\ Authorized Representative Simmlands Insurance Services Ltd. 1 Professional Liability Wordings

Transcription

1 INSURE IN CANADA A RISK For purposes of the Insurance Companies Act (Canada), this document was issued in the course of Lloyd s Underwriters insurance business in Canada 01/10 LSW1669 IDENTIFICATION OF INSURER / ACTION AGAINST INSURER This insurance has been effected in accordance with the authorization granted to the Coverholder by the Underwriting Members of the Syndicates whose definitive numbers and proportions are shown in the Table attached to Agreement No.L10132 hereinafter referred to as the Underwriters. The Underwriters shall be liable hereunder each for his own part and not one for another in proportion to the several sums that each of them has subscribed to the said Agreement. In any action to enforce the obligations of the Underwriters they can be designated or named as Lloyd s Underwriters and such designation shall be binding on the Underwriters as if they had each been individually named as defendant. Service of such proceedings may validly be made upon the Attorney In Fact in Canada for Lloyd s Underwriters, whose address for such service is 1155 rue Metcalfe, Suite 2220, Montreal, Quebec H3B 2V6. Any notice to the Underwriters may be validly given to the Coverholder. IN WITNESS WHEREOF the Underwriters through their representative, Simmlands Insurance Services Ltd. duly authorized by them for this purpose have executed and signed this Policy. Per \ Authorized Representative Simmlands Insurance Services Ltd. 1 Professional Liability Wordings

2 PROFESSIONAL LIABILITY INSURANCE (SISL LSW 228a Amended - DEFENCE COSTS INCLUDED WITHIN THE LIMIT OF LIABILITY) THIS IS A CLAIMS MADE AGGREGATE POLICY INSURING CLAUSE 1. WHEREAS the Insured, as defined herein, has made to the Insurer a written Application Form, a copy of which is attached, containing particulars and statements which are hereby agreed to be the basis of this Policy and are to be considered as incorporated herein, and the Premium (as stated in the Policy Declaration) being received by Insurers. 2. WE, the Insurer, to the extent and in the manner hereinafter provided, and subject to the Terms and Conditions of this Policy HEREBY AGREE to pay on behalf the Insured for Claims made against the Insured during the Period of this Insurance against all sums which the Insured shall become legally liable to pay as damages in accordance with the law of any country Provided, however, that the Claim must be made against the Insured in a court of competent jurisdiction in any province or territory of Canada; arising out of any bodily injury, mental injury, illness, disease or death of any patient caused by any negligent act, error or omission committed by the Insured in or about the conduct of the Insured's occupation or business as stated in the Application Form or Declaration, or Good Samaritan Acts, (hereinafter referred to as "Professional Liability") and pay all Defence Costs incurred with the Insurers consent, such consent not being unreasonably withheld, in connection with any Claim which falls within this Policy, provided that the total amount payable in respect of damages and Defence Costs shall not exceed the Limit of Liability as stated in the Policy Declaration. IT IS FURTHER provided that Insurer shall not be obligated to pay any Claim, judgment, award, Defence Costs, or to undertake or continue the defence of any suit or proceeding after the Limit of Liability has been exhausted by payment or agreement to pay any Claim, judgment, award, settlement, and Defence Costs, or after deposit of the applicable Limit of Liability in a court of competent jurisdiction, and that in such a case the Insurer shall have the right to withdraw from the further defence thereof by tendering control of said defence to the Insured subject however to any reinstatement conditions which may be endorsed to this Policy. PROVIDED ALWAYS THAT: such Professional Liability results in a Claim being first made against the Insured during the Policy Period as stated in the Policy Declaration and of which notice has been given in accordance with General Condition 2. there shall be no indemnity hereunder for any Claim made against the Insured for Professional Liability committed prior to the Retroactive Date specified in the Policy Declaration. i. The expression "the Insured" shall be deemed to mean: DEFINITIONS (c) the individual, partnership, corporation, institution or such other entity (named in the Policy Declaration) which has legal capacity any person who is, has been or may become during the period specified in the Policy Declaration, a principal, partner, director, a member of any ethics committee, employee or volunteer of the Insured named in the Policy Declaration but only in respect of Claims arising from work undertaken on behalf of the Insured the personal representatives of the estate of any person who would otherwise be indemnified under this Policy. ii. iii. iv. The expression "Good Samaritan Act" shall mean treatment administered at the scene of a medical emergency, accident or disaster by the Insured who is present either by chance, or in response to a S.O.S. call following a disaster. The expression "Claim" shall mean any event or series of events arising from one originating cause and for which the Insured is required to give notice to the Insurer in accordance with General Condition 2. The expression "Defence Costs" shall mean, that subject always to the Limit of Liability in the Policy Declaration, the Insurers will pay all reasonable legal costs and expenses incurred by the Insured with the Insurers prior consent; 2 SISL LSW 228a Amended CMP Wording

