Re: Amendment to Professional Liability Insurance Policy Wordings

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1 October 31, 2014 To: All Policyholders of Pro-Demnity Insurance Company From: Byron Treves, President & C.E.O. Re: Amendment to Professional Liability Insurance Policy Wordings Impacts policyholders that purchase excess insurance above the insurance provided by Pro-Demnity A recent court decision released November 14, 2013 held that unless the excess insurance policy contains a duty to defend provision, there is no obligation for the excess insurer to contribute to defence costs (ACE INA Insurance v. Associated Electric & Gas Insurance Services Limited ( AEGIS ) ). The consequence of this decision is that Pro-Demnity will be obligated to pay the entire defence costs regardless of the amounts claimed or damages paid with the effect that the increased defence costs must be financed through policyholders premiums. The Policy amendments are to address this inequity. ACTION Those policyholders that purchase excess insurance from another insurance company above the limits of liability provided by Pro-Demnity, should contact their insurance brokers to arrange for an appropriate endorsement amending the excess policy wording to provide the necessary insurance including payment of defence costs in excess of Pro-Demnity s insurance to avoid any gaps in coverage with respect to claims expenses. Effective Date The Policy amendments will be introduced 3 months after the date of this Bulletin, to afford sufficient time for policyholders that purchase excess insurance to instruct their insurance brokers to make the necessary changes to their coverage. The changes in respect of each policyholder will be effective on renewal of their existing insurance through Pro-Demnity, at which date the excess insurance should reflect their changes to coordinate their coverage with that of Pro-Demnity. Pro-Demnity Insurance Company 111 Moatfield Drive, Toronto, ON M3B 3L6 Canada T F

2 Amendments to Policy Wordings I. MANDATORY POLICY NO.1 (That is, policies issued for the minimum Claim Limit of $250,000) New Wording A. PART II: YOUR INSURANCE THE INSURER S OBLIGATIONS 3. SUPPLEMENTARY PAYMENTS 1. THE INSURER will pay, for each CLAIM, the following: a) CLAIMS EXPENSES, provided that in the event YOU become liable to pay DAMAGES arising out of a CLAIM in an amount that exceeds the amount set out in the Certificate of Insurance under CLAIM Limit of Liability, THE INSURER s obligation to pay YOUR CLAIMS EXPENSES shall be limited to an amount that is calculated by multiplying the total CLAIMS EXPENSES by the amount set out in the Certificate of Insurance under CLAIM Limit of Liability and dividing the product by the DAMAGES YOU are required to pay, unless YOU have specifically arranged professional liability insurance that applies as excess to the insurance provided by this POLICY. In that event, the maximum amount THE INSURER will pay as CLAIMS EXPENSES incurred by THE INSURER to investigate, defend, settle, arbitrate or litigate a CLAIM covered by this POLICY, is $200,000; b) Post-judgment interest upon that part of a judgment which falls within the remaining Limits of Liability at the time. The changes to Insuring Agreement 3. SUPPLEMENTARY PAYMENTS 1.a) above are coloured blue. This requires that the excess insurance company provides insurance for the defence and investigative costs that exceed $200,000. 2

3 I. MANDATORY POLICY NO.1 (continued) B. PART IV: GENERAL CONDITIONS YOUR DUTIES IN THE EVENT OF A CLAIM WHAT YOU MUST DO: 2. COOPERATION: YOU must cooperate with THE INSURER, and, upon request, provide written statements, submit to examinations and questioning, assist in effecting settlement, secure and give evidence and assist in any reasonable way THE INSURER deems necessary. YOU must give this cooperation at YOUR own cost. YOU must promptly pay all CLAIMS EXPENSES over and above the CLAIMS EXPENSES payable by THE INSURER under this POLICY. The changes to this General Condition YOUR DUTIES IN THE EVENT OF A CLAIM WHAT YOU MUST DO: No. 2. COOPERATION above are coloured blue. Failure to pay is a breach of the Policy Conditions and may invalidate the Policy. There are no other changes to Policy No. 1. 3

