighing Both Benefits and Risks?”, today’s risk managers must fully understand the different delivery models of private and public cloud services and

how the different deployment methods and uses can impact an organization’s risk. As companies increasingly outsource cloud services to third-party vendors, they face increased cyber exposures when operating business through the cloud, including unfavorable terms in cloud contracts, loss of control of data and compromised data security.

“A lot of what we see from a claims perspective arises out of third-party mistakes, so vendors that may not have secure passwords or the contract that a company is engaging with isn’t as strong and they don’t have the strongest sense of controls,” Prevost explains—and that makes due diligence when hiring cloud providers essential.

“Let’s say when these breach events happen it’s data that is stored on the cloud,” Prevost says. “What provisions of the contract enable you to access or not access the cloud’s security measures or the forensics associated with the cloud provider? Understanding that your contract may or may not prevent that is important.”

An adequate risk management plan must incorporate a culture of privacy, first migrating lowrisk data, identifying shared security responsibilities with the provider and assessing potential security risks.

“Every employee has some sense of data security. I think we oftentimes forget that we see, we interact and we use data constantly, and it’s not necessarily

one position that’s responsible for it,” Prevost points out. “So it’s not just the CIO or a CISO or a risk manager or legal or the board—it’s really making sure everyone in the organization accepts that and implements training and really ensures that each segment of the company understands just a high level of how technology interacts with that different division.”

An increasing number of packages from an increasing number of insurers provide everything from front-end protections “to make sure that the systems are at least resilient to attacks,” to back-end forensics, “meaning getting to the bottom of what happened and remedying it,” and everything in between, Hartwig says. “The insurance piece of it can cover costs from individuals who have had confidential information stolen or lawsuits waged against the company and even various types of business interruption loss.”

It’s understanding risks like these—and communicating them to commercial clients—that eases the process of convincing smaller businesses they need cyber liability coverage. “Agent education is critical,” Dougherty says. “They need to become aware of what the exposures are for cyber, what coverage options are out there, so when they meet with their customer they can talk intelligently and demonstrate they do have the exposure and why they should buy coverage.”

Jacquelyn Connelly is IA senior editor.

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18 | www.iiak.org | September/October 2015

From Fountain Pen Ink to E-Files: Developing a Records Retention Policy

By: Richard S. Pitts

(Editor’s Note: This is the second in a series of three articles examining records retention policies for insurance agencies.)

Andy DeClair, owner of The DeClair Insurance Agency in Quincy, Kentucky, settled into a side chair in the office of his lawyer, Sarah Comfore.

“OK, Sarah, I’m a glutton for punishment. I’m back for round two on records retention issues.”

“Well, as I promised, Andy, I had the opportunity to take a look at some background materials on records retention. Since you’re going to be formulating a policy that’s based in part on the law, I think you ought to have an idea about what the law is.”

“Grab a notepad, Andy,” Sarah continued.

“We’ve got a lot to talk about.”

“…and if we factor in about a 10% change rate for new cars, new employees, and things like that, that’s over 12,600 transactions with customers a year. In the last two years, we’re talking about 25,200 or so transactions. What did you have for lunch last Tuesday, Andy?”

“I have no idea, Sarah, but so what?”

“Do you think that your personnel will be able to remember one of thousands of transactions from two years ago? Take Ted Johnson’s situation with Jumps-N-Giggles. You told me that Ted remembers something about the renewal, but does not remember how he forwarded the underwriting requirement to the insured.”

“OK, Sarah, I get it. I know we need to get this done,” Andy said, growing impatient.

12,600 Transactions a Year

“First, let’s talk about your agency now, Andy.

How many customers do you have?”

“About 5,100, at last count…that’s putting the three offices together.”

“What’s the average number of policies per customer, Andy?”

“In the neighborhood of two-and-a-quarter, Sarah.

That’s combining personal lines with commercial lines and putting all three offices together.”

