PROFESSIONAL INDEMNITY INSURANCE

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1 PROFESSIONAL INDEMNITY INSURANCE PREAMBLE These are unusual times for the global economy. The economic meltdown characterised by the severe credit crunch, weak demand for good and services, shrinking productive capacities in the real sector, unemployment of a large percentage of the workforce, etc, coupled with the phenomenal crash of capital markets worldwide, bear eloquent testimony to the crises that have engulfed the advanced, developing and less developed countries in varying proportions. One interesting issue needs to be raised here. The poor health of corporate entities, attributed mainly to the infidelity of managers and captains of industry, is at the heart of the economic crises in all countries. In essence, the economies of countries are as strong as the state of health of their corporate entities implying that where corporate entities are well governed or are managed properly, it will dovetail into prosperity for the entire economy. One fact that needs to be addressed however is the culpability of managers of corporate entities and professionals who had business transactions with them like reporting accountings, external auditors, estate surveyors and valuers, actuaries, rating agencies, stockbrokers, etc. For information and emphasis, these professionals play very crucial roles in the financial reporting process. Indeed, the financial statements of these organisations were impacted by the activities of these professionals in varying degrees. For instance, an external auditor relies on the valuation of assets carried out by estate surveyors and valuers to determine the exact worth of assets to be accepted and reflected in the financial statements. In most cases, without carrying out further inquiries, most investors rely on the auditor s opinion to make their investment decisions. So when things go wrong, they blame the auditor who is vicariously liable for the professional work of the estate surveyor and valuer. It is therefore apposite for the auditor, in this case, to have an indemnity that will protect him, his business, his personal assets, his goodwill and the name of his profession that may be threatened by unforeseen litigations by any aggrieved client or customer. Indeed, many see him as an easy target as he is perceived to have deep pocket to settle litigation obligations. While we are not trying to say that professionals are saints or that any wrong doing, negligence or infidelity can be attributed to them, the question must be put to them: how well are they financially protected in the event of litigations against them and boards of directors of companies which they offered professional services? Can they shoulder the burden and cost of legal fees? Is their alleged deep pocket true? How well can their various brands be defended in the court and in the public perception? Are they indemnified against actions taken which, for instance, produced unintended results? Will the fees charged be enough to cater for litigation support? Who bells the cat when the

2 chips are all down? It is against this background that we have set out this week to discuss Professional Indemnity Insurance policy.. The above introductory paragraph was not deliberately crafted to create the impression that only businesses and professionals who deal with them or who have vital roles to play in financial reporting are the only ones who at the risk of litigations. Far from it. All professionals who deal with customers, whether corporate or individual, have real need for professional indemnity insurance. Take for instance a specialist medical doctor or if you like, a surgeon, that carries out an operation on a patient and due to some negligence, forgot some cotton wool inside the patience or managed the operation in such a manner that the patience over-bleeds and subsequently died. Indeed, there are cases of medical practitioners who did not stitch operated-parts properly such that the operations resulted into more complications for the patients. In the first instance, the patient may elect to sue the surgeon for damages for negligence and breach of the duty of care which caused her severe and avoidable pains. The chance of the guilty verdict against the surgeon is very high as the courts are set to protect and defend the cause of the poor and disadvantaged. In the second scenario, the estate of the deceased patient can also sue. If it is medically established that the over-bleeding which led to the death of the patient was caused by the negligence of the surgeon, the estate of the deceased can also obtain remedy from the courts. Here lies the importance of indemnity insurance which protects the professional from claims if his client holds him responsible for errors or failure of his work to perform as stated in the insurance contract. Therefore, Professional indemnity insurance is a product developed by the insurance industry to provide protection to professionals whose services inherently require that they observe a duty of care to their customers. When such duties are breached and the affected customer resorts to legal actions to remedy the negligence, the insurer will shoulder the financial responsibilities that may arise. Why Professionals Need Indemnity Insurance One distinguishing quality of a professional is the possession of special skills which can be relied upon by others. With this, he holds himself or herself out as an expert in that area. Accordingly, he is expected to exercise the skill and expertise at the level set by the profession. Yet, professionals are humans and can make mistakes or even fail to exercise the professional skills and judgement at the level expected by the client. Even when negligence is not established, a professional can be sued for mistakes that result in injury, loss or damage to the client. When this occurs, the professional indemnity insurance will come to the rescue. Let me note here that many professionals operate as sole practitioners or in partnerships. The concept of limited liability partnership is still rare in Nigeria. The implication of this is that professionals do