3 in the investigation, defence or settlement of and/or as a result of representation at any inquest or other proceedings in respect of matters which have a direct relevance to; v. The expression "Products" shall mean any solid, liquid or gaseous substance or component part thereof. vi. vii. viii. ix. The expression Damages means only compensatory amounts and shall not include fines or penalties imposed by law or otherwise nor the return of or restitution of fees or charges for professional services rendered, nor is there any coverage for punitive, exemplary or aggravated damages, nor for any claim seeking non-pecuniary or injunctive relief. The expression Policy Period means the period of time stated in the Policy Declaration or any lessor period in the event of cancellation of this policy and specifically excludes an Extended Reporting Period hereunder The expression Retroactive Date means coverage afforded by this policy applies on the basis of claims which are first made against the insured during the policy period provided that such claim arises out of an act, error, omission or breach of duty committed or alleged to have been committed on or after the retroactive date stated in the Policy Declaration. Except where the context otherwise requires, words denoting the singular include the plural and vice versa; words denoting any gender include all genders. EXCLUSIONS The Insurer shall not be liable for: i. any Claim arising out of any Professional Liability occurring prior to the inception date of this Policy if the Insured on such date knew or could have reasonably foreseen that such Professional Liability might be expected to be the basis of a Claim. ii. iii. iv. any Claim which is the subject of Insurance, Indemnity or Assistance provided by any Medical Defence Organization (e.g. Canadian Medical Protective Association). This Policy shall not be drawn into contribution thereto. any Claim arising from any circumstance or occurrence which has been notified to an Insurer or Medical Defense Organization (e.g. Canadian Medical Protective Association) prior to the inception of this Policy. any Claim arising from public liability which will be deemed to include any bodily injury, mental injury, illness, disease or death to any person or loss of or damage to tangible property of any person that would otherwise be covered under a General Liability insurance in place at the time of the loss. v. any Claim arising from actual or attempted sexual relations, sexual contact or intimacy, sexual harassment of sexual exploitation whether under the guise of treatment or not, or in the course of treatment or not. vi. vii. viii. ix. any Claim made upon the Insured for work carried out by the Insured (for and in the name of any other company or association formed of which the Insured forms part for the purpose of undertaking any joint venture) UNLESS the Insurers agreement has been obtained and the inclusion of such work endorsed upon this Policy with the acceptance of such other Terms and Conditions as may be imposed. any judgement, award or settlement made within countries which operate under the laws of the United States of America, unless the Insured has requested that there shall be no such limitation and has accepted the offer by Insurers in granting such cover which offer and acceptance must be signified by specific endorsement (including any reinstatement provision) to this Policy. any Claim arising out of a specific liability assumed by the Insured under contract (which goes beyond the duty to use such skill and care as is usual in the exercise of the Insured's activities stated in the Application Form) UNLESS the Insurers prior agreement has been obtained and such specific liability is endorsed upon the Policy with the acceptance of such other Terms and Conditions as may be imposed. any Claim arising out of the manufacture of any Products, or the construction, alteration, repackaging, repair, servicing, or treating of any Products sold, supplied or distributed by the Insured, or any Claim arising out of the failure of any product to fulfil the purpose for which it was designed, or to perform as specified, warranted or guaranteed. 3 Professional Liability Wordings

