E&O Prevention
Strategies for the Professional Agent
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May 2009
Compliments of www.AgentsofAmerica.org

  • Sheri Pontolillo
  • Dorene Taylor
  • Raymond Wahl
  • Britton D. Weimer, J.D.
  • Daniel B. Price
  • Robert Stuberg
  • Andrew Whitman, Ph.D., J.D., CPCU
  • Michael Mercer, Ph.D.
  • Mark Hunter
  • Martin Zalevsky
  • Joseph Starr, J.D.
  • Marcia J. Sartori
  • Michael Mercer, Ph.D.
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    From the Editor's Desk...

    In addition to many fine RM tips and articles from our contributors, this issue adds a new feature to the end: a joke of the month from Dr. Michael Mercer. Skip to the end if you need a good laugh!

    Britton Weimer

    Systemic Risk - A Hard Look
    By Sheri Pontolillo, ARM

    Since the market's recent crash, this is a phrase that has been tossed about quite a bit. What is the systemic risk? Who is responsible for not mitigating the risk? Why didn't they? In short, "Who is to blame?"

    Let's start by defining the term. In finance, it is defined as a "risk which is common to an entire market and not to any individual entity or component thereof."

    If we take a look at the markets going back more than a decade now, dare we admit that the risk originates purely within ourselves? Our human nature? This insurance geek, an E&O broker, finds that it has been human nature that lies at the core of nearly every group of events that created a spike in E&O claims.

    Call it greed. Lack of ethics. Moral decay. Simply not caring. Whatever you choose. Look back at the tech bubble burst. It was greed on the part of investors not wanting to miss the opportunity to "get rich quick" and an exuberant market trading, at the end, on not much more than momentum. At almost every level, a lack of truthfulness exists. Corporate America, at a very high boardroom level, has adopted an attitude of "if everybody's doing it, it must be ok" when it comes to accounting practices. Think back to the Enron and Arthur Anderson scandals. More recently, phony reinsurance deals were used to prop up the books of the largest, most respected insurance companies. A lie wrapped up in a blanket called an accounting strategy is still a lie. Looking at a tragedy that has had global ramifications, who thought it would be right to create millions of subprime mortgages based on absolutely no underwriting criteria, slice and dice them into securities and sell them to the world who assumed the American investments would perform as mortgage-backed securities had for past decades? Apparently, many people. Who told investors any differently?

    Not all thievery is as blatant as, unfortunately, some we see on a daily basis. For example, cases where a trusted financial advisor has put at great risk every nickel a hard-working elder has saved for retirement, or worse, has stolen the nest egg outright. Anyone reading this article would most certainly say they are not part of the unethical crowd. But how many wildly popular products were sold the same way to large numbers of investors with the same result being E&O claims? To name a few, vanishing premium policies, variable annuities, promissory notes and viaticals. How many "Top Producers" end up on the podium accepting an award for sales practices that result in E&O claims?

    The analysis reveals that what is "common" about the risk, harkening back to the definition, is us. The true systemic risk is that we all probably share in some part in the creation of the risk. We must be careful to not assume that because "everybody's doing it, it must be right" The systemic risk has been, in large part, a failing of Corporate America, regulators, financial professionals and the consumers to "do the right thing." We can, and should, do better.

    Sheri Pontolillo is CEO of E&O Pros (E&O Professional Risk Management & Insurance Services LLC), a national brokerage in Laguna Hills, CA that sells and administers group and individual E&O programs. She has specialized in E&O insurance for 23 years, including life insurance and P&C insurance agents, and is the author of numerous industry articles, seminars and continuing education programs.

    Branding Basics
    By Dorene Taylor

    What is Branding?

    The American Marketing Association defines a brand as a "name, term, sign, symbol or design, or a combination of them intended to identify the goods and services of one seller or group of sellers and to differentiate them from those of other sellers."

    Your brand is more than a logo and company name - it's the way your customers and prospects identify your business, products, services, and their impression of your organization. Solid branding confirms your credibility, creates recognition, positions your organization ahead of the competition, reinforces your reputation, and builds customer loyalty.

    A brand consists of numerous elements, all of which join together to create consumers' impression of your organization. Brand elements include:

    Visual Qualities Perceptual Qualities
    Logo, Signature Colors, Tagline Quality, Presence, Reputation, Benefits, Pricing, Value, Character

    Why is Branding Important?