“As the saying goes these days, Andy, ‘you do the math.’ If you’ve got 5,100 customers and twoand-a-quarter policies per customer, that’s 11,475 policies…”

“That’s pretty close to our policy-in-force count, Sarah,” Andy interrupted.

Documents in Litigation

Sarah continued. “This discussion is designed, Andy, to be just a reminder of the reasons why we need to have documentation available to us.

First and foremost, the documents serve as a guide to our memory and also as a trigger to our memory. For instance, if you are able to locate Ted’s e-mail in the file, and then if you show it to Ted, you’ll likely be able to have his memory jarred with regard to the entire transaction. He’s likely to say, ‘Oh, yes, now I remember…’ and he’ll be able to fill in other details. That benefit exists whether the case is in litigation or not.” www.iiak.org | September/Ocotober 2015 | 19

Sarah continued, “Also, the documentation is necessary to be able to put forth a persuasive presentation in front of the fact finder, if the case does go to litigation. In other words, as we manage our risk in business, one of the things that we do not want to take a chance on is the idea that a jury may not like Ted, or believe him, or that it may have a built-in bias against the insurance industry or insurance agents.

As a result, we want to be able to put forth documentation that supports and justifies our position. That way, we don’t have to rely upon the jury’s subjective views so much in trial.”

“From a strictly speaking legal point of view, there is also a different utility with regard to having documents preserved. When a business is trying to defend itself, one of the things that it may do is ask the judge for a summary judgment. Without delving too far into the technicalities, Andy, the purpose of the summary judgment is to prevent the case from ever even going to a jury in the first place. When the party moves for summary judgment, what they’re asking the judge to do is to say that the important facts are not in dispute and that the law favors one side so that there is no need for the jury to actually hear the case.”

Summary Judgment Motion, Anyone?

“Now, in an agency errors and omissions case, defense counsel will want to at least consider a motion for summary judgment. In many cases, the availability of a motion for summary judgment will depend upon the documentation that is present. In other words, the chances of successfully obtaining a summary judgment are greatly enhanced if the paper trail supports the conclusion that the agency should win even before any verbal or oral testimony is heard.

Sarah looked at Andy, who was taking notes furiously. She slowed for a second, and continued: “I’m just speculating here, Andy, but right now, if there were to be any claim over the amusement park situation, I would not be inclined to move for summary judgment if the agency’s actions were called into question. The primary reason why I would not do so is because the agency is lacking the documentation necessary to support its position. Instead, the only thing that we would have would be Ted’s verbal testimony 20 | www.iiak.org | September/October 2015

that he did in fact deliver the liability waiver form requirement to the insured.”

Andy looked a bit irritated. Sarah kept on: “Don’t get me wrong….this may very well still be enough to win the case. I’m just saying that I don’t think I could keep the case from a jury without the documentation.”

Sarah switched gears. “Another classic instance in which documentation is vital is in employmentrelated disputes. Most often times, these things come up when an employee is fired. The first thing that a lawyer will want to look at is the documentary file. Many times it will contain the keys to whether the case can be defended successfully. If the employer’s position is that the employee was not terminated for a discriminatory reason, but rather that the employee was terminated for a proper reason such as poor performance, it will be very helpful to the employer if the documentation shows a consistent pattern of negative evaluations and reviews of the employee, and perhaps even a warning or two that has been addressed to the file.

“Not only does this assist the employer in claiming that the termination was for a legitimate, nondiscriminatory reason, it also shows that the employer has a history with this employee of having identified and communicated the problems with the job performance. In these types of good paperwork cases, employers often seek summary judgment and ask the judge to terminate the case before it would go to a jury.”

Andy was glad for the shift. “Our HR person’s top-flight on that stuff. So, Sarah, now what about records retention itself?”

