Primary Agent - October 2011 - DE Edition by Insurance Agents & Brokers Service Group Inc

DELAWARE

ALSO INTHISISSUE: _________________ New E&O and Ethics Course On-Demand

55% reduction in total claims cost

over

HM Workers' Compensation*

Workers’ compensation solutions for both loss control and claims control. (That’s using our head.)

99%

technical & financial accuracy in claims processing

client retention

90%

Reduce risk. Increase ROI. Keeping your clients’ employees healthy and on the job takes a lot of hard work. You need an experienced partner with a smart approach to control and reduce workers’ compensation costs. With HM Workers’ Compensation, you get a dedicated, experienced service team focused on account management, loss control, aggressive claims management and return-to-work programs customized to each client’s needs. We help you take better care of clients by identifying more effective ways to control and reduce workplace injuries. We also offer a unique physician-to-physician service that helps get people back to work faster – and healthier. For more smart ideas, call 1-800-328-5433 or visit smarteranswersfaster.com.

*Performance statistics based on Highmark Workers’ Compensation Operational Performance – 2010 Report, April 2011. Coverage is underwritten by Highmark Casualty Insurance Company, Pittsburgh, PA, or HM Casualty Insurance Company, Pittsburgh, PA. Highmark Casualty Insurance Company may provide certain administrative and customer support services. The coverage or service requested may not be available in all states. MTG-2197 7/11

I’m celebrating our 100th year by planning for our next 100 years. Jason Bogart, CPCU, ARM, Vice President of Branch Operations Our future will be marked by the relationships we forge with you—the independent insurance agents who represent us. You’re the reason we’ll continue to investigate new market opportunities. Why we’ll develop competitive products. Why we’ll maximize the use of new technologies. Why we’ll emphasize ongoing professional development for our staff. By helping you profitably and efficiently grow your agency, EMC Insurance Companies will continue to serve you and your customers today and well into the future.

Valley Forge Service Branch: 800.333.3622 | Home Office: Des Moines, IA

Contents PRIMARY AGENT MAGAZINE

Thwarting monsters and mayhem

What better way to usher in the Halloween season than to tell a few horror stories. The insurance tales of terror we tell in this issue could happen to anyone. Fortunately, members have resources that make these nightmare scenarios manageable if not completely preventable. Read on…if you dare!

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New on-demand program with Jerry Milton Jerry Milton, CIC, always draws a crowd to his seminars, and now you can draw him right into your computer with a new on-demand program, “E&O and Ethical Behavior.” Approved for Utica loss-control and CE credit, this program is available anytime, anywhere there’s a Web connection.

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Mission Statement Primary Agent delivers ideas to help Insurance Agents & Brokers’ members negotiate their unique position as guardians of trust between insurance consumers and companies while facing the challenges of maintaining a small business. Primary Agent also supports IA&B’s mission to preserve and advocate the American Agency System.

Get social with IA&B

In every issue 3 4 5 6 8

Glance at Events Chair of the Board’s Message Member FAQ State News Preventing Errors & Omissions

10 23 28 28 28

Coverage Corner IA&B Partners Advertisers Index Classified Ads Last & Least

Subscriptions: Non-member price: $2.25 per copy or $15 per year. All communications for publications, including news, features, advertising copy, cuts, etc., must reach the editor by 1st of month two months prior to publication. Advertising rates furnished upon request. Address inquiries to: Primary Agent Editor Mechanicsburg, PA 17055-0763 Phone (800) 998-9644 or (717) 795-9100 Fax (717) 795-8347 Periodical postage paid at Mechanicsburg, Pa. and additional entry post office. Postmaster: Send address changes to above address. Primary Agent (ISSN 1543-3110), Permit # 638-620, Issue # 2011-10) is published monthly by IA&B Service Group Inc., a subsidiary of IA&B.

Copyright 2011. All rights reserved. No material may be reproduced in whole or in part without written consent of the publisher. The information in this publication is general in nature and is not intended to serve as legal, accounting, financial, insurance, investment advisory or other professional advice as to any reader’s particular situation. Users are encouraged to consult with competent legal, financial, insurance, investment advisory and or other professional advisors concerning specific matters before making any decisions and we disclaim any responsibility for any decisions or actions by readers. Statements of fact and opinion in Primary Agent are the responsibility of the authors alone and do not imply an opinion on the part of the officers or the members of the IA&B. Participation in IA&B events, activities and/or publications is available on a non-discriminatory basis and does not reflect IA&B endorsement of the products and/or services.

Glance at Events O C T O B E R

C A L E N D A R

Date

Topic

Location

3-5

J.K. Ruble Graduate Seminar

Ocean City, Md.

4-5

Executive Management Conference (EMC)

Lancaster, Pa.

4-6

P&C Licensing Study Course

Mechanicsburg, Pa.

CISR—Agency Operations Course

Erie, Pa.

5-8

CIC—Agency Management Institute

Cranberry Twp., Pa.

CISR—Agency Operations Course

Pittsburgh, Pa.

Insuring Contractors Seminar

Baltimore, Md.

CISR—Personal Residential Course

Wilkes-Barre, Pa.

CISR—Personal Residential Course

Reading, Pa.

CISR—Personal Residential Course

Frederick, Md.

William T. Hold Seminar

Pittsburgh, Pa.

18-20

L&H Licensing Study Course

Pittsburgh, Pa.

Dynamics of Service

Pittsburgh, Pa.

CISR—Agency Operations Course

Mechanicsburg, Pa.

CPIA—Module 1

Philadelphia, Pa.

CPIA—Module 2

Philadelphia, Pa.

CISR—Personal Residential Course

York, Pa.

CPIA—Module 3

Philadelphia, Pa.