4 x. any Claim arising from Hepatitis Non A or any condition directly or indirectly caused by, or associated with, the human immunodeficiency syndrome (HIV) initially named as either HTLV 111 or LAV or mutants, derivatives or variations thereof or in any way related to Acquired Immune Deficiency Syndrome (AIDS) or (AIDS) related complex (ARC) or any syndrome or condition of a similar kind howsoever it may be named. xi. xii. xiii. any Claim made against any Director or Officer or Employee of the Insured arising from any unlawful or negligent act, error or omission, actual or alleged breach of trust, breach of warranty of authority, or breach of duty committed or attempted by such Director or Officer or Employee where such Claim is made solely by reason of his holding the position of Director or Officer or Employee and having acted in that capacity. any Claim by any person for bodily injury, mental injury, disease or death incurred, contracted or occurring while under a contract of service or apprenticeship with the Insured, or for any breach of any obligation owed by the Insured as an employer to any employee, or any Claim in respect of which compensation is available under any Workers' Compensation Scheme and or similar legislation. However, this Exclusion shall not apply to any Claim arising out of any bodily injury, mental injury or death of an employee which is caused by any negligent act, error or omission of an Insured, where the employee is a patient of the Insured. any Claim directly or indirectly caused by or contributed to by: (c) any act in violation of any law or ordinance any dishonest, fraudulent or criminal act of the Insured the performance of the activities of the Insured whilst under the influence of intoxicants or narcotics xiv. any Claim directly or indirectly caused by, or contributed to by, or arising from ionising radiations or contamination by radioactivity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel or from the radioactive, toxic, explosive or other hazardous properties of any explosive nuclear assembly or nuclear component thereof. xv. xvi. any Claim arising from war, invasion, acts of foreign enemies, hostilities (whether war be declared or not) civil war, rebellion, revolution, insurrection, military or usurped power or confiscation or nationalisation or requisition or destruction of or damage to property by, or under the order of, any government or public or local authority. any Claim arising from: personal injury or bodily injury or loss of or damage to, or loss of the use of property directly or indirectly caused by seepage, subsidence, pollution or contamination the cost of removing, nullifying or cleaning-up seeping, polluting or contaminating substances xvii. xviii. any fines, penalties, punitive or exemplary damages. the Deductible stated in the Policy Declaration. GENERAL CONDITIONS General Conditions 1, 2, 3, and 4 are Conditions precedent to the right of the Insured to be defended or indemnified under this Policy: It is understood and agreed that: 1. all statements, particulars and documents referred to or contained in the Application Form attached are true, and during the Policy Period the Insured shall give as soon as practicable notice in writing of any alteration which materially affects the risk. 2. During the Policy Period the Insured shall give as soon as practicable notice in writing to the Insurer or their authorized Broker or Agent named herein of: any Claim for Professional Liability or alleged Professional Liability made against the Insured; or the receipt of notice from any person of an intention to hold the Insured responsible for any Professional Liability; or 4 Professional Liability Wordings

