1 IDC Member Insurance Program brought to you by LMS PROLINK Ltd. Protecting You and Your Clients LMS PROLINK Ltd. Tel University Avenue, Toll Free Suite 800 Toronto ON Fax Canada M5G 1V2
2 WEBINAR AGENDA Who We are Understanding Business Insurance Overview on Errors & Omissions Liability Overview on Commercial General Liability Risk Management Practices Claims Overview Q&A
3 WHO WE ARE LMS PROLINK is a diversified insurance and financial services brokerage NEW Insurance manager for IDC s Insurance program PROLINK Group is one the largest private insurance brokerage networks in Canada Specializing in Professional Association insurance programs since 1986 Currently manage over 45 professional liability insurance programs We also offer home, auto, life and health benefits to IDC members
4 UNDERSTANDING BUSINESS INSURANCE General Policy Types: Commercial General Liability Property Insurance Crime Insurance Specific Policy Types: Professional Liability ( E&O ) Directors & Officers Liability ( D&O ) Cyber Liability Bonds
5 UNDERSTANDING BUSINESS INSURANCE Overview of Liability Insurance Liability Insurance Policy Types: 1. Personal Liability included under your homeowners policy; 2. Commercial General Liability ( CGL ); 3. Professional Liability known as Errors & Omissions insurance ( E&O ), excluded from #1 & #2.
6 OVERVIEW ON E&O INSURANCE What is E&O Insurance? E&O covers mistakes, negligent and wrongful acts committed while performing professional activities within the scope of the profession covered. Scope of services as defined by IDC; Covers allegations, whether factual or not. Covers your defense costs and damages awarded to the claimant. E&O policies are offered on a Claims-Made basis: The policy must be in place when the claim is reported (i.e., made ).
7 OVERVIEW ON E&O INSURANCE Key Policy Features The Retroactive Date: Often inception date of the first E&O policy you purchase through the insurer; The first date the policy will respond to claims; Services rendered prior to this date are not covered; Always tell your new E&O insurer if you have purchased E&O in the past; IDC Program has full retroactive coverage for members previously insured.
8 OVERVIEW ON E&O INSURANCE Key Policy Features Extended Reporting Period ERP ( Tail coverage ): Extends an E&O policy with insurer after the policy is cancelled or terminated; Covers claims reported after the policy is cancelled/terminated for wrongful acts committed while the policy was in effect; Members should maintain ERP coverage for at least 6 years after you cease practicing; All insurers charge a premium for ERP; When dissolving a partnerships buy ERP; NEW for IDC: FREE ERP for members on Maternity leave for up to 12 months.
9 OVERVIEW ON E&O INSURANCE Proper E&O Policy Benefits of purchasing E&O through the IDC program: The most comprehensive coverage for your business; Better pricing compared to the marketplace; Simple application process; Coverage for Ontario Designers registered under Bill 124; Association leverage. Purchasing E&O and CGL from one insurer: Reduces chances for gap in coverage; Designer liability claims can fall into grey area; Simple to manage one common renewal date; Results in smoother handling of liability claims.
10 OVERVIEW ON E&O INSURANCE Benefits of the NEW IDC Program E&O Policy Enhancements: Higher limits of coverage in each member package available; World Wide E&O coverage for lawsuits in Canada and the US; No exclusion for bodily injury or property damage claims in the E&O policy; Coverage for Disciplinary actions increased from $10,000 to $25,000; New Types of Coverage: Intellectual Property Infringement: $250,000 limit; Privacy Breach Expenses: Liability to defend lawsuit: $250,000 limit; Privacy Administration Expenses: $50,000 limit; Identity Event Services (PR & Marketing): $50,000 Loss of Documents Coverage: $50,000.
11 OVERVIEW ON CGL INSURANCE What is CGL Insurance? CGL protects you against claims brought against you for bodily injury or property damage sustained by a third party (i.e., your customers, suppliers, sub-contracted trades etc.). Does not cover bodily injury or property claims as a result of your professional services. Covers allegations, whether factual or not. Covers your defense costs and damages awarded to the claimant. Bodily injury claims are very expensive to defend and the damages awarded can easily exceed $1,000,000. CGL policies are offered on an Occurrence basis: The policy in place when the incident giving rise to the claim occurred will respond.