E&O loss-control seminars coming next month When it comes to E&O, there are at least ten ways to get sued. Fortunately, there are also best practices that can help mitigate exposure to claims. The IA&B E&O seminars held throughout the region next month may help agencies avoid claims and can save them money on their E&O premiums as they are approved for Utica and Westport (Pa. and Del. only) loss-control credit. Ten ways to get sued (sources of E&O claims) November 1 Mechanicsburg, Pa. November 8 Lehigh Valley, Pa. November 29 Baltimore, Md. November 30 Dover, Del. Best practices in E&O loss control November 16 Pittsburgh, Pa. Read more and register at iabgroup.com/education/programs/e_o_seminars

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Board of Directors Officers Robert B. Hall, CPCU, CLU, ChFC, ARM, ARM-P Chair of the Board West Chester, Pa. Norman Basso, CPCU Vice Chair of the Board York, Pa.

Robert B. Hall, CPCU, CLU, ChFC, ARM, ARM-P

Chair of the Board’s M

David Rosenkilde, CIC Immediate Past Chair of the Board Reisterstown, Md.

Members Joyce M. Bailey, CIC, CRM, CPIW Newark, Del. Henry “Butch” Bradley, Jr. Forest Hill, Md. Timothy P. Burris Thompsontown, Pa. N. Lee Dotson, CIC, AAI Wilmington, Del. John L. Frankenfield Telford, Pa. G. Greg Gunn, CIC Lemoyne, Pa. Diana M. Hornung Hanby, ACSR Wilmington, Del. Jocelyn R. Howard-Sinopoli, CIC, CISR Butler, Pa. Robert S. Klinger, LUTCF, CPIA Germantown, Md. Michael F. McGroarty Sr. Pittsburgh, Pa. Ann Gallen Moll, CIC Reading, Pa. Scott C. Rogers, CPIA* York, Pa. David B. Wasson Sr., CIC State College, Pa. * IIABA National Director

Trick or Treat As independent agents, we are entrepreneurs. We have the courage and commitment to make our own way in the insurance world. We do so with the expectation to succeed, but with the knowledge that we may struggle at times. Some situations are particularly difficult. This issue is devoted to a few that are downright daunting — even haunting. I’d venture to guess that few amongst us have not experienced a “day from hell.” You know exactly what I’m talking about — the day that starts bad and ends worse. On days like that, it may seem like you don’t have a friend in the world. The truth is that tomorrow’s another day, and there’s always help — if you know where to look. One place (I’d suggest the first place) members should look when needing help is iabgroup.com. It’s almost like trick or treating in that upscale neighborhood — no matter which door you knock on, you getting something good. The bag of goodies at iabgroup.com is overflowing (and no rocks, Charlie Brown). If you’re lucky, you won’t be able to relate to the horror stories on the following pages. My sense is that you will recognize (or at least recognize that you need to recognize) some of the issues. Either way, know that IA&B is ready to help you find your way out of the dark. Bob

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Member FAQ QUESTION:

I’m completing a brokerage agreement for a carrier. I’m not comfortable with one of the provisions expecting me to provide a personal guarantee. What implications could this have?

ANSWER: You should always stay away from personal guarantees or warranties. Provisions such as these are occasionally found in wholesaler agreements, but rarely, if at all, in company-agency agreements. Clearly, what it is stating is that if anything happens, your personal assets are on the line. Chances are one of the main reasons why you formed a corporation, LLC or partnership was to avoid exactly that. Why relinquish the protection by signing it away for a market access outfit that you’ll probably need only once in a while? And quite frankly, even if you access it frequently, is it worth handing over your house, your car and everything else you own? What to do? You should go back to the wholesaler and ask to strike out the provision altogether, or replace it with something more palatable. Be sure that it won’t be the first time the wholesaler gets some pushback on this language. While you’re at it, take a look at a checklist that IA&B made available on its website regarding frequent issues encountered in wholesaler agreements. From ownership of expirations to a balanced indemnification provision, the checklist succinctly reviews provisions that should be there and those that shouldn’t. If you notice anything else, let the wholesaler know, and try to negotiate better conditions. To access the checklist reviewing a number of items to be on the lookout for, visit www.iabgroup.com (go to Industry & Legal, Industry, and view Wholesaler agreements (MGAs or E&S) under Other Resources). You can also call 800-998-9644, and select option 0.

Finally, this is a perfect reminder that producers MUST read their agency agreements, whatever the market outlet or the business partner, and question what they are reading. When in doubt, call IA&B for assistance.

DO YOU HAVE A QUESTION? E-mail it to us at iab@iabgroup.com. Please use “Primary Agent FAQ” in the subject line of your message. You can also fax your question to (717) 795-8347. We look forward to answering your questions!

State News Primary Agent | October 2011

New member resource — Disaster Central With so many natural disasters impacting the mid-Atlantic region in recent months, DAIAB has compiled a number of resources members may find useful for customer service and for their own business continuity. “Disaster Central” is a Web page where members will find information on topics such as: ◗ emergency planning ◗ client communication ◗ natural disasters ◗ proof of loss ◗ FEMA assistance To access this resource, visit iabgroup.com/de/coverages/disaster.

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Extreme correction — First Lady bumps featured makeover to Oct. 21 Last month we told you about the independent agent who helped his contractor client cover some extreme exposures involving “Extreme Makeover: Home Edition.” But if you tuned in on Sept. 25 as we suggested, you saw a different episode. In early Sept., ABC decided to shuffle the fall schedule to feature a project involving First Lady Michelle Obama in the season premiere. That bumped the episode involving the Keefer family of York County, Pa. to Friday, Oct. 21—the debut of a new timeslot for the hit show.

Gearing up for next legislative session The state legislature may not be returning to session until January, but DAIAB’s government affairs staff is gearing up to hit the ground running on a number of issues important to Delaware’s agents and brokers including: ◗ Certificates of insurance – DAIAB will work with the Insurance Department to issue a bulletin regarding certificates of insurance and unlawful alterations. After the bulletin is in place, DAIAB will work toward introducing model legislation to address certificates of insurance abuse. ◗ State health exchange – DAIAB continues to have a presence at the Delaware Health Care Commission (DHCC) meetings as they study ways to implement a state health exchange and will remain involved with the state and the legislature to advocate for the role of agents and brokers in the health exchange.

