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Raj Daryanani 1
Professional Liability Claim
Raj Daryanani
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Professional Liability • Professional liability insurance (PLI), or errors & omissions (E&O) provides
liability insurance for professional advice, service by insured and cost of defending against an alleged negligence claim, and damages.
• Insured’s alleged failure to perform, financial loss caused by, and error or omission in the service or product sold by the insured.
• Coverage is for potenJal causes for legal acJon that would not be covered by a general liability insurance policy, which provides coverage and addresses more direct forms of harm. (i.e.. BI, PD, adverJsing liability etc.)
• Professional liability coverage may provide coverage for the defense costs, including when legal acJon turns out to be groundless. Defense cost can be huge. Defense cost in CGL policies is over and above the policy limits.
• Coverage does not include criminal prosecuJon or potenJal liabiliJes under civil law which may be subject to other forms of insurance. (CGL/Product liability).
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Professional Liability • Covers negligence, misrepresentaJon, violaJon of good
faith and fair dealing, and inaccurate advice. Examples: – If a soSware product fails to perform properly, it may not cause physical,
personal, or adverJsing damages, therefore the general liability policy would not be triggered; it may, however, directly cause financial losses which could potenJally be aUributed to the soSware developer's misrepresentaJon of the product capabiliJes.
– If a custom designed product fails without causing damage to person or
property other than to the subject product itself, a product liability policy may cover consequenJal damages such as losses from business interrupJon, but will generally not cover the cost to redesign, repair or replace the failed product itself. Claims for these losses against the manufacturer may be covered by a professional liability policy.
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PLI & CGL Coverage Aspects
Which of the two policies should respond when a liability claim is reported is one that is steeped in uncertainty. Will it be one, the other, or perhaps both? • Guiding principle depends, among other things, upon:
a) the nature of the loss or damage; and b) how the allegaJons giving rise to the claim are “framed” by the plainJff’s counsel.
The scope of coverage provided by any insurance policy is determined by the Insuring Agreements and the Exclusions.
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CGL Provision • CGL Insurance insures financial loss due to property damage,
injuries, or death caused by your services, business operaJons, or your employees
• An occurrence-‐form CGL policy provides compensatory damages coverage for claims resulJng from “occurrences” during policy period due to bodily injury, property damage, personal injury, and possibly adverJsing injury
• A CGL policy is not intended to insure a claim for pure financial loss that does not result from one or more of these forms of injury or damage. CGL policies almost without excepJon exclude coverage for claims arising from the rendering or failure to render “professional services.”
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PLI Provision • A claims-‐made E&O policy insures claims first reported during the policy period, for liability arising from – errors, omissions or – negligent acts in the rendering or – the failure to render defined professional services, including those that result in financial loss.
• E&O policies may exclude claims resulJng from bodily injury and property damage
• Policies may contain retroacJve coverage clause going back 1 to 7 years claims occurring. Premium determinaJons reflect such.
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PLI Aspects BI The E&O exposures of some professionals relate primarily to bodily injury. Examples: – the medical malpracJce exposures of medical professionals
& clinics, first responders & ambulance services. – engineers who design structures, equipment or products
that have the potenJal to cause bodily injury if they fail. – Professionals who provide services that are closely Jed to
the transportaJon, health care and recreaJon industries
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PLI Aspects PD • The E&O exposures of some professionals present exposures
that may give rise to liability for property damage. Examples: – professionals who are responsible for the design of industrial structures and equipment.
– In today’s über-‐connected and wired world, professionals who provide technology services may also be at risk of liability exposures for property damages.
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PLI Aspects Financial
• The E&O exposures of some professionals have the potenJal to cause losses that are almost exclusively of a financial nature. – professionals who provide strictly financial services, such as accountants, insurance brokers, claim adjusters, lawyers and mortgage brokers.
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PLI Standard of Care • The plainJff must establish all the elements of the tort, including the breach of duty & standard of care.
• The court requires a standard against which to measure the conduct of a defendant to determine whether the defendant’s acJon (or lack of acJon) was negligent.
• The court must assess whether the conduct of the defendant fell below the standard of conduct required by law.
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PLI Case Laws Standard of Care • Haag v. Marshal (regarding an allegaJon of negligence against a lawyer) • Meehan v. Dixon , (a claim of negligence against a property manager) • Shaak v. McIntyre, (a claim of negligence against a real estate agent) • Summit Staging Ltd. v. 596373 B.C. Ltd., (claim against real estate agent)
Lack of Expert Evidence and No Evidence MoJons • Seiler v. Mutual Fire Insurance Co. (claim for professional negligence against
an insurance adjuster) • Edgar v. BriFsh Columbia
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Directors & Officers Coverage • Directors and officers liability insurance (can also include
Employment PracJces Liability Insurance), covers your damages and/or defence costs in the event that you are sued for alleged wrongful acts while acJng in your capacity as a director or officer.
• The directors and officers liability insurance policy protects the directors.
• Personal Liability arises out of : – Specific duJes and responsibiliJes are imposed on directors as to the
conduct in which they run a business. – These responsibiliJes are imposed under contract condiJons. – Common law and statutory legislaJon
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Directors & Officers Coverage • Poten7al Areas of Liability
– Failure to act as required by law: Most provincial and federal legislaJon requires directors of incorporated or limited companies to maintain certain records, and file financial and other corporate reports. If however, these records are not maintained or properly filed, the director may be liable for an offence under one or more pieces of legislaJon.