3 not enjoy any limited liability. They are required to settle all losses that may arise from their business dealings with the assets of the business and their own personal assets. This is dangerous and risky. For partners, the challenge is even more severe particularly when other members of the partnership can take decisions that are binding not only on every partner, but also impose on them some obligations in the event of any problem. In spite of the existence of a partnership agreement, no partner may be able to repudiate any obligation entered into by the other partners. It is to avoid situations like this that it has become expedient for practitioners irrespective of how they carry out their businesses to procure professional indemnity insurance as a way of hedging against risks that may arise. This would protect not only the partners and the business, but also their personal assets on which the courts may place liens in order to defray all obligations that may arise including financial penalties imposed by judgement. Summary Of cover A typical professional indemnity insurance policy provides indemnity to the insured, his executors and assigns/administrators in their professional capacity from any claims made against them for breach of duty during the currency of the policy. It is protection against litigation obligations that arise from professional negligence and mistakes. While we admit that, as humans, professionals can make mistakes and indeed, they often do, their clients or customers expect that as acclaimed experts, their advice, counsel and decisions would be error-free and beyond reproach. It is this belief and expectation that encourage the public to trust professionals and repose in them a high degree of confidence. Thus, they must justify this public confidence to stay in business by discharging their responsibilities to the highest level of standard. Where they fail to achieve the desired standard evidenced by mistakes, the customers may take steps to remedy the wrong or action. The cover of the policy therefore, is to the extent of the obligation imposed by the courts or through out-of-court settlement of litigations or alternative dispute resolution methods subject to the limit of the policy. The coverage of the policy includes provision for legal defence cost no matter how baseless the allegations may be. Documentation required Thus, to procure an indemnity insurance policy, a prospective policy holder would be required to state: Limit of Indemnity His/her Profession. The obligations may vary from profession to profession and the courts will place premium on their perceived importance. In the same manner, the policy may vary from one insurer to another. Whatever the situation, prospective buyers of the policy are encouraged to exhaustively consider the nature of

4 jobs they handle and the risk associated with doing business with any organisation and the contents of the policy before procuring same. While risky jobs are most likely to attract higher premium, they are encouraged to use the services of experienced insurance brokers to obtain best value at the least possible premium. Documents Required In The Event Of Claim Completed claim Form Statement of claim Correspondence exchanged between the claimant and the Insured Any other relevant documents All the claims made, fact, situation and circumstances that may result in a claim must be expeditiously brought to the attention of the insurer within the currency or period of the policy. The insured must not have had fore knowledge of the situation or circumstances prior to the period of the policy. In other words, the circumstances must occur during the period of the policy. Concluding Remarks From the discourse above, it should become obvious that professional indemnity insurance policy is a must for all professionals who deal with customers and clients in the course of their work. This is because, the policy has the capacity to protect the assets of the professional in the event of a claim such that he continues to remain in business. As the national economy continues to develop and people become more aware of their rights, the spate of litigations for breach of duty of care may increase particularly for players in the informal sector like barbers, head-dressers, event managers and the like. The message here is that everybody that has reason to render professional services to clients must imbibe the culture of procuring indemnity insurance product as part of corporate survival strategy. The challenge of meeting litigation costs and desire to protect long established goodwill, should be the driving force. FEEDBACK The culture of litigations against professionals is still at its developmental stage in Nigeria. In fact, due to cultural practices, many do not want to be associated with the collapse of anybody s business, hence, cases of wrong doings are neither reported to appropriate agencies nor taken up for redress in the courts. Accordingly, they would rather sleep on their rights than seek legal redress for negligence or mistakes of professionals. This has accounted for the relatively low patronage of this policy in the Nigerian market compared to other jurisdictions. I am certain that this trend will not continue forever. Therefore, professionals must proactively wake up and procure this policy as part of their long-term survival strategy. I would be delighted to read from insurers and professionals who have had any experiences with this fledgling insurance product. I encourage you to share your experiences with this page. Please speak to Funmi on this page called INSURANCE PARLIAMENT. See you next week on this page.

5 Send E- mail to Mrs. Funmi Babington-Ashaye, FCII, FCIIN. MD/CEO, Risk Analyst Insurance Brokers limited

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