AgentPAC needs you

Are you being located by prospects? One of the immediate benefits of being a Trusted Choice® agency is the ability to be found by prospective clients searching for an independent agent through the online Trusted Choice® agency locator. National Trusted Choice® advertising directs consumers to TrustedChoice.com where they can enter their zip code to find a local agent. Only Trusted Choice® agencies are listed. To take full advantage of this benefit, DAIAB members are encouraged to complete their online profile by logging into TrustedChoice.com/agents and updating or adding information about their agencies. Principals who have not received a “welcome” e-mail or a launch kit in the mail should contact Trusted Choice® at (800) 221-7917 or TrustedChoice@iiaba.net Find answers to FAQs at iabgroup.com/trustedchoice.

AgentPAC is your voice in Dover, and your monetary support of AgentPAC helps IA&B to educate and influence legislators on the issues most important to you. We are still short of our annual fundraising goal, so please consider making a contribution today. To learn more and contribute, visit iabgroup.com/AgentPAC.

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Preventing Primary Agent | October 2011

ERRORS AND OMISSIONS

TEN PRACTICAL TIPS TO AVOID ERRORS & OMISSIONS CLAIMS (LOOK FOR TEN MORE IN NOVEMBER) CURTIS M. PEARSALL CPCU, AIAF, CPIA Curtis M. Pearsall, CPCU, AIAF, CPIA, president of Pearsall Associates Inc. and special consultant to the Utica National Errors & Omissions Program, supplied this article.

There is no doubt an agency’s activities can have a tremendous impact on whether it faces an Errors & Omissions (E&O) claim. In addition, if a claim develops, these activities can prove to be quite beneficial in the agency’s defense.

many approaches including: 1) a newsletter, in paper or electronic form, that could be mailed with the policies or sent via e-mail; 2) posting information on your website, which could include information about various coverages as well as a section dedicated to Frequently Asked Questions; or 3) establishing a blog. For many agencies, this has provided tremendous benefit as it shows your expertise and your desire to help your customers learn more about their insurance coverages.

Here are some E&O tips that could just help you avoid an E&O claim. As you will note, many can be easily implemented into your agency structure. Tip #1 – Educate your customers. The insurance industry has some unique terminology, so the possibility exists that some customers don’t totally understand their policies. It is undoubtedly better to educate them before they have a claim rather than after.

To develop material for your newsletter, Web content or blog, start with the questions your staff is being asked by your customers. Tip # 2 – Hold periodic staff meetings and include some discussion of E&O. These meetings are a great way to address current issues, changes in company binding levels, new coverages, education opportunities, etc. In

Develop an education campaign to help your customers better understand their insurance program. You will not only sell more insurance, the reputation you gain in your community will be tremendous. There are [8]

addition, ask each staff member what they think they could do that might result in an E&O claim. Then discuss how to “fix it.” You may just be surprised at what you hear. These staff meetings present the perfect opportunity to stress key agency practices, such as the importance of thorough and timely documentation in the files. Tip # 3 – Be honest with your carriers. This may sound like common sense and it probably is. A major element of the relationship between your agency and your carriers is trust. It is critical to provide your carriers with complete and honest information. If they ask for further information, make sure it is truthful. Tip # 4 – The insured’s signature is important. The insured’s signature could make all the difference in the world. Oftentimes, disputes arise over the accuracy of the

information on an application. In these scenarios, a key element of the defense could be the presence and authenticity of the insured’s signature. If the insured has signed the application, generally they will be held responsible for the content. An unsigned application does not carry the same weight. It is highly recommended that you never give the insured a blank application to sign and advise them you will fill it in later. Moreover, never – and I mean never! – sign the insured’s name even though you believe you have the authority to do so. Tip # 5 – The Mirror test. This speaks to the process your agency should undertake when you move an account from one company to another. If you are considering moving the account to another carrier, identify and bring to the customer’s attention any coverages they will be giving up with the new carrier. Always get their approval and written sign-off. To perform this completely and accurately, the coverages, limits, exclusions and other key issues of all of the companies you are considering should be noted on a spreadsheet. This spreadsheet should be shared with your customer. Tip # 6 – The Classification Limitation Endorsement. There may be a need to use the Excess and Surplus Lines (E&S) marketplace to place some risks. While this segment of our industry serves a vital need, it also has some significant uniqueness that can spell E&O trouble if not properly handled. Many general liability policies written in the E&S market will contain a form/endorsement called the Classification Limitation Endorsement. When this endorsement is on a policy,

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coverage only applies for activities included under the listed classification. Be on the lookout for this form. If it is on the policy, bring it to the insured’s attention and get their approval to proceed. Tip # 7 – Identify any coverage changes on your E&S policy renewals. When a carrier reduces the coverage in the admitted marketplace, they are required to send out an advance notice. However, in the E&S market, carriers are not required to provide advance notice of pricing/coverage changes they will be making on the renewal. Thus, when you receive the renewal terms from the wholesaler/ E&S company, carefully review them to identify any changes. Any restrictions/reductions in coverage should be brought to your insured’s attention. Tip # 8 – Your Agency Procedures Manual – is it current? Is everyone following it? There are many benefits to an Agency Procedures Manual when the manual is current and effectively used. This manual can be a solid part of an agency’s defense in the event of an E&O claim, demonstrating that all employees perform the stated procedures. However, the manual must be current and consistently used by the staff. Having an outdated manual or instances where not every staff member follows the manual have the potential to significantly hurt your defense of an E&O claim. Tip # 9 – Include a cover letter with your policies. In most states, the insured has a responsibility to read their policy and is bound by its terms. To reinforce this, it is highly recommended that you include a cover letter when you send the policy to the insured, urging

the insured to fully review the policy – including the declarations and endorsements – for accuracy. Include a statement noting that the insured should immediately contact your agency if they have any questions about the policy’s contents. If you deliver the policy, it is still advisable to include this cover letter, making sure you bring the letter to the insured’s attention. Keep the letter general and do not include a summarization of the coverages, as this could suggest to the customer that they do not need to read the policy since the agency has told them what’s in it. Tip #10 – Your promotional material – could it get you in trouble? In the event of a claim against your agency, the plaintiff’s attorney will review all of your promotional material to learn what words you use and what message you send to customers. They want to see what they can use against you. Bottom line, the content of this material and what you say can have an impact on how an E&O claim is resolved. Be careful not to use words such words as “expert” or phrases such as “we make sure you are properly covered.” While these may be solid marketing phrases, they could be used against you should a claim arise. Enhance the Errors & Omissions culture at your agency by implementing some or all of these tips into your day-to-day operations. This could help reduce the likelihood of E&O claims against you and help provide effective defense if a claim does occur. Next Issue: Ten more practical tips to avoiding Errors & Omissions claims – Part 2 of 2.