– Wrongful Act: This has oSen been interpreted by the courts as: any actual or alleged act, omission, error, misstatement, misleading statement, neglect, or breach of duty.
– Failure to fulfill legal requirements can include wrongful dismissal of an employee, employee discriminaJon, or failure to remedy a safety or environmental hazard. Liability could also result from non-‐compliance with a corporate statute, mismanagement, or financial losses
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Directors & Officers Coverage Liability is not limited to the business or corporaJon. – As a director or officer, you can be held personally liable for your acJons or in-‐acJons
– Claims of ignorance in performance of your duJes is not a defense
– Resigning from your responsibiliJes may not be accepted as a defense
– Indemnity provided by an insurance policy held by the Board of Directors may not provide adequate protecJon
– You could also be held liable for an alleged non-‐performance
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Directors & Officers Coverage A directors and officers insurance policy is usually divided into two periods of coverage: – Coverage during the Jme period when you are acJng as a director or officer
– Coverage for the Jme period aSer you no longer serve as a director or officer (extended for a limited period) protects your assets if you are sued aSer you have completed your term of service or have reJred, and are no longer serving as a director or officer.
– Coverage and/or reimbursement of costs are only available where the company has indemnified the individual(s) not the company.
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Trigger of PLI & CGL Coverage
Medical Claim • During an eye examinaJon, an insured ophthalmologist administered eye
drops that dilated a paJent’s pupils and resulted in blurred vision. When leaving the premises, the paJent slipped and fell down the office stairs and sustained a fractured arm and dislocated shoulder. The paJent iniJated legal acJon claiming for damages resulJng from her injury.
• The paJent’s counsel alleged that the ophthalmologist and his staff failed to sufficiently warn the paJent of the need to delay departure unJl her vision impairment subsided or to arrange for someone to accompany her prior to leaving. There was a further allegaJon that damaged edging on one of the top stairs of the ophthalmologist’s office was a factor in the fall. The CGL policy contained a “professional services” exclusion.
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Trigger of PLI & CGL Coverage Technology • Insured is consulJng firm providing hardware & soSware soluJons to a
health care insJtuJon. A major storm caused a power surge that resulted in interrupJon to the client’s power supply, damage to its hardware, corrupJon of files and incurring costs to recover data.
• The client’s counsel alleged: a) that the consultant commiUed an error or omission in its failure to ensure that an appropriate safety system was in place to prevent damage from the power surge; and b) that the consultant improperly installed the surge protecJon system that was in place at the Jme of the loss.
• It is very likely that the CGL policy excluded damage to “data,” while the E&O policy may or may not have contained an exclusion for bodily injury and property damage.
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Trigger of PLI & CGL Coverage ConstrucJon • Insured mechanical contractor undertook a project to design, fabricate, deliver and
install a new cooling tower for an industrial applicaJon. Insured engaged a professional engineering firm to design the tower structure & the related electrical and mechanical systems. An engineer employed by the firm provided field services to oversee the fabricaJon of the tower and the installaJon by subcontractors. Three years aSer the work was completed, the tower experienced seUlement problems and other issues that affected its performance.
• The client iniJated legal acJon to recover for damage to the tower and resultant business interrupJon to manufacturing operaJons. The client’s counsel alleged that the damage to the tower was caused by a) an improper design of the foundaJons and tower structure by the subcontracted structural engineer; b) faulty materials and workmanship in construcJon of the foundaJon by the subcontractor; and c) an error or omission by the staff engineer while providing field services for erecJon of the tower. The CGL policy contained a “professional services” exclusion.
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Trigger of PLI & CGL Coverage
Which Policy Will Cover the Claim?
• There is oSen not one clear answer. The examples present situaJons where the answer will very likely only be determined aSer considering the relevant facts and circumstances of each case and examining how the plainJffs’ counsel framed the allegaJons of liability that resulted in the claim.
• QuesJons about which policy will respond to mixed allegaJons also give rise to quesJons regarding which limits and deducJbles apply, as well as how liability may be apporJoned if both policies cover the claim.
• The point here is that answers can oSen only be found aSer thorough invesJgaJon by the insurers.
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Raj & PLI Claim • Early & pro acJve involvement in coverage & invesJgaJon and claims strategy
• ProacJve and efficient claims resoluJons • SubrogaJon's and recoveries rights preserved • Diary system on claims status and reserves adequacies • CollaboraJon with insureds, placing broker and underwriters
• Data and trend analysis • Summary of open claims and reserves submissions
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Raj’s value My InternaJonal Insurance background UK USA Canada: – Bachelor Degree BBA and LLB. – Started career working for Lloyd’s Broker, London generaJng facultaJve and treaty business in W. Africa.
– Claims exposure as an IA, Company’s and Consultant – Ability to navigate the dynamics of claims advocacies – Proven technical claims resource – Strong negoJaJon and policy interpretaJon training – Strong AccounJng and ReconciliaJon trends analysis background
– OrganizaJonal and collaboraJve and communicaJons skills.
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The value I will bring: Understanding Policy Coverage & Account Value – Researching case laws and coverage trends – I excel in collaboraJng & negoJaJng with insured's, CGL insurers, & underwriters on coverage issues & claims evaluaJons
– Managing Defence Team – Defence costs and agreements
• Pro acJve involvement in claims management – Accurate & efficient data collecJng and mining. Trends and gap analysis
– Timely financial reporJng and reconciliaJons – SubrogaJon recoveries awareness & process – CollaboraJon with Broker, insured & underwriters
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