Make a policy based on probable need and use

Sarah smiled. “Andy, now that we’ve discussed the advantages of good documentation from a legal point of view, we can start to formulate a records retention policy that is based on the ultimate use to which we are going to have to put the documents. This is why our records retention policy, to start with something easy, will require that all of the documentation with respect to employee records be kept in a separate file (also a privacy concern) and that virtually all

documentation with respect to employee records will be kept for a substantial number of years.

“With respect to day-to-day operations and operational files, the records retention policy becomes a bit more difficult to generalize, but certainly we can identify the key pieces of documentation that we will need to have in order to be able to defend ourselves in the future.

These will include: the dec page; the policy; the endorsements; and, risk-specific documents.

We do not need to keep items such as routine correspondence – you know, Andy, the ‘Can you go to lunch next week?’ e-mail – and we will not necessarily have to keep promotional materials that are routinely generated by the insurer. Also, we won’t necessarily have to keep any type of simple documents, or documents we know to be stored somewhere else.

“Beyond that, we should probably have the records retention policy contain the concept that any documentation which is significant to the underwriting process or how we took the risk to the market should be retained in some format within the file. Since the liability waiver form in the Jumps-N-Giggles situation was important to underwriting, it would have routinely been made

a part of the file in our record keeping. In fact, it sounds like it may be in the file if we can ever physically locate it.

Andy jumped in. “It sounds to me that with this policy the person best in a position to determine what should and should not be in the file is the person who does the most work in connection with that file, subject to the guidance of the agency’s overall records management or records retention policy.”

Sarah nodded in agreement. Andy kept going.

“Okay, but that does not seem to address the particular problem that we have here, which is the fact that we probably did keep the record in an electronic format but yet we cannot determine where it is located on the old drive. How do we handle that?”

Electronic Storage is OK

“This is where the guidance of your information technology people will become crucial, Andy.

For some time, there was a sense that electronic records created some sort of legal problem. The problem was actually not as severe as advertised, but I’m saying that with the benefit of retrospect.

“Now, the rules of evidence which govern the use of documents in court generally will permit

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the introduction of an electronic record. In fact, the federal rules which govern the discovery (the process by which one side gains information from the other side in litigation) have recently been amended to allow for electronic discovery to take place much easier. The law is generally catching up to where information technology and storage is. Keeping records in an electronic format is not necessarily a bad thing, nor does it create a significant legal risk as a result. Probably the major risk is that you would bear the costs of trying to retrieve the information if litigation ever arose. For most medium- to small-size businesses, the costs of retrieving information are not so high that this is a meaningful hindrance to storing documents electronically, especially when the costs of electronic storage are compared to those of physical storage.”

Sarah smiled at Andy and said, “Therefore, I can say to you that your records retention policy has not yet been determined to be a failure, even though you may feel like it is one!

“Now, let’s assume for a moment that you cannot ever find the infamous e-mail regarding the amusement park risk. Subject to the problems that we’ve discussed before about defending yourself and the agency in this situation, it does not necessarily make your case any worse. It’s just simply doesn’t make it any better.

“Now, in unusual situations, a judge can actually instruct a jury that the missing piece of documentation should be presumed to be unfavorable to the party who cannot produce it. If this happened in this particular case, the judge would instruct the jury to presume that Ted’s e-mail would actually be unfavorable to the agency, that is, maybe it would show that the form wasn’t attached or discussed. It only happens when there’s been some evidence of intentional destruction, called spoliation, and judges are pretty sparing about it, but it is the major consequence of not being able to produce documentation to support the case.

“If a piece of documentation is destroyed (or simply not even retained), one of the ways to combat the missing document instruction is to

be able to say that the document laws destroyed by virtue of a pre-existing policy and that the destruction did not occur in view of the litigation which has subsequently arisen. That’s the real value of having a records retention policy – it gives you both a legal explanation for the judge, as well as a practical explanation to be able to say to a jury that a particular piece of paper was destroyed. It’s as simple as saying that’s what we routinely do.”