4 II. INCREASED LIMITS POLICY NO. 4 (That is, policies issued for Claim Limits above $250,000) New Wording A. PART II: YOUR INSURANCE THE INSURER S OBLIGATIONS 3. SUPPLEMENTARY PAYMENTS 1. THE INSURER will pay, for each CLAIM, the following: a) CLAIMS EXPENSES, provided that in the event YOU become liable to pay DAMAGES arising out of a CLAIM in an amount that exceeds the amount set out in the Certificate of Insurance under CLAIM Limit of Liability, THE INSURER S obligation to pay YOUR CLAIMS EXPENSES shall be limited to an amount that is calculated by multiplying the total CLAIMS EXPENSES by the amount set out in the Certificate of Insurance under CLAIM Limit of Liability and dividing the product by the DAMAGES YOU are required to pay, unless YOU have specifically arranged professional liability insurance that applies as excess to the insurance provided by this POLICY but only if the excess professional liability insurance policy contains terms and conditions which obligates that insurer to pay CLAIMS EXPENSES from and after the date that notice of the CLAIM is given to the insurer that has issued the excess professional liability insurance policy; b) Post-judgment interest upon that part of a judgment which falls within the remaining Limits of Liability at the time. The changes to the Insuring Agreement 3. SUPPLEMENTARY PAYMENTS 1.a) above are coloured blue. The first change coloured blue is consistent with the Mandatory Claim Limit Policy No. 1. It was not anticipated that policyholders would arrange increased limits insurance through Pro-Demnity and then purchase excess insurance above that provided by Pro-Demnity. It is equitable that both policyholders under Policies 1 and 4 are treated in the same manner. This requires that the policyholder arrange for the excess insurance company to provide insurance that will share the claims expenses in accordance with the method of calculation described therein. The second change coloured blue and bolded, removes the sharing of the defence and investigative costs based on the damages paid where the excess insurance policy wording contains an obligation to pay claims expenses from the date of notification of the claim. This requires that the excess insurance company undertakes to pay claims expenses from the date of notification of the claim to them. 4

5 II. INCREASED LIMITS POLICY NO. 4 (continued) B. PART IV: GENERAL CONDITIONS YOUR DUTIES IN THE EVENT OF A CLAIM WHAT YOU MUST DO: 2. COOPERATION: YOU must cooperate with THE INSURER, and, upon request, provide written statements, submit to examinations and questioning, assist in effecting settlement, secure and give evidence and assist in any reasonable way THE INSURER deems necessary. YOU must give this cooperation at YOUR own cost. YOU must promptly pay all CLAIMS EXPENSES over and above the CLAIMS EXPENSES payable by THE INSURER under this POLICY. The changes to this General Condition YOUR DUTIES IN THE EVENT OF A CLAIM WHAT YOU MUST DO: No. 2. COOPERATION above are coloured blue. This is consistent to the changes to the same Condition under Policy No. 1 relating to the mandatory minimum Claim Limit of $250,000. Failure to pay is a breach of the Policy Conditions and may invalidate the Policy. There are no other changes to Policy No. 4. 5