Coverage Primary Agent | October 2011

CORNER

FIDUCIARY BOND VERSUS FIDUCIARY LIABILITY

JERRY M. MILTON, CIC Jerry M. Milton, CIC teaches and consults on industry issues. The legal profession recognizes him as an expert on insurance coverages. He is also the education consultant for IA&B, working with CISR, CIC and continuing education programs.

The Employee Retirement Income Security Act of 1974 (ERISA) was passed by Congress to establish minimum standards for most voluntarily established employee benefit plans in private industry. ERISA does not cover group health plans established and maintained by governmental entities, by churches for their employees, or plans maintained solely to comply with workers’ compensation, unemployment, or disability laws.

A fiduciary is defined as a person or organization who manages money or property for another and who must exercise a standard of care in such management activity as imposed by law or contract. The status of being a fiduciary gives rise to certain legal exposures and obligations, including the prohibition against investing the money or property in investments that are speculative or otherwise imprudent.

ERISA requires plans to provide participants with information concerning the plan features and funding; establishes fiduciary responsibilities for those who manage or have any discretionary control over the plan assets; requires plans to provide a grievance and appeals process for the participants; and gives participants the right to sue for breaches of duty by any fiduciary.

Section 412 of ERISA requires that every person who handles or has any control over the funds of the plan must be bonded to provide protection to the plan for any loss resulting from acts of fraud or dishonesty. Section 412 defines “fraud or dishonesty” as risks of loss that might arise through larceny, theft, embezzlement, forgery, misappropriation, wrongful abstraction, wrongful conversion or willful misapplication. The bond amount must be at least 10 percent of the plan

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assets up to a maximum of $500,000. However, effective for plan years beginning on or after January 1, 2008 the maximum required bond limit is $1 million for plans that hold employer securities. Section 412 also requires that the bond insure the plan from the first dollar. Therefore, a fiduciary bond cannot have a deductible. If two or more plans are insured under the same fiduciary bond, the bond limit must be sufficient to provide a limit at least equal to that required if each plan was separately insured. For example, if Plan A’s required limit is $200,000 and Plan B’s required limit is $100,000, and they are jointly insured under the same bond, the bond’s minimum limit must be $300,000. Whereas section 412 of ERISA requires a fiduciary bond for the plan, fiduciary liability insurance is neither required by nor subject to section 412. ERISA section 410 allows, but does not require, a plan to

MUTUAL BENEFIT GROUP

purchase fiduciary liability insurance to cover losses resulting from the acts or omissions of a fiduciary. Any such insurance purchased and paid for by the plan must permit recovery by the insurer from the fiduciary in case of a fiduciary breach. Fiduciary liability insurance is a standalone policy and pays, on behalf of the insured(s), the legal liability arising from claims for the alleged imprudent actions, errors or omissions of the insured. “Insured” is usually defined as a trust or employee benefit plan, any trustee, officer or employee of the trust or employee benefit plan, the employer who is the sponsor of the plan, and any other individual or organization designated as a fiduciary. Most, not all, fiduciary liability insurance policies cover errors and omissions arising out of the administration of the plan (employee benefits liability). Employee benefits liability (EBL), which does not cover imprudent investment of funds, is often provided under an endorsement attached to the commercial general liability (CGL) policy. Obviously, if a fiduciary liability policy which also includes EBL coverage is purchased, the EBL endorsement is no longer needed on the CGL. An owner or an officer of a company who makes decisions regarding the company’s qualified employee benefit plan(s) could place their personal assets at risk. Under ERISA, fiduciaries can be held personally liable for losses to an employee benefit plan incurred as a result of any errors, omissions, or breach of duty by the fiduciary. MUTUAL BENEFIT GROUP Huntingdon, Pennsylvania www.mutualbenefitgroup.com

Mettle you can count on.

arn it. You don’t just wear it; you earn

faction “In the 2010 Company Satisfaction Index Survey, agents listed us as the number one personal lines carrie carrierr s they would recommend to a peer aas h. W e a good company to work with. We work hard each day to earn your respect and your business with d underwriting competency and responsiveness and technol-ogy initiatives that simplify your workload.” s - Tracey Cook, Personal Lines Underwriting Supervisorr

Start with MBG, and you’ll finish with a winner.

Fiduciary bond – “fraudulent or dishonest acts.” Fiduciary liability – “errors, omissions, or breach of duty.” Your client may need both! Y’all take care!

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Huntingdon, Pennsylvania www.mutualbenefitgroup.com

Mettle you can count on. You don’t just wear it; you earn arn it. “In the 2010 Company Satisfaction faction Index Survey, agents listed us as the number one personal lines carrier carrier they would recommend to a peer as as a good company to work with. h. We We work hard each day to earn your respect and your business with underwriting competency and d responsiveness and technol-ogy initiatives that simplify your workload.” s - Tracey Cook, Personal Lines Underwriting Supervisorr

Start with MBG, and you’ll finish with a winner.

AGENCY MANAGEMENT

Thwarting monsters and mayhem Insurance horror stories and how to avoid them

Primary Agent | October 2011

cared of being in the dark on regulations or legislation? Afraid of what you’ll find (or won’t find) in that monster file cabinet? Trying to steer clear of that blood-sucking attorney? What better way to usher in the Halloween season than to tell a few horror stories. The following tales of terror could happen to anyone. Fortunately, members have resources that make these nightmare scenarios manageable if not completely preventable. Read on…if you dare!