Andy felt a little better. He asked, “Okay, but what about my other situation involving the Lumber Mill and the policies that date back to the early 1970s?”

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22 | www.iiak.org | September/October 2015

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How Long is Long Enough?

“Here’s where we get into the issue of true records retention practices and how long do we hang on to the documents that we’ve decided to retain.

For the most part, the records retention policies that you see routinely are based off of either administrative requirements, or they are based off of what are known as statutes of limitations.

Most of us are familiar with statutes of limitations, which bar lawsuits filed too long after the important events of the case. They exist because we want to cut off stale claims and allowing people to know that, after a certain number of years, the past is not going to be dredged up in litigation.

“Here in Kentucky, there are no administrative regulations which govern insurance agencies.

In fact, there are surprisingly few documents retention policies throughout the country which are specific to insurance agencies. The New York Department of Insurance suggested that agencies follow the same guidelines that their companies to with regard to paperwork.”

“That, however, doesn’t really help with regard to the Lumber Mill situation. In fact, the Mill situation actually takes us back to the statute of limitations question.

allowed to move forward in Kentucky.

“The impact that it has on records retention policies is that we are now extending the time when we should hang on to insurance policy information,” Sarah said. “Now here’s what will really surprise you – generally speaking, this is a good thing. This is one instance in which the legal requirements and the business requirements actually mesh. Think about it this way. As the costs of storing records declines, particularly in the area of electronic storage, it becomes an easier, value added service to be able to say to an insured that we have copies of policies going back many years, especially for your commercial risks.”

(Next month – Andy and Sarah formulate a written records retention policy.)

Richard S. Pitts, IIAK’s General Counsel is also part of our newest member benefit, First Call Free Legal. Members receive up to a 30 minute phone consultation on an insurance or agency-related matter once a year at no charge.

If the matter needs more than the allotted time, IIAK members will receive a discounted hourly rate. Contact IIAK to initiate contact and use this service. Not all matters may be eligible for the service, and using the service does not by itself establish an attorney – client relationship.

“One of the things that we have been seeing develop over the past few years is a much longer ‘tail’, I think would be the term that you would use, between the time when the policy is issued in the time when a lawsuit may be filed on it. This is most particularly true with regard to the pollution liability cases. There have been a few cases here in Kentucky in which carriers have been brought in for events that go back many years. This theory is that the ‘occurrence’ happened when chemicals were dumped into the ground, but the liability does not come about until the government steps in and demands that the site is cleaned up.”

“As I understand it, that’s exactly what happened here,” Andy said.

“I’m not surprised at all by that, Andy, because generally the statute of limitations defense, or the ‘it’s not timely’ defense under the policy language, has not been too successful. Those suits have been www.iiak.org | September/Ocotober 2015 | 23

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Relax...

You understand that you’ll need to structure your professional emails differently than you would a text or a tweet. But unless you had the good fortune to take an “Email Etiquette 101” course in college, you might be unsure of what, exactly, you should and shouldn’t do before clicking “send.” Let’s clear up the cyber-confusion with a few tips for effective email communication:

You’ve offered each of your clients your email carefully before sending it. It takes a personal umbrellaRead policy. only a few seconds to glance back over what you’ve written before clicking “send”—but those few seconds could save you a lot of grief! Specifically, make sure that you’ve entered the correct email addresses.

Confirm that you’ve included all of the necessary information and proactively answered any questions that readers might have. Look for and correct any typos.

Right?

It might not be quite as relaxing as a day at the beach, but knowing you’ve done everything in your power to protect the customers who trust you to help them will go a long way towards easing your mind.

Offering each and every client an umbrella not only protects those who choose to purchase the coverage. It protects your agency from liability. And it protects your book of business, since studies show that customers who have multiple policies are less likely to move their business elsewhere.