    Your brand creates an awareness of your organization and helps consumers understand the distinctive qualities which make you better than your competition. Advertising clutter and seemly endless choices offered in every product and service industry make standing out from the competition more important than ever. In an economy where we're all fighting for limited consumer dollars, standing head and shoulders above the rest of the crowd is your best growth strategy.

    Taking Care of Your Brand

    Regularly review your brand to ensure it is doing the most for your organization. Invite key personnel in your organization to sit down for a brand strategy session. Use this opportunity to review and discuss the following: Does your logo appeal to your target audience? Does it project a feeling of quality, value, and superiority to your competitors?

    • Do your marketing materials reflect the level of quality of products and services you offer and the quality of your organization?

    • Does your organization take every opportunity to can to place your brand in front of existing and potential clients?

    Take stock of how your brand is perceived and set a corrective course if your brand is not doing everything for you that it could be.

    Dorene Taylor is the owner of Digital Fusion Group. Ms. Taylor has been working with both private and public sector clients since 1988 to create powerful communications and marketing tools for their organizations. Ms. Taylor applies a unique combination of program management, marketing, and technical skills to produce materials accurately reflecting her clients' vision. Her professional experience spans both traditional and new media methods for delivering marketing messages with clear and compelling value propositions.

    E&O Coverage Tip: Underwriting Considerations
    By Raymond Wahl

    As a follow-up to my last tip on completing your own E&O application, I thought it might be helpful to list for you some of the things that an underwriter may consider in evaluating your professional liability risk. While different underwriters may consider different factors and with varying degrees of importance, some of the more common underwriting considerations are listed below:

    • Experience - how long has your agency been in existence? If new, how much prior agency experience do you have?

    • Location - what state and county are you located in? Some areas are much more litigious than others.

    • Business Mix - what lines of business do you write? In what industries? Are you a generalist or a specialist? I've heard all the arguments for and against both.

    • Services - do you provide ancillary services such as premium financing, TPA/claims administration, etc?

    • Size - how large is your operation? Revenue is typically compared to staff size. Do the limits and deductible make sense in relation to your size?

    • Carriers - with what insurers do you place most of your clients?

    • Claims - have you had any claims frequency or severity?

    • Procedures - do you have adequate office procedures in place?

    An experienced underwriter will use the above factors and others to develop a mental picture of your operation and the level of risk you pose. The better the information you provide, the more comfortable the underwriter can get, and the more likely it becomes that you'll get a favorable response.

    Raymond Wahl has been an insurance underwriter for over 38 years. He specializes in professional liability, including in insurance agents and brokers E&O. He is a past president and trustee of PLUS.

    Keys to Avoiding E&O Claims: Care in Advertising
    By Britton D. Weimer, J.D.

    As previously noted, E&O litigation is an upside-down world. To expand your business, you would like to advertise yourself as an insurance "counselor" or "advisor" or "professional." However, those are the very sorts of words that make it very difficult to defend an E&O claim. They are ammunition for the insured, who will claim you have undertaken an affirmative duty to advise and to recommend all necessary coverages.

    Ordinarily, an insurance agent's only duty is to carefully follow the customer's coverage instructions. There is no duty to volunteer insurance advice, or to recommend "necessary" coverages.

    However, through your words and actions, you can voluntarily expand your duty. You can voluntarily undertake a broader role - the duty of an insurance advisor. While that sounds good from a business perspective... it is deadly from a legal perspective. Once you are in the legal camp of an "advisor," you essentially have a perpetual duty to know your customer's insurance needs inside out, and to recommend all beneficial insurance options. That is an impossible standard to consistently meet.

    If you are in the legal category of an "insurance advisor" and you are sued, you will almost certainly lose. The reason: the impetus for the lawsuit is some uncovered loss. The insured will claim that he/she would have purchased that coverage, had you only fulfilled your duty to advise and recommended that coverage. Even if you did verbally recommend the coverage, the insured will not remember that conversation, and you will be in a trial where your credibility is at issue. Since juries do not like to see people suffering an uninsured loss, they will often find against the agent.