5 (c) any conduct or circumstance which is likely to give rise to a Claim for Professional Liability being made against the Insured. 3. The Insured shall at all times: a. maintain accurate descriptive records of all professional services and equipment used in procedures which shall be available for inspection and use by the Insurer or their duly appointed representatives insofar as they pertain to any Claim hereunder, and b. retain such records shall be retained in accordance with individual Provincial Regulations governing the retention of patient and medical records. c. give to the Insurer or their duly appointed representatives such information, assistance, signed statements or depositions as the Insurer may require, and d. assist in the defence of any Claim without charge to the Insurers. 4. The Insured shall not disclose to any person the terms of this Policy, no liability shall be admitted, no arrangement, offer, promise, or payment, shall be made or cost or expense incurred by the Insured without the written consent of the Insurer. The Insurer shall be entitled to take control of the defence of any Claim or to prosecute in the name of the Insured for their own benefit any Claim for indemnity or damages or otherwise against any third party and shall have full discretion in the conduct of any negotiations or proceedings on the settlement of any Claim. The Insurer will not settle any Claim without the consent of the Insured. However, if the Insured refuses to consent to any settlement recommended by the Insurer or their legal representatives and elects to contest or continue any legal proceedings then the liability of the Insurer shall not exceed the amount for which the Claim could have been so settled plus the costs and expenses incurred with their consent up to the date of such refusal, which in any event will not exceed the Limits of Indemnity as specified in the Policy Declaration and the Insured agrees to indemnify the Insurer for the amount of any judgment, award, settlement and Defence Costs which the Insurer are found obligated to pay after the date of such refusal. 5. This policy may be cancelled on the following basis: a. Insurers may cancel this Insurance by giving sixty (60) calendar days notice or fifteen (15) calendar days notice if the policy is being cancelled for non-payment of premium. Such notice shall be given in writing and may be serviced by registered mail, facsimile transmission or electronic mail, or may be hand delivered to the address of the Insured as stated in the Policy Declaration. Any notice sent by registered mail shall be deemed to have been served seven (7) calendar days after dispatch and any notice sent by facsimile or electronic mail shall be deemed to have been served at the time of dispatch. If any premium is due to the Insured that portion of the premium shall be computed pro-rata. b. This policy may be cancelled by the Insured by surrender thereof to the Insurer or any of its authorized agents, or by providing written notice to the Insurer stating when thereafter cancellation shall be effective. If any premium is due to the Insured that portion of the premium shall be computed on a short rate basis. 6. Automatic Extended Reporting Period In the event of cancellation or non-renewal of this Policy by the Insurer for any reason, other than non-payment of premium, the Insured shall be entitled to an Automatic Extended Reporting period pursuant to which the Insured shall have a period of sixty (60) days from the effective date of such cancellation or non-renewal to give written notice to the insurer of any claim which is first made during such Policy Period, and arises out of a Wrongful Act committed on or after the Retroactive Date but prior to the end of the Policy Period. The Automatic Extended Reporting Period in this subsection shall automatically apply after the effective date of such cancellation or non-renewal by the Insurer. Provided, however, that any Automatic Extended Reporting Period under this subsection shall not go into effect unless and until the premium for this Policy is paid in full and shall only apply in respect of an Claim for which no other insurance, either primary or excess, is available. Once in effect, the Automatic Extended Reporting Period granted under this subsection may not be cancelled and the entire premium for this policy becomes fully earned. The quotation by or on behalf of the Insurer of a different premium, deductible amount, limit of liability or policy terms or conditions for renewal shall not constitute a cancellation or non-renewal. 5 Professional Liability Wordings

6 7. Optional Extended Reporting Period In the event that Insurers do not offer terms at renewal, the Insured shown in the Policy Declaration shall have the right, upon payment in full and not proportionally or otherwise in part of 140% of the Expiring Annual Premium set forth in the Policy Declaration to have issued an endorsement providing a 24 month Extended Reporting Period for Claims first made against any Insured and reported to the Insurers during the Extended Reporting Period. "Extended Reporting Period" means the 24 month period of time after the end of the Policy Period for reporting Claims arising out of acts, errors or omissions which take place prior to the end of the Policy Period and otherwise covered by this Insurance. In order for the Insured to invoke the Extended Reporting Period option, the payment of the premium for the Extended Reporting Period must be paid to Insurers within 30 days of the non-renewal. The Limit of Liability for the Extended Reporting Period shall be part of, and not in addition to, the Limit of Liability of the Insurers for the Policy Period. The quotation by Insurers of a different premium or deductible or Limits of Liability or changes in policy language for the purpose of renewal shall not constitute a refusal to renew by the Insurers. The right to the Extended Reporting Period shall not be available to the Insured where non-renewal by the Insurers is due to non-payment of premium or failure of an Insured to pay such amounts in excess of the applicable Limit of Liability or within the amount of the applicable Deductible. All notices and premium payments with respect to the Extended Reporting option shall be directed to Insurers via the Broker or Agent named herein. At the commencement of the Extended Reporting Period the entire premium shall be deemed earned, and in the event the Insured terminates the Extended Reporting Period for any reason prior to its natural expiration, Insurers will not be liable to return any premium paid for the Extended Reporting Period. 8. The insurance provided by this policy shall apply excess of the Deductible stated in the Policy Declaration and excess of any other valid and collectible insurance available to the Insured whether such other insurance is stated to be primary, contributory, excess, contingent or otherwise, unless such insurance is written only as a specific excess insurance policy over the Limit of Liability of this policy 9. The policy applies to Wrongful Acts committed anywhere in the world, subject to Exclusion (vi). Provided, however, that the claim must be made against the Insured in a court of competent jurisdiction in any province or territory of Canada. 10. The Insurer or any of its authorised agents shall be notified immediately in writing by the Insured upon the suspension or revocation of, or imposition of any limitations on, any certificate or license held by any Insured for the purpose of providing healthcare services as referenced in the application for insurance. 11. All Limits of Liability, premium and other amounts as expressed in this policy are in Canadian Currency, unless expressly indicated otherwise. 12. Any dispute concerning the interpretation of the Terms, Conditions, Limitations and or Exclusions contained herein is understood and agreed by both the Insured and Insurers to be subject to the laws of Canada. Each party agrees to submit to the jurisdiction of any court of competent jurisdiction within Canada and to comply with all requirements necessary to give such court jurisdiction. All matters arising hereunder shall be determined in accordance with the laws and practice of such court. 13. It is hereby understood and agreed that it is a Condition precedent to the right of the Insured to be defended or indemnified under this Policy that the Insured shall ensure and record that throughout the Policy Period; all Medical Practitioners (Medical Doctors) maintain a license approved by the Government Medical and Health Department or other applicable licensing and registration body and such Practitioners maintain membership of a Medical Defence Organisation (e.g. Canadian Medical Protective Association) and that the category of such membership is applicable to all services offered or provided to the Insured, or are otherwise fully insured for their own Professional Liability, professional errors, omissions or negligence. 6 Professional Liability Wordings