As a Big “I” member, you have access to a stand alone personal umbrella program from A+ rated carrier RLI, featuring: Limits up to $5 million available Excess UM/UIM available in all states You can keep your current homeowner/auto insurer New drivers accepted - no age limit on drivers Up to one DWI/DUI per household allowed Auto limits as low as 100/300/50 in certain cases

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So cover your clients... protect your agency... and profit from umbrella sales!

Contact Jennifer Hopper, your RLI Administrator at: Email: jhopper@arlingtonroe.com Tollf Free: (800) 878-9891, ext. 8639 Local Fax: (317) 554-8551 Toll Free Fax: (888) 552-9891

www.iiak.org | September/Ocotober 2015 | 25

IIAK Insider magazine enlisted the help of Eric Moberg from The Moberg Group in this new series which will present various scenarios and E&O exposures.

...Not to have regular departmental/agency meetings that include training?

The “Trinity� of E&O Risk Management is communication, documentation & consistency.

Regular departmental or agency meetings allow and encourage communication among management and the staff. This is an excellent opportunity to perform training and update the staff on what is happening in the agency’s markets, changes in the industry, and reward those who have performed above and beyond. Make sure you have an agenda, and encourage participation from the group.

Not Too Risky

...Not to check policies and endorsements as they are received from the carrier or broker?

Unfortunately errors on policies are all too common. A process to check policies when received by the agency is very important. Although most policies are delivered directly to the client from the carrier, the agency still has the responsibility to insure accuracy.

Implement a procedure to check policies and downloads to catch errors and get them corrected. The worst time to find an error on a policy or endorsement is at the time of a claim and the coverage is not what was anticipated.

Moderately Risky

...Not to use a consistent suspense system to track upcoming events or transactions that require follow up

Everyone in the agency should use the same methods and system to track suspense items. Using a consistent method allows anyone in the agency to follow up on items suspended by another person in case of their absence. This helps to keep things from slipping through the cracks.

If some individuals are using their Outlook account for example, make sure they are also entering any follow up items in the agency suspense or agency management suspense system.

Moderately Risky - but Important

26 | www.iiak.org | September/October 2015

...Not to record all telephone conversations with clients and carriers?

Peoples memories are not perfect, and sometimes following a loss they can become very “convenient”. Everyone would have bought the correct coverage after the loss. Many times the only communication about an offer or explanation about coverage may have been over the phone. Make sure all of the conversations are documented with a complete description of what was discussed, offered, rejected, or changed. Make sure those discussions are confirmed with the client in writing either by letter or email, and better yet get something in writing from the client confirming the documentation.

Very Risky ...Not to have a written disaster recovery plan for the agency?

An agency may survive a catastrophe without too much of a problem given good back-ups for the agency management system and someplace to set up shop, but by how well will you be able to help your clients following a local disaster that may have affected the entire community.

The old statement “this is where the rubber meets the road” really comes in to play following a local catastrophe or disaster. Your clients will be counting on you more at that time than at any other time. Will you be there to help them?

How we help a client at claims time is where we should shine. In addition, the agency staff may be in need of help, and having a plan for everyone is critical. Just ask the agencies that survived Katrina or Sandy how important a plan was to them.

Not Too Risky - but VERY Important

...Not to use new business exposure checklists to assist in determining client exposures

Taking the chance that you have asked all the right questions in the determination of coverage to recommend is a problem. No matter how many times you have sold a similar policy, things are really never the same. Not only is it important to use a checklist to assist you in doing a thorough evaluation, it documents the fact that you have. I tell producers/sales people all the time: “it doesn’t matter if you did a good job….. can you prove you did a good job”. Having the documentation in your file is critical to having effective documentation. So, always use a checklist, and preferably an exposure checklist, not a coverage checklist.

Unless you know the exposures, you cannot effectively suggest coverage.

Very Risky DID YOU KNOW? IIAK members can download checklists by going to www.iiak.org/checklists.