    So the bottom line is that you do not want to be in the legal category of an insurance advisor. So, from a legal perspective, you want to eliminate any representations or promises that you will recommend the "right" coverages. In particular written promises, which you can never avoid at trial! In short:

    "Do not advertise yourself as an insurance 'counselor' or 'advisor' or 'professional' or similar words suggesting an active duty to investigate a customer's insurance exposures."
    This avoids the difficult-to-defend claim that you understood a perpetual duty to identify all the insured's coverage "needs."

    Britton Weimer is an insurance-defense attorney in Minneapolis, and has defended insurance agents and brokers in E&O litigation for over 20 years. He is the co-author of the new Thomson-West treatise, The Law of Commercial Insurance Agents and Brokers.

    Preliminary Guiding Rules for Sellers (Part 3)
    By Daniel B. Price

    Last month we continued our discussion of our top ten rules for sellers of insurance agencies. Over the last two months we have covered: 1. Seek Professional Guidance, 2. Commit to the Process, 3. Understand the Value of Your Agency, 4. Be Proactive, 5. Present Your Agency Properly, and 6. Understand the Details. This month we wrap up our top rules for sellers with 7. Define Negotiation Parameters, 8. Get Your House in Order, 9. Don't Overlook Reverse Due Diligence, and 10. Be Ready for the Long Haul.

    7. Define Negotiation Parameters. Rely on your financial advisor to lead your negotiations. This is particularly important in the early stages of the letter of intent or term sheet. If you follow the "wish, want and walk" theory of negotiating (see the Published Articles section of the Hales & Company website (www.halesgroup.com) for a detailed article on the "wish, want and walk" theory of negotiating), you will be provided with a much smoother process and you will remove most of the emotion that is attached to selling your agency. Too often agency owners either try to negotiate themselves or, worse yet, turn the negotiation over to their attorney far too early. Deal negotiation is a skill not easily learned. Rely on your financial advisor to lead you through the negotiation process and tell you when to bring in your attorney.

    8. Get Your House in Order. You have signed the letter of intent and you let out a big sigh; the hard work is done! Well, not quite. Now comes the real fun part: due diligence. If your advisor has done his job properly, you have already gotten your house in order for this stage (see article: Don't Expect Top Dollar if Your House is in Chaos published in the May 4th edition of Insurance Journal). At this stage the buyer's team will review carrier contracts, financial records, IT, employment files, production reports, etc. They will want to validate your pro forma adjustments. They will verify that you actually own your book of business and that it is not subject to rights of ownership by your producers or sub-producers. The bottom line: to ensure a successful due-diligence process so that the financial terms and structure do not get changed from your initial agreement, you need to have your house in order.

    9. Don't Overlook Reverse Due Diligence. Due diligence is a two way street. You must perform your own reverse due diligence on the buyer. It is essential that you believe that the buyer's operating model and culture is conducive to you and your agency's culture. Your due diligence should include a site visit to the buyer's headquarters, meeting with management and key employees and discussing the buyer's plan of integration. Probably the most important step at this stage is to talk to other agency owners who have sold to the acquirer. Talk to shareholders and some of their key employees and learn firsthand what the culture is like, how integration went and what changes took place. In the end, understand that change is coming. Change can be good, but only if you and your team are prepared for change.

    10. Be Ready for the Long Haul. Recognize upfront that the selling process is not quick. It is not unusual for a transaction to take nine to 12 months from start to finish. If you are not mentally and emotionally ready for the long haul, your odds of completing the transaction are greatly reduced. During this time you still need to manage your agency for growth and profitability. While this sounds easy, it is not. There are no shortcuts in the selling process. Shortcuts can only result in bad things happening! Be ready for the long haul.

    When these ten seemingly simple rules for selling an agency are followed the chances of consummating a transaction that is ultimately deemed a long-term success are greatly increased. Most agency owners sell their business only once so it is critically important that the sale be done "right"; hiring an experienced advisor who has been through the process many times over will pay exponential dividends and is an essential component of the selling process.

    Daniel B. Price is Vice President of Hales & Company, Inc.

    Have you noticed how challenging things seem these days?
    By Robert Stuberg

    We have an economy that is less than stable, and recently we have been seeing wild fluctuations in the stock market with the value of the dollar plunging internationally. Within our own borders, we've seen some plummeting real estate values, and a mortgage situation that's currently being described as a national crisis. Along with this we have rising oil prices with seemly no end in sight. And yet there's more, lot's more. We seem to be facing a never-ending series of problems in the Middle East, and the threats of terrorism that manifested themselves on 9/11 don't seem to be going away or getting any better. So it's not just challenges in the world of economics. There seem to be challenges everywhere you look.