Absconding producer sucks life out of agency Your agency has decided it needs to hire a new producer to spark sales which have been exceptionally flat. You place an ad in the paper, and are contacted by Slick Willy, a self-proclaimed “super producer.” Mr. Willy promises to triple your agency’s business in one year. Despite his name, you’re wild for Willy and immediately hire him without performing any background or reference checks, and without executing a producer agreement. A year goes by and things aren’t what you’d hoped for. In fact, Willy has just resigned his position with your agency without writing a single new piece of business over the course of the year. Even worse, Willy has now started his own agency and has your agency’s entire list of clients and policy expiration dates. He has been contacting all of your customers and systematically stealing them, one-by-one. A reference check would have shown that Willy has actually made a profession out of seducing unsuspecting agencies and then sucking them dry in this way. And because your agency didn’t have a producer agreement in place with Willy, there isn’t a thing that can be done. Your agency cannot claim trade secrets. It cannot rely upon an anti-piracy clause. There are no enforcement provisions to put in place. In six months, the vast majority of your clients have left, and you’re forced to shut your doors for good.

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Non-producing producers also scary Almost as troubling as an agent who takes off with your clients is an agent who hangs around for the handsome pay, but can’t (or won’t) produce. Principals attending IA&B’s third annual Executive Management Conference (EMC), Oct. 4-5, at the Lancaster Eden Resort, will hear spooky stories about well-compensated producers who don’t earn their keep. Nationally recognized agency consultant Al Diamond will discuss topics such as self-terminating contracts and various compensation models that reward good producers while protecting agencies from sales zombies. IA&B also provides a number of employee management resources online. Visit iabgroup.com, click on Agency Operations, then Employee Management.

AGENCY MANAGEMENT

To avoid this horror story Had you consulted with IA&B’s Producer Agreement Toolkit, this could have been avoided. An agreement could have been in place with Willy protecting your book of business. Trade secret protections could have been invoked. More importantly, an anti-piracy provision would have been executed, preventing Willy from contacting any of your clients. Enforcement provisions in the agreement would have easily allowed the agency to pursue litigation and to effectively take the bite out of this evil non-producer.

To learn more visit iabgroup.com/patoolkit.

Vanishing driver and his MVR A couple of months ago, one of your large commercial clients asked you to pull motor vehicle reports (MVRs) for his drivers so that he could check their driving record and decide whether to keep them or not. Since it was an important client, you obliged. He subsequently fired a driver based on the MVR, and this morning, you were served with lawsuit papers. It is very common for commercial clients to ask their insurance agencies to share MVR information (verbally or in writing) for the purpose of making employment decisions. Accessing or sharing MVRs with the insured for this purpose is not an insurance underwriting function. MVRs trigger both the Federal Driver’s Privacy Protection Act (FDPPA), and, because they are

also considered “consumer reports,” the Fair Credit Reporting Act (FCRA). As a rule, you should not pull MVRs for any use other than underwriting. When your client is doing a review of driver performance, it is not underwriting. Why underwriting only? An insurance agent’s access to MVR information generally hinges on an “affidavit of intended use” or similar document that formalizes the reason why the MVR is requested. Only certain persons are entitled to the information, and only for specific uses. In the case of agents, insurance underwriting is a proper reason for pulling an MVR, and insurance agents are only given the information for the purpose indicated.

Continued on page 16

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TRUST.

For All That Matters

AGENCY MANAGEMENT

Continued from page 14 Aren’t employers entitled to the information on their employees? Yes, they are. However, they also must comply with specific provisions of the FDPPA and FCRA, which are different from the requirements that apply to insurance agents. In addition, the fact that they are entitled to it doesn’t mean you are permitted to provide it to them. I thought I was okay since the employer gave me a consent form signed by the employee. An authorization form to pull an MVR signed by your client’s employee may hold the employer harmless but will not exonerate you for disclosing the information. In addition: ◗ Your contract with the MVR vendor likely prohibits you from using reports for any purpose other than underwriting (that means you’re in breach of contract as well). ◗ Providing MVRs to a commercial insured for employment purposes is outside the scope of your agency’s E&O policy. When your agency is sued because of an improper use of MVRs, the policy will not cover for the loss. ◗ In the eyes of the feds, you are now considered a Consumer Reporting Agency, subject to additional compliance requirements of which you are surely not aware.

To avoid this horror story Don’t share MVR information with anyone other than the individual subject of the MVR! When a commercial client asks you to provide MVR information about their drivers: ◗ Explain that as an insurance agent, you are not permitted to share that information. ◗ Tell the client that, as an employer, the company may be entitled to MVR information about its employees through the state’s department of motor vehicles, but not through you. ◗ If/when the insurer wants to exclude a driver based on a MVR you have already pulled, simply tell the client that the driver is “ineligible for coverage” or “does not meet company underwriting criteria,” and leave it at that. ◗ To make your refusal more palatable, provide a “cheat-sheet” from the Federal Trade Commission. The document summarizes an employer’s rights and obligations under the FCRA. The information will help your client remain compliant and avoid a lawsuit.

To access more information on MVR compliance and other privacy issues, consult IA&B’s privacy resources at iabgroup.com/privacy.

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Recovery from a flaming disaster The phone rings during the middle of the night. That’s never good. It’s the security company reporting a fire alarm is going off at your agency. You’re informed the fire department has been dispatched. You dress quickly and race to the office to find your worst fears are confirmed. It’s gone. The building which stood for years and was a fixture along Main Street is no more. Everything is lost. Files, records, computers and desks are now reduced to ashes or charred beyond recognition. Once the initial shock wears off, you start to stress about all that will need to be done to get your business back up and running.

Primary Agent | October 2011

Then you pull it together and just think about what needs to be done first. But where to start? If only you had a plan — something to walk you through the steps to begin recovering.