Eric Moberg is President/CEO of The Moberg Group, Inc. (TMG), an insurance consulting firm working IIAK recommends The Moberg Group for Westport E&O policyholders interested in risk management auditing. The Moberg Group, a management consulting firm specializing in the operational analysis of insurance agencies, provides all Risk Management Audits for the E&O SwissRe/Westport program. SwissRe/Westport offers a five year 10% premium credit for completion and compliance with the Moberg Review Program. This credit is in addition to any other educational credits earned by the agency. IIAK members will receive a FREE Agency Operations and Procedures Manual (a $250 value) just by completing an audit with TMG. ALL IIAK members are eligible for a FREE 1-hour consultation with TMG per member/per year. Contact The Moberg Group for more information.

www.iiak.org | July/August 2015 | 27

IT’S THE RIGHT THING TO DO. Arlington/Roe. You have our word on it.

“Whether you choose Arlington/Roe for our breadth of knowledge, product line diversity, market access or industry know-how, you may be assured we are in business primarily to serve you. We will do our best to earn and keep your trust. You have our word on it.”

– James A. Roe, CPCU, ASLI, President

Managing General Agents and Wholesale Insurance Brokers

Serving Independent Agents Since 1964

800.878.9891

•

ArlingtonRoe.com

Aviation | Bonds | Brokerage | Commercial Lines | Farm | Medical Professional | Personal Lines | Professional Liability | Transportation | Workers’ Compensation

28 | www.iiak.org | September/October 2015

www.iiak.org | September/Ocotober 2015 | 29

How to Integrate Tech Throughout the By: Ron Berg Customer Life Cycle Online marketing. Social media prospecting.

Comparative rating.

Is that where your agency’s technology touch points with customers end?

The independent agency distribution channel has a huge opportunity to provide what all consumers are looking for: an “omni-channel” experience that integrates the digital interaction consumers expect while leveraging the “trusted advisor” role only an independent agent can truly deliver.

In order to succeed, agents and brokers must implement technology solutions across all phases of the consumer’s insurance journey: discovery, evaluation, purchase, experience, renewal and advocacy.

But many agents either do not have a strategic plan that encompasses the right steps in each phase, or aren’t aware of all the solutions available to them. The Big “I” Agents Council for Technology (ACT) has created a customer experience work group comprised of volunteers from agencies, carriers, vendors and other associations and user groups with the objective of creating a roadmap for independent agents and their carriers to deliver an outstanding customer experience at each stage of the customer’s journey—one that stands out from what the competing distribution systems are able to offer.

The ACT work group has completed extensive research and discussion to document the critical agent technology touch points prospects and 30 | www.iiak.org | September/October 2015

clients experience across each phase of the insurance journey. The group is now working to create a Best Practices recommendations document for agent and broker use and has also engaged a volunteer group of pilot agents who are currently using some specific recommendations and reporting their experiences, before creating a final recommendation document.

Of course, agents must keep in mind that these steps are not independent of one another—they must consider each one as a potential piece of an overall ongoing strategy.

All independent agencies now operate inside a digital world of connected consumers that is constantly evolving, and how they do business must reflect that.

This does not mean agents should discard some of the existing contact and service avenues that provide value to their customers— rather that they should supplement those with new digital support experiences that meet the customer how, when and where they want to be.

1. DISCOVERY In this first phase, a consumer is just becoming aware they have a need for insurance. It could be a young adult just moving out on his or her own, or someone who has just started or taken over a business. These people share a need for clear, easy direction and education on available insurance options and often rely heaving on Internet resources, such as Google and insurance websites. If agencies and brokerages are not immediately visible, consumers will not consider them.

