Dotting the i s & Crossing the t s Professional Indemnity Insurance

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1 Dotting the i s & Crossing the t s Professional Indemnity Insurance Michael Earp 26 th May 2009

2 Dotting the i s & Crossing the t s Professional Indemnity Insurance CONTENTS OF PRESENTATION What is Professional Indemnity Insurance? How Professional Indemnity works?

3 Dotting the i s & Crossing the t s Professional Indemnity Insurance CONTENTS OF PRESENTATION What is Professional Indemnity Insurance? How Professional Indemnity works?

4 What is Professional Indemnity Insurance? A form of Liability Insurance? An indemnity for the insured It is not It is not a guarantee It is not an indemnity for the Principal It is not cover for any losses sustained It is not cover for faulty workmanship or materials

5 What is Professional Indemnity Insurance? How are liabilities for professionals created? Professional An occupation requiring either purely intellectual skill or a manual skill controlled by the intellectual skill of the operator. Work of a Professional characterised by: The work is skilled and specialised Practitioners are committed to certain moral principles Usually practitioners belong to a professional association Professionals have high status in the community

6 What is Professional Indemnity Insurance? How does Professional Liability arise? Common Law Professional Statute Law Torts Contract The consultant shall exercise reasonable skill and care in the performance of his obligations Civil Codes Health & Safety Legislation Building Codes

7 Dotting the i s & Crossing the t s Professional Indemnity Insurance CONTENTS OF PRESENTATION What is Professional Indemnity Insurance? How Professional Indemnity works?

8 HOW PROFESSIONAL INDEMNITY WORKS TYPICAL PROFESSIONAL INDEMNITY POLICY Operative Clause Costs and Expenses Extensions Exclusions Conditions Endorsements

9 HOW PROFESSIONAL INDEMNITY WORKS EXAMPLE INSURING CLAUSE Insurers will indemnify the Insured for legal liability from any claim made against the Insured up to the limit of indemnity stated in the policy in consequence of breach of professional duty by the Insured arising from the performance of the professional activities and duties by the Insured or others on behalf of the insured

10 HOW PROFESSIONAL INDEMNITY WORKS LEGAL LIABILITY A Consultant is paid 1,000,000 to Design an extension to an existing exhibition centre. The design fee within the cost is 20,000. After completion, during an exhibition, the new roof collapses where it adjoins the old roof. If the collapse of the roof was due to design fault: What are the potential legal liabilities against the consultant that are covered by PI Insurance?

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12 LEGAL LIABILITY COST OF REDESIGN The owner may employ another Designer or Contractor The fees for re-design may be a substantial proportion of, or the fees could exceed, the original fee of 20,000

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14 LEGAL LIABILITY COST OF REPAIR/RECTIFICATION To merely replace as before could result in the roof collapsing again Therefore the claim could include betterment Repair/rectification may represent a substantial proportion of the contract value of 1,000,000

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16 LEGAL LIABILITY DIRECT LOSSES Damage to exhibits????? Damage to original exhibition centre????? Injury to persons in the exhibition hall?????

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20 LEGAL LIABILITY SUMMARY PI the headings of loss not specified Public Liability Insurance may not include cover for Property Damage or Bodily Injury as a result of a design fault PI includes Indirect Losses such as financial, consequential and economic losses Does not cover moral or commercial aspects

21 HOW PROFESSIONAL INDEMNITY WORKS EXAMPLE INSURING CLAUSE Insurers will indemnify the Insured for legal liability from any claim made against the Insured up to the limit of indemnity stated in the policy in consequence of breach of professional duty by the Insured arising from the performance of the professional activities and duties by the Insured or others on behalf of the insured

22 CLAIMS MADE A B C D A Design Error B Construction completed C Error discovered D Claim made

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24 CLAIMS MADE SUMMARY Consider when the claim is made not when the error is made Notification of a circumstance is usually deemed to be a claim made Late or non-disclosure can prejudice indemnity Policy needs to be renewed annually Cover usually ceases at expiry of the policy

25 HOW PROFESSIONAL INDEMNITY WORKS EXAMPLE INSURING CLAUSE Insurers will indemnify the Insured for legal liability from any claim made against the Insured up to the limit of indemnity stated in the policy in consequence of breach of professional duty by the Insured arising from the performance of the professional activities and duties by the Insured or others on behalf of the insured

26 LIMIT OF INDEMNITY An indemnity for the Insured Professional Indemnity policies are policies of indemnity It reimburses the Insured against sums they are legally liable to pay as damages In practice money is usually paid directly to the claimant by insurers Limit usually Any one claim for consultants Aggregate Indemnity Limits for contractors