To avoid this horror story IA&B knows how hectic it is to run a small business. There’s no “normal” day anymore and the demands on your time are forever increasing. IA&B heard

You’d been meaning to do that. Several years ago you even reviewed IA&B’s Emergency and Business Continuity Planning Manual. You remember thinking it looked fairly easy to follow. Sure, there would be some work involved in getting it done, but in the end, you’d have a personalized plan for the agency…so you thought.

from our Member Agent Panels that they needed assistance in creating a plan any agency could use to maintain business continuity in the event of an emergency — something that could be a template for all

ENTHUSIASM IT’S CON TAGIOUS

But, as it turned out, later that day your largest client called with a serious problem that needed your immediate attention. You spent the next two days servicing that account and your regular workload started to back up. You worked a few extra long days to get caught up.

“My hobby as a fitness instructor allows me to help people—similar to my position at J.M. Wilson. I love being able to assist our agents and our companies in finding a solution when a loss occurs.”

Over the next few days your longest tenured personal lines CSR and mentor to the rest of your staff announced she was going to retire; one of your leading carriers called to request a meeting to talk about your “lackluster” production numbers; and “Joe, the average customer” called to say the folks at Marshall & Swift were out of their minds. In other words, it was just another week at the office. It was also another week that you didn’t plan for an emergency such as this.

Jessica Garcia, CISR Claims Supervisor—and fitness fanatic Connect with Jessica on LinkedIn!

Managing General Agency Since 1920 Property/Casualty t Professional Liability t Surety Commercial Transportation t Personal Lines t Premium Finance

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ENTHUSIASM IT’S C ON TAGIOUS

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jmwilson.com

[ 17 ]

jmwilson.com

AGENCY MANAGEMENT

members to use but flexible enough to be customized for any operation. The Emergency Planning Manual (EPM) IA&B developed for the unique needs of independent agencies is Web-based and gives principals 24/7 access — a unique feature that other planning manuals don’t offer. Users can retrieve their plan any time, any place — even if the agency is totally destroyed The EPM is an online resource that enables agencies to customize information critical to

restoring their business operation in an emergency: ◗ steps of action to take for recovery ◗ complete contact information for service providers, companies and vendors ◗ inventory of software, hardware and office equipment ◗ pre-planned staff roles and contact information ◗ a plan for possible alternate locations, if needed

[ 18 ]

Creating a comprehensive emergency plan is a monumental but critical task. IA&B resources help you break this activity down into manageable steps to assist you in utilizing its online tool.

To learn more about emergency and business continuity planning, visit iabgroup.com/epm. Or, put it off at your own risk. Scary spirit in the state house State Senator Scary receives a call from one of his closest constituents, Ima Pain. Mrs. Pain recently had a situation with an insurance agent that has her fired

Primary Agent | October 2011

all, a man of the people, and acting in the spirit of consumer protection. He drafts a bill that would require all agents to record every conversation they have with clients, have the recording transcribed, and then have the client sign the transcription as accurate. Because Senator Scary is a powerful member of the legislature, he quickly garners support for this bill.

up. Mrs. Pain, just the day before, had water in her basement due to heavy rain and a clogged gutter that her husband, Major Pain, neglected to fix. The water caused a total loss of Mrs. Pain’s collection of antique postcards. The Pains are claiming that the day before it started raining, they went into their independent insurance agent’s office and asked for flood insurance. Mrs. Pain insists that the agent told her she would have flood insurance added to her policy within the hour. Needless to say, the insurance agent denies this assertion. He states that when he told the Pains that there is a 30-day waiting period for flood insurance, she left his office in a huff dragging Mr. Pain behind her. Senator Scary, believing his constituent (and being an old army buddy of Mr. Pain), decides to change the law — he is, after

Enter AgentPAC! AgentPAC, your statebased political action committee of Insurance Agents & Brokers (and the Delaware Association of Insurance Agents & Brokers), has been working tirelessly to advocate on behalf of independent agents. AgentPAC is constantly monitoring legislative activity (like Senator Scary’s bill) and using member-agent contributions to support agentfriendly legislators who can shape the debate on issues affecting your livelihood. Thankfully, last session, AgentPAC contributed to several powerful, insurance-savvy legislators in the state House. Through campaign support and education on this important issue, these Representatives are now educating their colleagues on the administrative burden this requirement would create for agents. They are also reminding fellow lawmakers that the good agents already protect their clients (and themselves) by adequately documenting all business

[ 19 ]

interaction. These lawmakers successfully derail Senator Scary’s efforts and protect agents from a paperwork nightmare.

To avoid this horror story By contributing to AgentPAC, you too can combat the Senator Scary in your state legislature. AgentPAC channels contributions to legislators and candidates across the political spectrum in an effort to promote a better understanding of the vital role agents play as experts in the insurance marketplace. AgentPAC contributions and other IA&B government affairs initiatives in Harrisburg, Annapolis and Dover give agents a stronger voice in the debate on many issues affecting agencies and other small businesses like theirs.

To learn more and to help AgentPAC maintain a strong voice in your state house, visit iabgroup.com/AgentPAC.

EDUCATION

E&O and Ethics program with Jerry Milton now available on demand

Primary Agent | October 2011

gents can now learn ethics and the implications for professional liability from coverages expert Jerry Milton, CIC, anytime, anywhere there’s a Web connection. IA&B’s newest on-demand offering is “E&O and Ethical Behavior,” a loss-control seminar led by Milton and approved for Utica loss-control credit.