Recommendations Agencies must maintain a strong online presence and ongoing engagement in order to rank as high as possible in search engine results through the following avenues: • Website • Social media • Search engine optimization (SEO) • TrustedChoice.com • Local search best practices • Keyword ranking • Blog content 2. EVALUATION This phase finds the consumer refining their research, looking for a match that suits his or her specific needs—an important opportunity for agents and brokers to stand out from direct writers and captive agents. During this phase, consumers are looking closely at the specific agency websites they have found: evaluating website content, reading online reviews and blogs and seeking education about product offerings. According to comScore’s U.S. Smartphone Subscriber Market Share Report, more than 50% of consumers now begin their research from a mobile platform—primarily a smartphone. If the website a consumer attempts to view does not feature responsive design—meaning the website adjusts its size and design to accommodate different devices—66% of consumers depart immediately.

Recommendations Agencies must ensure their websites are mobile-enabled, with a responsive design that clearly displays critical contact, product, location and other information. Agencies should also utilize social media integration to ensure the agency’s presence is visible to consumers using those channels. The agency can also utilize consumer quoting functionality on their website to gather consumer data necessary for a quote, taking advantage of alerts that enable agency staff to contact consumers immediately.

3. PURCHASE In this phase that converts a consumer to a customer, speed and ease of doing business is crucial. This is where an agency can truly enact a partnership by not only providing the

experience the customer has come to expect from their other business interactions, but also exceeding consumer expectations. A variety of technology tools can enable this immediate access and response.

Recommendations The agency should take advantage of frontend tools to engage the customer, such as online chat platforms and 24/7 availability.

During the quoting phase, agents can utilize either comparative rating or management system quoting software to offer instant rates, provided they use these tools as part of a larger conversation about the value of various product features beyond simply price. Using e-signature capability and electronic policy delivery enables customers to sign documents when and where they are available, further enhancing the independent agent’s role as trusted advisor.

4. EXPERIENCE Once a consumer becomes a customer, agencies have the opportunity to truly shine.

Today’s digital world has significantly increased and streamlined opportunities for making agent/customer touch points and providing useful information.

Recommendations In addition to building on subject matter expertise through agency videos, blogs and podcasts, agencies can offer a full-access customer portal for customers to obtain necessary policy documents, providing access to carrier documents while keeping the customer engaged with the agency. Offering a mobile application can help by adding a one-stop shop for customers who need contact information, claims functions and other policy documents. Finally, implementing “push” notifications via text could involve notifying customers of an impending storm or sharing post-storm claim information. Effectively addressing the needs of the connected consumer requires a highly responsive and proactive approach.

Agencies can and should use technology to enable a conversation between the agency and their client, building on the relationship to www.iiak.org | September/Ocotober 2015 | 31

differentiate the independent agent experience.

Using digital and technology platforms and keeping track of frequent touch points and important life events can be a huge differentiator.

5. RENEWAL OR DEPARTURE We all know how easy it is for an existing customer to shop around—we’re constantly bombarded by direct writer advertising encouraging consumers to save 10–15% in as little as seven minutes. Agents must seize this phase’s opportunity to proactively reach out to clients before their renewal and provide valueadded services that set them apart.

Recommendations Agencies should use the website quoting software discussed in the Evaluation phase, set notifications to recognize existing customers who are re-quoting and contact them in real time to discuss their needs in more detail. They should also use management system download and reporting functionality to proactively reach out to clients to explain a renewal increase before they receive notification—a strategy agencies could accomplish using a virtual review via platforms like Skype or FaceTime.

6. ADVOCACY In this phase, the client has all the experience they need to make a choice to become an advocate for the agency—or not. Client advocacy can be a powerful tool to highlight an agency’s value and attract additional customers.

Recommendations Agencies should consistently post customer reviews on their website and encourage clients to write a review for social platforms like Facebook, LinkedIn, Google+, Twitter, Yelp and others. Agencies can also utilize video testimonials from willing customers.

This is an even more powerful tool for integration in websites, emails and social media. Taking advantage of platforms like blogs can further highlight what agents and brokers are doing in their

communities, demonstrating their philosophy, value system and local presence. It’s about being social, instead of just doing social.