27 HOW PROFESSIONAL INDEMNITY WORKS EXAMPLE INSURING CLAUSE Insurers will indemnify the Insured for legal liability from any claim made against the Insured up to the limit of indemnity stated in the policy in consequence of breach of professional duty by the Insured arising from the performance of the professional activities and duties by the Insured or others on behalf of the insured

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29 NEGLIGENCE Negligence is the Tort by which fault is determined under English Law Negligence is not immovable, it can change depending on the latest law case Not a first party cover Cover for failure to achieve the: standard of an ordinary skilled man exercising and professing to have that special skill

30 HOW PROFESSIONAL INDEMNITY WORKS EXAMPLE INSURING CLAUSE Insurers will indemnify the Insured for legal liability from any claim made against the Insured up to the limit of indemnity stated in the policy in consequence of breach of professional duty by the Insured arising from the performance of the professional activities and duties by the Insured or others on behalf of the insured

31 PROFESSIONAL ACTIVITIES AND DUTIES Professional Services The activities and duties normally undertaken by an Architect, Consulting Engineer or Surveyor Not just design Inspection Supervision of construction Measurement Technical investigation Analysis Calculation

32 HOW PROFESSIONAL INDEMNITY WORKS EXAMPLE INSURING CLAUSE Insurers will indemnify the Insured for legal liability from any claim made against the Insured up to the limit of indemnity stated in the policy in consequence of breach of professional duty by the Insured arising from the performance of the professional activities and duties by the Insured or others on behalf of the insured

33 OTHERS ON BEHALF OF THE INSURED I.E. CONTINGENT LIABILITY These can be consultants, specialist or general subcontractors Important that full rights of subrogation are maintained so Insurers rights are not impaired. Check that subbie s have adequate PI insurance and that it is renewed!

34 HOW PROFESSIONAL INDEMNITY WORKS TYPICAL PROFESSIONAL INDEMNITY POLICY Operative Clause Costs and Expenses Extensions Exclusions Conditions Endorsements

35 Costs and Expenses Costs and expenses incurred in investigating, defending or settling any claim Usually in addition but sometimes included within the limit of indemnity Must be incurred with Underwriter s consent Claimants costs would form part of damages

36 HOW PROFESSIONAL INDEMNITY WORKS TYPICAL PROFESSIONAL INDEMNITY POLICY Operative Clause Costs and Expenses Extensions Exclusions Conditions Endorsements

37 Extensions (1) Loss of Documents Libel & Slander Breach of Copyright Policy covers liability arising from lost or destroyed documents and costs of replacement Policy covers liability arising from Libel or Slander Policy covers claims alleging breach of copyright, patent, trademark or trade name

38 Extensions (2) Joint Ventures Policy indemnifies Insured for: Liability arising out of Insured s Professional activities and duties as part of any Joint Venture

39 HOW PROFESSIONAL INDEMNITY WORKS TYPICAL PROFESSIONAL INDEMNITY POLICY Operative Clause Costs and Expenses Extensions Exclusions Conditions Endorsements

40 Exclusions Specific Guarantees or Warranties of performance Liquidated Damages or Penalties Claims or Circumstances known at inception Claims involving Pollution which is not sudden and accidental The self insured retention

41 Exclusions CONTRACTUAL LIABILITY More Professional Indemnity Claims arise from bad contracts than bad advice

42 Exclusions CONTRACTUAL LIABILITY EXCLUSION Excluding any claim or claims where liability arises from the entering of any contract or the granting of any express warranty or guarantee unless such liability would have existed in the absence of the contract, express warranty or guarantee.

43 ADDITIONAL LIABILITY Exclusions CONTRACTUAL LIABILITY EXCLUSION ORIGINAL LIABILITY

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45 HOW PROFESSIONAL INDEMNITY WORKS TYPICAL PROFESSIONAL INDEMNITY POLICY Operative Clause Costs and Expenses Extensions Exclusions Conditions Endorsements

46 Conditions Claims Notification Written notification, as soon as possible, of any claim, threat of claim, writ or summons or event or circumstance that may give rise to a claim Subrogation Underwriters become subrogated to all rights of recovery on payment of a claim (such subrogation rights not to be waived by Insured)

47 HOW PROFESSIONAL INDEMNITY WORKS TYPICAL PROFESSIONAL INDEMNITY POLICY Operative Clause Costs and Expenses Extensions Exclusions Conditions Endorsements

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