12 OVERVIEW ON CGL INSURANCE What is Covered in the CGL Policy? Bodily Injury or Property Damage resulting from your completed operations ; Products Liability: Bodily Injury or Property Damage resulting from products you sell; Not intended to cover customer complaints on product quality; Foreign built products are higher risk (i.e., Chinese drywall issues). Advertising Liability and Personal Injury: Libel and slander; Advertising misrepresentations; Non-owned Automobile Liability; Employer s Liability.
13 OVERVIEW ON CGL INSURANCE What is Covered in the CGL Policy? In order to trigger coverage under the CGL policy, the following must be present: Property damage (i.e., physical injury to tangible property, including loss of use of tangible property) or bodily injury must have been sustained by a third party; Incident occurred during the policy period; The designer is legally obligated to pay compensatory damages;
14 PROGRAM PACKAGE OPTIONS Coverage amount options available: 1. Intern/Provisional Members: E&O & CGL: $500,000 per loss / $500,000 per policy; 2. E&O & CGL: $1M per loss / $1M per policy 3. E&O: $1M per loss / $2M per policy, CGL: $2M per loss / $2M per policy 4. E&O & CGL: $2M per loss / $5M per policy Fixed premium if revenues <$500,000; $1,000 E&O Deductible applied to damages paid; $500 CGL Deductible applied.
15 Direct Costs Financial burden Immediate legal defense costs; Damages that must be paid if found liable. Lost time: Selecting legal counsel with proper experience; Time commitment to work with your lawyer; Court proceedings. Indirect Costs Emotional stress; Reputation potentially tarnished: Protection Against Claims: Use appropriate contracts; Utilize risk management techniques to mitigate chance of claims; Everyone involved in a project should be insured. IMPACT OF CLAIMS
16 CANADA IS BECOMING MORE LITIGIOUS Diamond & Diamond Lawyers Personal Injury Alliance AreYouInjured.ca WeSueForYou.com HaveYouBeenHurt.com
17 RISK MANAGEMENT What is it? Policies and procedures implemented to reduce your exposure to serious financial loss. Key Elements: Risk identification: Exposures and sources of claims; Professional responsibility;
18 RISK MANAGEMENT Exposures / Sources of claims for Designers: Poor client communication; Poorly documented client files; Contracts; Management of sub-contractors; Lack of technical/product knowledge (expertise); Project Management; Taking on higher-risk projects.
19 DOCUMENTATION All actions should be documented immediately. All memos and conversations documented with: Topics discussed; Time and date; Actions to be taken; Recommendations to the client; Client s refusal to follow your recommendations; File hardcopy notes or electronically in client files; Send summary s to clients. Documentation must be objective, avoid personal opinions.
20 CONTRACTS Your lawyer should review the contract template utilized. Do not play lawyer when: Client hires a lawyer for contract negotiations; Writing or responding to specific legal clauses. Explicitly define the nature and terms of the services to be provided and not provided. Clients assume service is being provided unless specifically excluded; Form letters do not help defend claims. Do not auto-renew contracts for more than 3 years. Timing of the delivery of your services. Terms, basis of fee structure and invoicing schedule. You cannot remove your liability from an engagement. Ensure contracts are signed by clients and you.
21 MANAGING SUB-CONTRACTORS Obtain certificates of liability insurance from all sub-contractors every year; Know Your Sub-contractor, history, reputation, financial stability; Your insurance is meant to protect you, not your sub-contractors; Never add a sub-contractor as additional insured on your policy; Do not assume liability of sub-contractors in client contracts; Less risk if your clients contract directly with the sub-contractors; Document complaints and problems that your clients have with subcontractors.
22 PROJECT MANAGEMENT Higher risk if the designer is responsible for hiring all sub-contractors & professionals; Does your client contract make you responsible for all sub-contractors & professionals? Are you sourcing and buying furnishings on behalf of your client? Higher risk if designer is responsible for installation, manufacturing, fabrication etc.; Contracts with sub-contractors & suppliers should include indemnification / hold harmless clauses; Additional insurance may be required for Design/Build Exposures Builder s Risk policy.
23 CLAIMS OVERVIEW When is it a claim? What to do in the event of a claim? What happens after the claim? Claims examples
24 WHEN IS IT A CLAIM? The following cases should be treated as potential claims: Receive statement of claim or notice from plaintiff s lawyer; Receive threatening comments from another party regarding lawsuit; You made an error that may reasonably give rise to a future claim. When in doubt, report an incident or circumstance to LMS PROLINK.