According to Milton, “E&O claims all come from the ‘L’ syndrome’: Lack of knowledge, Lack of consistency, Lack of communication or Lack of documentation.” In this program, Milton dives into the sometimes murky waters of ethical behavior to help agents avoid getting soaked in an E&O lawsuit. With full video presentation and supporting materials, Milton discusses: ◗ usual allegations

On-demand is on target for many The ability to take continuing education (CE) courses at the time and place of one’s choosing is appealing to many busy professionals. IA&B is responding by developing on-demand programming that meets the needs of independent agents, including the high standard of quality they have come to expect. IA&B On-Demand offers:

◗ agent authority

◗ unmatched convenience

◗ agent’s duties ◗ failure to provide standard of care

◗ expert instructors ◗ dynamic multimedia

◗ breach of contract

◗ affordable fees

◗ binders ◗ certificates of insurance ◗ claims scenarios As appealing as learning from a guru like Milton, is that fact that agents can do it on their own schedule, at their own pace and anywhere they connect to the Internet. This seminar gives users the ability to stop and resume the program whenever and wherever they like. Also appealing for Utica E&O policyholders is the fact that they can earn approved loss-control credit (as well as CE credit) and potentially save money on their professional liability policy by taking this course. The fact that they can take it right at their desks can also save agencies on travel expenses and lost productivity. Milton’s ability to make concepts come to life by sharing real-world stories and colorful hypothetical scenarios is a draw for anyone attending his classroom presentations. IA&B On-Demand preserves much of that same experience through use of video—not a static slide presentation or large volumes of text to read. Learn more and register at iabgroup.com/on-demand or call (800) 998-9644.

[ 21 ]

◗ approved CE and/or

loss-control credit Earlier this year, IA&B launched its on-demand platform with “Understanding the National Flood Insurance Program,” a program with renowned flood expert Rita Hollada, CPCU, CIC, CPIA. The newest addition, “E&O and Ethical Behavior” (see full story at left), will be followed later this fall by a Maryland-specific program entitled, “Compliance Pitfalls and Ethical Responsibilities.” Learn more about programs currently available on demand at iabgroup.com/on-demand.

Platinum Profile Insurance Agents & Brokers proudly recognizes Donegal Insurance Group, Inc. as one of its Platinum Partners. IA&B Platinum Partners dedicate the highest level of sponsorship to our organization. FEATURED PARTNER Donegal Insurance Group, Inc. CHIEF EXECUTIVE OFFICER Donald H. Nikolaus President and CEO CORPORATE HEADQUARTERS Marietta, Pennsylvania SUBSIDIARY COMPANIES Atlantic States Insurance Company, Southern Insurance Company of Virginia, Le Mars Insurance Company, Peninsula Insurance Group, Sheboygan Falls Insurance Company, Michigan Insurance Company A.M. BEST RATING A (Excellent) WEBSITE www.donegalgroup.com

e have been providing quality property and casualty insurance protection since Donegal Mutual Insurance Company began doing business in 1889. Over the years, the Donegal Insurance Group has grown significantly to now include eight property and casualty insurance companies.

As our operations have grown, we have expanded our ability to provide our independent insurance agents with a comprehensive suite of products. In addition to providing a full line of personal insurance products, we have developed competitive commercial products that allow our agents to serve a broad spectrum of small, mid-market and larger commercial accounts. We work very hard to provide exceptional products and service in lines of business and markets that we know and understand well.

The Donegal Insurance Group enjoys an A (Excellent) rating by the A.M. Best Company. Our commitment to safety, consistency, and strong financial performance is further reflected by Donegal Insurance Group’s inclusion in the Ward’s 50 Benchmark Group for property and casualty insurance companies in six of the past seven years. At Donegal, we focus on providing superior technology and outstanding service to our agents and customers. We know that “ease of doing business” has become increasingly important to independent agents. Donegal has invested millions of dollars developing advanced technology that greatly enhances our agents’ and policyholders’ experience in doing business with us. Donegal has long recognized the value of an independent agent in assisting individual and business

consumers navigate the insurancebuying process. We prove our commitment to the independent agency system every day by distributing our products exclusively through independent agents. We are constantly looking for ways to deliver increased value to our agents and solidify company-agency relationships. We have benefited greatly from the feedback we receive in our regional agency forums, which helps us improve our products and operations. Much has changed since we started in the insurance business over 120 years ago, but one thing remains the same — Donegal remains firmly committed to delivering a better value to our agents and policyholders. We look forward to our prospects for mutual success as we work together with our independent insurance agents in serving the insurance needs of our customers.

Listed below are those companies that strongly support the independent agency system and Insurance Agents & Brokers. Thank you for your continued sponsorship.

WHAT IS IA&B PARTNERS? The IA&B Partners program gives company and allied businesses the opportunity to demonstrate their commitment of support to independent agents and receive maximum market exposure. As an IA&B Partner, you will also realize the benefits of IA&B membership to help you succeed in the insurance industry.

DO YOU SEE YOUR NAME?

PLATINUM LEVEL

BRONZE LEVEL

ACUITY Berkley Mid-Atlantic Group Donegal Insurance Group Erie Insurance Group Harleysville Insurance Highmark Casualty Insurance Co Insurance Agents & Brokers Service Group Inc

Aegis Security Insurance Co

MMG Insurance Company Millers Mutual Group Millville Mutual Insurance Co Mutual Benefit Group Ohio Casualty Penn National Insurance Selective Swiss Re The Main Street America Group Utica National Insurance Group

Encompass Insurance

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choose the sponsorship

Progressive

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Contact the Member Sales Center at (800) 998-9644, (717) 795-9100 or visit us online at www.iabgroup.com to get started.

AmWINS Program Underwriters Inc Auto-Owners Insurance Company Briar Creek Mutual Insurance Company Builders Insurance Group Chubb Group of Insurance Companies Countryway Insurance Company First General Services Foremost Insurance Group Goodville Mutual Casualty Company Guard Insurance Group Harford Mutual Insurance Co Hanover Fire & Casualty Insurance Company Insurance Alliance of Central PA Inc Insurance Placement Facility of PA Keystone Insurers Group Inc Lebanon Valley Insurance Company

To become an IA&B Partner,

commitment of support.

Agency Insurance Company

Mercer Insurance Group Merchants Insurance Group Mercury Casualty

SILVER LEVEL

Penn PRIME Municipal Insurance

Access Insurance Company Allied Insurance American Mining Insurance Co Cumberland Insurance Group Frederick Mutual Insurance Co Juniata Mutual Insurance Co PSBA Insurance Trust The Philadelphia Contributionship Westfield Insurance

Rockwood Casualty Insurance

Reamstown Mutual Insurance Company State Auto Mutual Insurance Company TAPCO Underwriters Inc The Brethren Mutual Insurance Company The Motorists Insurance Group The Mutual Service Office Inc Travelers Tuscarora Wayne Insurance Company Zenith Insurance Primary Agent October 2011

H.R.