7 14. It is hereby understood and agreed that it is a condition precedent to the right of the Insured to be defended and indemnified by the Insurers of this policy that any tool or implement used or intended for use in the performance of the Insured s professional duties and which is intended to be in contact with bodily fluid (whether human or animal) or penetrate tissue (whether human or animal) shall be: 1. handled, used and stored in accordance with the manufacturers instructions, and 2. where approved by the manufacturers and by the Department of Health or equivalent to be used more than once, sterilised prior to such use: 3. using only sterilised apparatus specifically approved by the manufacturer and in accordance with instructions, recommendations or guidelines of such manufacturer. 15. It is hereby understood and agreed that it is a Condition precedent to the right of the Insured to be defended or indemnified under this policy that the Insured shall ensure and record that throughout the Policy Period; a) all regulated health care professionals maintain registration with the relevant province or territory regulatory authority and b) all third party employed regulated health care professionals (not employees of the Insured) offering or providing services to the Insured are fully Insured for their own Professional Liability, professional errors, omissions or negligence. 16. It is hereby understood and agreed that if the Insured shall make any claim knowing the same to be false or fraudulent, as regards amount or otherwise, this contract shall become void and all claim hereunder shall be forfeited. AUTHORIZED INSURER S REPRESENTATIVE Simmlands Insurance Services Ltd. 7 Professional Liability Wordings

8 SERVICE OF SUIT CLAUSE (CANADA) (Action against Insurer) In any action to enforce the obligations of the Insurers they can be designated or named as Lloyd s Underwriters and such designation shall be binding on the Insurers as if they had each been individually named as defendant. Service of such proceedings may validly be made upon the Attorney In Fact in Canada for Lloyd s Underwriters, whose address for such service is 1155, rue Metcalfe, Suite 2220, Montreal, Quebec, H3B 2V6. LMA /08/06 Form approved by Lloyd s Market Association 8 SISL LSW 228a Amended CMP Wording