6 III. SINGLE PROJECT POLICY NO. 3 (That is, Single Project Policies issued for the minimum Claim Limit of $250,000) New Wording A. PART II: YOUR INSURANCE THE INSURER S OBLIGATIONS 1. LIMITS OF LIABILITY Subject to YOUR obligation to pay the DEDUCTIBLE shown on the Certificate of Insurance, the maximum amount THE INSURER will pay as DAMAGES for each CLAIM during the PERIOD OF INSURANCE is the amount set out in the Certificate of Insurance under CLAIM Limit of Liability; and the maximum amount THE INSURER will pay as DAMAGES for all CLAIMS during the PERIOD OF INSURANCE is the amount set out in the Certificate of Insurance under Aggregate Limit of Liability, subject always to the CLAIM Limit of Liability for any one CLAIM. The CLAIM Limit of Liability and the Aggregate Limit of Liability have application no matter how many INSUREDS are covered under one Certificate of Insurance or how many persons or organizations make a CLAIM. With respect to any INSURED or project for which insurance is provided by more than one Certificate of Insurance, the maximum amount THE INSURER will pay as DAMAGES under all Certificates of Insurance shall not exceed the Limits of Liability that apply to one Certificate of Insurance. Where insurance has been specifically arranged to apply as excess to the insurance provided by this POLICY, the maximum amount THE INSURER will pay for both DAMAGES and SUPPLEMENTARY PAYMENTS for each CLAIM during the Period of Insurance is the amount set out in the Certificate of Insurance under the CLAIM Limit of Liability. The changes to Insuring Agreement 1. LIMITS OF LIABILITY above are coloured blue. This ensures that the wording is in agreement with that under Insuring Agreement 3. SUPPLEMENTARY PAYMENTS. 6

7 III. SINGLE PROJECT POLICY NO. 3 (continued) B. PART II: YOUR INSURANCE THE INSURER S OBLIGATIONS 3. SUPPLEMENTARY PAYMENTS 1. THE INSURER will pay, for each CLAIM, the following: a) CLAIMS EXPENSES, provided that in the event YOU become liable to pay DAMAGES arising out of a CLAIM in an amount that exceeds the amount set out in the Certificate of Insurance under CLAIM Limit of Liability, THE INSURER s obligation to pay YOUR CLAIMS EXPENSES shall be limited to an amount that is calculated by multiplying the total CLAIMS EXPENSES by the amount set out in the Certificate of Insurance under CLAIM Limit of Liability and dividing the product by the DAMAGES YOU are required to pay. This provision shall not apply where insurance has been specifically arranged to apply as excess to the insurance provided by this POLICY, but in that event, the maximum amount THE INSURER will pay as CLAIMS EXPENSES incurred by THE INSURER to investigate, defend, settle, arbitrate or litigate a CLAIM covered by this POLICY, is the amount set out in the Certificate of Insurance under the CLAIM Limit of Liability less the total of both the DAMAGES and Post-judgment interest that THE INSURER has paid with respect to the CLAIM under this POLICY; b) Post-judgment interest upon that part of a judgment which falls within the remaining Limits of Liability at the time. The changes to Insuring Agreement 3. SUPPLEMENTARY PAYMENTS 1.a) above are coloured blue. In the event that excess insurance is purchased, the claims expenses are included in the limits of liability in accordance with the coverage provided by single project excess insurance policies. Single project insurances are issued to supplement the mandatory insurance program and accommodate the policyholder s obligation to meet the client s requirements. In most circumstances, spike-ups of limits of liability for single projects have replaced the need for these types of policies, which have been rarely issued in recent years. 7

8 III. SINGLE PROJECT POLICY NO. 3 (continued) C. PART IV: GENERAL CONDITIONS YOUR DUTIES IN THE EVENT OF A CLAIM WHAT YOU MUST DO: 2. COOPERATION: YOU must cooperate with THE INSURER, and, upon request, provide written statements, submit to examinations and questioning, assist in effecting settlement, secure and give evidence and assist in any reasonable way THE INSURER deems necessary. YOU must give this cooperation at YOUR own cost. YOU must promptly pay all CLAIMS EXPENSES over and above the CLAIMS EXPENSES payable by THE INSURER under this POLICY. The changes to this General Condition YOUR DUTIES IN THE EVENT OF A CLAIM WHAT YOU MUST DO: No. 2. COOPERATION above are coloured blue. This is consistent with the changes to Policies Nos. 1 and 4. Failure to pay is a breach of the Policy Conditions and may invalidate the Policy. There are no other changes to Policy No. 3. 8

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