Primary Agent | October 2011

HEADQUARTERS

YEAR END PROCESSING…IT’S NOT JUST ABOUT PAYROLL. on the internet to help bookkeepers and accountants perform their financial closings and year-end reporting, as agency owners, you also have responsibility that your employee benefits processing functions accurately and is in compliance with legal and regulatory requirements. Whether you run your own payroll or use an outside processor, you need to work in tandem with payroll to insure that your system operation and reporting are in compliance and designed to do what your benefit programs say they do.

JEFFREY W GERHART, CEBS, MBA Jeffrey W. Gerhart, CEBS, MBA, provided this article on behalf of Mosteller & Associates, IA&B’s contracted human resources consulting firm. IA&B members have access to HR Solution©, a compilation of products and services to help them establish or improve their human resources program. Included are base-level consultation services and discounted professional services from Mosteller & Associates.

As we approach the end of the calendar year, it’s a good time to take stock of preparing your payroll for year-end processing and to consider how your employee benefit plans enter the mix. How many times do we push to provide good customer service and facilitate our clients who are changing their employee insurance policies or other employee benefit programs, then forget to bring that same level of service to our own?

Most employers offer open enrollment for benefit programs to employees at this time of year. This election period for the new calendar year may create unrest among employees as they struggle with increased premium costs or reduced benefit coverage. Good, timely employee communications goes a long way toward a successful transition. While there are a number of year-end checklists available

Based on human resource information systems audits I have conducted over the years, the following benefit related items can help your review: ◗ Have employees exceeded the maximum deferral amounts allowed this year in their 401(k), Flexible Spending Account (FSA) or other qualified deferred accounts? Continued on page 26

[ 24 ]

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[ 25 ]

H.R. HEADQUARTERS

Continued from page 24 ◗ Does my payroll system have in place the new limitation amounts for qualified plans for the next calendar year? ◗ If any employees have a group life insurance benefit in excess of $50,000, have I calculated the imputed value of their excess for tax purposes (IRS Section 79 table)? ◗ If I changed benefit providers for the new year, what plan design or procedural changes should I communicate to employees? ◗ Will new enrollment cards be issued? ◗ Will the employee premiums for health plans be contributed on a pre-tax basis (IRC Section 125)? ◗ Do any of my plan documents or summary plan descriptions need to be modified based on regulatory or procedural changes? ◗ If I offer a flexible spending account, should I introduce the use of debit cards to employees, or curtail their use if already issued? ◗ Should I have employees update their beneficiary information for retirement or life insurance programs currently in place? ◗ Is my payroll system updated with new federal, state and local tax rate changes for next year? What do employees need to know about the changes?

vacation/holiday/personal days or other accrued paid time off programs? ◗ Will I be able to provide timely W-2s to employees?

It won’t take you long to think through these questions, but doing so should give you clear indication of what to do and, hopefully, the time to do it. See you in 2012!

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Automatic endorsement protects against damage to your work. We clarified the policy to state that property damage to a contractor’s work performed on a contractor’s behalf by subcontractors, within the products-completed operation hazard, is an occurrence. Subject to all other general liability terms and conditions. This summary does not constitute a part of the insurance policy. See policy for complete terms and conditions.

◗ Should I conduct an audit of dependent eligibility in our medical/dental/vision plans? ◗ What steps do I need to take with my time-off programs if employees are at risk of losing unused [ 26 ]

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[ 27 ]

1/18/11 11:29:18 AM

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Ad Index ACUITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15 Atlantic Specialty Lines Inc . . . . . . . . . . . . . . . .27 Brokers Surplus Agency . . . . . . . . . . . . . .27, IBC EMC Insurance Companies . . . . . . . . . . . . . . . .1 Guard Insurance Group . . . . . . . . . . . . . . . . . .25 Hanover Fire & Casualty . . . . . . . . . . . . . . . . . .25 Highmark Casualty . . . . . . . . . . . . . . . . . . . . . .IFC Harford Mutual Insurance Co . . . . . . . . . . . . . .11 IA&B On-Demand . . . . . . . . . . . . . . . . . . . . . .IBC IA&B Partners Program . . . . . . . . . . . . . . . . . . .23 Interstate Insurance Mngmnt. . . . . . . . . . . . .OBC JM Wilson . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17 MMG Insurance Company . . . . . . . . . . . . . . . .27 Penn National Insurance . . . . . . . . . . . . . . . . .26 Preferred Property Program . . . . . . . . . . . . . . .18 [ 28 ]

The worst-laid plans oft go astray There was Nicholas Di Puma, minding his own business and cooking a steak … on four pans. Suddenly, there was a grease fire. He tried to douse it with a dishtowel, but that also caught fire. So he threw a pan out his front door, where it landed in his convertible and sparked a car fire. While attempting to throw a second pan, he tripped. The pan landed on a leather couch and started a house fire. He then made insurance claims on the fire-ravaged car and home. The unbelievable chain of events turned out to be just that — unbelievable. “I can’t imagine this playing out in real life,” said a county judge. What did play out in real life was Di Puma’s sentence: five years’ probation for insurance fraud. Sources: 11 dumbest insurance fraud cases, Insurance Networking News; Cooking up a scheme, Coalition Against Insurance Fraud

----------------------------------------------------------------———————------The Last & Least column is dedicated to the industry’s oddities — from creative claims and kooky coverages, to (tasteful) jokes and strange stories. Submit yours to iab@iabgroup.com, subject line: Last & Least. The editor will happily protect sources’ anonymity upon request.

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E&O and Ethical Behavior New On-Demand Topic Learn ethics from Jerry Milton, CIC; earn Utica loss-control credit; AND do it all on your own schedule, at your own pace and in your own place. This new on-demand seminar combines Jerry’s unique classroom style with the ability to stop and resume the program whenever and wherever you like. All it takes is a computer and Internet connection.

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