These recommendations are just a small sample of the forthcoming Best Practices from ACT’s customer experience work group. But it should provide agents and brokers with a solid sense of the opportunities available to help them stand out among the competition by providing the “omnichannel” experience that direct writers and captive carriers cannot.

Ron Berg is executive director of the Big “I” Agents Council for Technology.

800-226-3224 www.fcci-group.com

INDUSTRY EXPERTISE. PERSONAL SERVICE. “The FCCI Surety team excels at finding creative solutions to get bonds written.

One of the things I enjoy most is working along with an agent to help a contractor evolve from being unable to obtain bonds to being the type of contractor sought out by surety companies.”

Dan Pikar Senior Contract Surety Underwriter FCCI Insurance Group Midwest Region Now, let’s talk about your business.

General liability • Auto • Property • Crime Workers’ compensation • Umbrella Inland marine • Agribusiness • Surety Coverage available in 18 states. © 2015 FCCI

32 | www.iiak.org | September/October 2015

People who run a business know. The most valuable things

are also the hardest to get.

Your customer’s business didn’t grow overnight. It came from years of hard work, confidence in what they could do, and making smart decisions.

That’s why an insurance policy from West Bend makes sense. It protects these valuable and hard-earned businesses so your customers can focus on doing what they do best: taking care of children.

And as an Official Supplier of The Silver Lining, it’s backed by your knowledge and experience.

West Bend. Insurance your customers buy when they can’t afford anything less.

2015 Kentucky Supreme Court Decision Impacting Workers’ Comp By: Peggy Porter A recent Kentucky Supreme Court decision has dramatically impacted Kentucky Workers’ Compensation claims that involve workers who have been brought back to modified duty before the worker has reached Maximum Medical Improvement (MMI) or has been released to perform his or her normal job duties.

The ruling confirmed that if an employee is not at MMI or has not returned to working full duty at the same job he or she was performing at the time of the injury, then he or she is entitled to Temporary Total Disability (TTD) benefits. These benefits apply even if the employer has brought the employee back to work under modified duty and while paying the employee’s full salary. Essentially the worker is being paid to work and being paid Workers

34 | www.iiak.org | September/October 2015

Compensation benefits. This decision is effective immediately.

It is important to compare the treating physician’s assigned restrictions to the employee’s normal job description. Restrictions may not affect the employee’s ability to perform his or her normal job duties.

Your client may want to discontinue any modified duty work programs to avoid paying injured workers both for modified duty and Workers Compensation indemnity benefits.

IIAK is working with other employer groups to explore the best way to address this ruling.

Peggy Porter is the President & CEO of the Independent Insurance Agents of Kentucky. She can be reached via email at pporter@ iiak.org or by calling 502-245-5432.

Classifieds Acquisitions

Established Louisville agency interested in acquiring insurance agencies in Jefferson and surrounding counties. If you are interested in selling, merging, or need assistance with perpetuation, we would like to talk with you in confidence. Call R. Alex Rankin, CPCU or Steve B. Thompson, CPCU, at Sterling G. Thompson, Co. at 502-585-3277

DO YOU FOLLOW IIAK ON

SOCIAL MEDIA

NO? THEN YOU ’ RE MISSING OUT ON IMPORTANT NEWS &

EVENTS!

Find all our links at our homepage: www.iiak.org Or, use your smartphone to scan the QR codes below:

Looking for Producers

Independent with top best markets looking to expand presence in Jefferson, Oldham or Shelby counties. Wanting Personal lines, Producer or book of business to move or purchase. All arrangements possible, in strict confidence. Please send inquiries to Turner Insurance Agency, 2460 Shelbyville Road, Shelbyville, KY 40065 or call Kurt Turner, CPCU at 502-633-6060.

IIAK

Young Agents

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18 17 28 OBC 24 32 21 22 29 15 IFC 11 25 10 7 34 8 33

For classified ads or to advertise in the Kentucky IA, contact: Nikki Petrowski, Communications Director, 502-245-5432 • npetrowski@iiak.org

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