25 WHAT TO DO IN EVENT OF A CLAIM? Do not admit liability or fault to the claimant. Only state objective facts to the client claiming against you. Do not attempt to negotiate settlement: i.e., reimbursing a client for property damage. Notify LMS PROLINK immediately: Send a letter/ detailing the claim or the circumstances that could lead to a claim. Pull together & secure all relevant documentation on the file. Compile a sequence of events and narrative. Potential Benefits of reporting a claim quickly: Determining if the situation may be repaired, settled or defended; Minimizing the potential loss; Minimizing adverse publicity.
26 WHAT HAPPENS AFTER CLAIM IS REPORTED? Matter is reviewed by an in-house liability claims adjuster. Adjusting firm is hired to investigate the claim. Insured should contact LMS PROLINK if they are not satisfied with the claims service. Insurer appoints legal counsel specialized in liability insurance if they believe legal action is required. 90% of E&O claims are settled out of court. Insurers can lose control of the situation; Litigation costs are high and rising quickly (10.5%/yr); Deep pocket theory. Liability claims are open anywhere from 1 to 8 years.
27 E&O CLAIM PRODUCT PROBLEM Slip and Fall in Restaurant Leads to $223,000 Claim Designer selected glass tile in bar area renovation; Patron slipped on wet tile and sustained broken arm, broken collarbone and concussion. Plaintiff sued restaurant for $1,500,000. Restaurant brought a third party action against the designer claiming he was negligent in failing to select safe flooring materials. Settlement was not negotiable due to the plaintiff s unreasonable expectations. Outcome: Insurer for designer paid $150,000 in damages to plaintiff; Insurer for restaurant paid $150,000 in damages to plaintiff; Insurer for designer incurred $73,000 in legal fees.
28 E&O CLAIM DESIGN ERROR Subrogated Claim by Property Insurer from Negligent Design in Office Space Designer selected glass panes to hang from the ceiling in office space renovation; Ceiling drywall fell under the weight of glass panes after being in place for 4 years; Client of designer filed property damage claim with their insurer for $579,000; Property insurer acquired the client s rights to pursue recovery against any liable party; Insurer sued the designer and contractor for negligent design. Outcome: Insurer for designer paid $125,000 in damages to plaintiff; Insurer for contractor paid $250,000 in damages to plaintiff; Insurer for designer incurred $18,000 in legal fees.
29 E&O CLAIM DESIGN ERROR Homeowner sues designer after sustaining injury due to incorrect kitchen cabinet design. Homeowner burns stomach on stove element when reaching to microwave; Homeowners alleges that cabinet holding microwave was in dangerous position design error. Outcome: Insurer for designer paid damages to plaintiff; Insurer for designer incurred legal defense costs.
30 E&O CLAIM BANKRUPT CONTRACTOR Condominium Board sues designer over installation deficiencies by general contractor. Designer hired general contractor to complete elements of Condo refreshment project; There were major deficiencies in wallpaper installed in building; GC spent one year fixing the wallpaper problems GC went bankrupt after one year passed. Condo corporation sued designer because GC was bankrupt and the designer hired the GC. Outcome: Insurer for designer paid damages to plaintiff and incurred legal defense costs;
31 E&O CLAIM FRIVOLOUS LAWSUIT Architect names the designer as a third party on to a lawsuit from an injured Casino employee Casino employee sustains injury after falling into a water fountain in the casino lobby. The designer was responsible for designing elements of the lobby, but not the fountain. The designer had thorough documentation defending her case. Outcome: The insurer only incurred minor defense costs with successful defense. No negligence.
32 CGL CLAIM BODILY INJURY Homeowner sues designer after sustaining injury during basement renovation. Homeowner is claiming negligence on part of GE and Designer because railing was removed to install new one. Client alleges he slipped and fell going down basement stairs in his residence. Contract was at site working, but no one witnessed the fall. Outcome: Insurer for designer paid investigative expenses of $10,000 released from suit as not at location; Insurer for contractor settled claim for damages to plaintiff;
33 Thank You For Your Time PLEASE CONTACT US FOR MORE INFORMATION LMS PROLINK Ltd. Tel University Avenue, Toll Free Suite 800 Toronto ON Fax Canada M5G 1V2
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