9 LLOYD S UNDERWRITERS CODE OF CONSUMER RIGHTS & RESPONSIBILITIES Lloyd s Underwriters are committed to safeguarding your rights when you shop for insurance and when you submit a claim following a loss. Your rights include the right to be informed fully, to be treated fairly, to timely complaint resolution, and to privacy. These rights are grounded in the contract between you and your underwriters and the insurance laws of your province/territory. With rights, however, come responsibilities including, for example, the expectation that you will provide complete and accurate information to the underwriters with whom insurance is being negotiated. Your Insurance outlines other important responsibilities. Underwriters and intermediaries acting on your behalf, and governments also have important roles to play in ensuring that your rights are protected. Right to Be Informed In dealing with Lloyd s Underwriters, you will be represented by an intermediary, such as a broker acting as your agent, and they may deal with other intermediaries. From the intermediary with whom you deal, you can expect to access clear information about your policy, your coverage, and the claims settlement process. You have the right to an easy-to-understand explanation of how insurance works and how it will meet your needs. You also have a right to know how premiums are calculated based on relevant facts. A policy issued by Lloyd s Underwriters will expire on the day specified in the policy. If you wish to renew the policy, the intermediary with whom you deal will have to approach the Underwriters participating in it, often through another intermediary. If Lloyd s Underwriters are given the information they require to determine renewal terms for the policy at least forty-five (45) days prior to its expiry, under normal circumstances, they will advise the intermediary who approaches them of any changes to the policy terms at least thirty (30) days prior to the expiration of the policy. Terms may subsequently change if there is a change in material facts prior to the expiration date. Intermediaries may receive payments from Lloyd s Underwriters in a variety of ways, which may include the payment of commissions. Lloyd's strongly supports the disclosure and transparency of these commission arrangements. You have the right to ask the intermediary with whom you deal for details of how and by whom the intermediary is being paid. Lloyd's Underwriters accept business as members of syndicates each of which is managed by a 'managing agent'. Lloyd's has risk management procedures in place in respect of the relationship between Lloyd's managing agents and any related companies that act as intermediaries. This is to ensure that the managing agent makes proper disclosures of any such arrangements. A policyholder may ask the intermediary whom he is dealing to disclose if it is a related company to a Lloyd's managing agent. Responsibility to Ask Questions and Share Information To safeguard your right to purchase appropriate coverage at a competitive price, you should ask questions about your policy so that you understand what it covers and what your obligations are under it. You can access information through brochures and websites, as well as through one-on-one meetings with the intermediary with whom you deal. You have the option to shop the marketplace for the combination of coverages and service levels that best suits your insurance needs. To maintain your protection against loss, you must promptly inform your underwriters of any change in your circumstances through the intermediary with whom you deal. The Underwriters with whom renewal is being negotiated must be given information required to determine renewal terms of your policy, via the intermediary whom you are dealing with, at least forty-five (45) days prior to the expiration of the policy. Right to Complaint Resolution Lloyd s Underwriters are committed to high standards of customer service. If you have a complaint about the service you have received, you have a right to access the Lloyd s complaint resolution process for Canada. The intermediary with whom you deal can provide you with information about how you can ensure that your complaint is heard and promptly handled. Disputes involving claims settlement matters may be handled by the independent General Insurance OmbudService where your complaint may be referred to an independent mediator. Responsibility to Resolve Disputes You should always enter into the dispute resolution process in good faith, provide required information in a timely manner, and remain open to recommendations made by independent observers as part of that process. Right to Professional Service You have the right to deal with insurance professionals who exhibit a high ethical standard, which includes acting with honesty, integrity, fairness and skill. Brokers and agents must exhibit extensive knowledge of the product, its coverages and its limitations in order to best serve you. Right to Privacy Because it is important for you to disclose any and all information required by underwriters with whom insurance is being negotiated on your behalf to provide the insurance coverage that best suits you, you have the right to know from the intermediary with whom you deal the purposes for which Lloyd s Underwriters will use your personal information. This information will not be disclosed to anyone except as permitted by law. You should know that Lloyd s Underwriters are subject to Canada s privacy laws with respect to their business in Canada. 03/06 - LSW Professional Liability Wordings

10 NOTICE CONCERNING PERSONAL INFORMATION By purchasing insurance from Simmlands Insurance Services Ltd. (Simmlands) through Lloyd s of London (Lloyd s), a customer provides Simmlands with his or her consent to the collection, use and disclosure of personal information, including that previously collected, for the following purposes: the communication with Lloyd s underwriters; the underwriting of policies; the evaluation of claims; the detection and prevention of fraud; the analysis of business results; purposes required or authorized by law. For the purposes identified above, personal information may be disclosed to Simmlands and Lloyd s related or affiliated companies and service providers. Further information about Simmlands personal information protection policy may be obtained by contacting their privacy officer. 10 SISL LSW 228a Amended CMP Wording