    There are plenty of political and social challenges fighting for our attention but that's still just scratching the surface. How about the many environmental issues we hear about on an almost daily basis? Scientists are continuing to make dire predictions about things such as Global Warming and other environmental issues that could lead to serious consequences. And regardless of your position on these issues, we would all have to admit that we are adding more pollution to the planet than the world has ever seen. The size and scope of some of these problems are enormous. Surely, there is someone coming to the rescue, yes? We are right in the middle of one of the most interesting presidential elections we have seen in modern times but can we really count on any of the candidates to fix these and other problems or will they just create more problems as we've so often seen in the past?

    So what do you do about all of this? Even if these challenges don't get your attention, I'm willing to bet that you have any number of personal obstacles standing between you and your goals. You are undoubtedly engaged in the process of making your life better and that always involves a long list of challenges.

    So the question is how do you handle challenges?

    Is it time to crawl under the blanket and just wish the problems would go away? You already know my answer.

    Basically, there are only two choices. One is to get discouraged by the mountain of problems that face us and allow our confidence to wane. This is never the right choice. This will cause us to shrink, not grow.

    The other option is to approach the future with unshakable confidence and the belief that we will find solutions. You might not know what the solutions are but you can believe that they are there.

    Isn't it interesting that we always find a way? Think back to past problems you have overcome personally. If you are honest with yourself, you have to admit that you've triumphed over some onerous obstacles. You've overcome many major challenges in your life. Isn't that true? And haven't we always found a way through difficult times both nationally and internationally even in the face of what seemed like insurmountable challenges? One of the best ways to build confidence for the future is to think about the problems we've already faced and overcome in the past. We've triumphed before, and we can triumph again.

    The fact of the matter is that our world has been in peril for a long time. Some would even say it's always been in peril but maybe it is more intense these days. Let's face it, we have the power to blow ourselves up with the push of a few buttons. That hasn't always been the case on planet earth. What's worse is that we have many people on the planet who actually believe that pushing a few of those buttons would be a good idea. If that's not a challenge then I don't know what is.

    But here's a way to keep your confidence level high in the face of such challenges. Think about the fact that we've overcome difficulties before and we can do it again. I sometimes say to my clients that the bigger the problem, the bigger than hero that's needed. I think we all have the power to be heroes, and I believe that winning at the game of life requires being heroic. I think a hero is someone who is willing to face a challenge head on with unstoppable confidence. It doesn't mean you blindly charge ahead without a plan and some honest concern. It just means that you don't let a challenge stop you. It always seems easier to back away from a challenge but deep down we all know that's not the case. It is only by stepping into the unknown with courage and conviction that we grow and become more. You have to get out of your comfort zone to grow.

    So when you hear all of the bad news about the world falling apart or you think about your own personal challenges and problems, think about this: We are bigger than anything that could ever happen to us. We have the power and ability to overcome the challenges that might try to block us from our destiny. Sure, I can't prove to you that those statements are true, but I choose to believe them. In fact, I think it takes a great deal of confidence in the future to believe them. But after all, confidence is the single greatest skill that we can foster and develop. So enjoy the present with the unshakeable conviction that the future can be better than the past if we have the confidence to make it that way.

    Robert Stuberg is one of the world's leading authorities on personal and professional success. He is most widely recognized for his role as Founder and Chairman of Success.com, the premier source for personal and professional development products and services worldwide. Robert is an internationally acclaimed author, speaker, coach, entrepreneur, and consultant.

    Affirmatively Manage the E & O Exposure:
    Recognizing Conflicting Interests of the E & O Carrier and Defense Counsel
    By Andrew Whitman, Ph.D., J.D., CPCU

    There are conflicts of interest and disclosure restrictions among the Agency, the E & O carrier the E &O defense counsel and other parties involved in the claim. This article explains why agency management must have experienced senior members trained in methods of dealing with E & O litigation to affirmatively guard the interests of the Agency.

    Ethical Obligations of E & O Counsel:

    Who is the E & O defense counsel's client? It's now settled that defense counsel's client is the insured agency, but the E & O defense counsel is selected by and paid by the E & O carrier. The coverage under the E & O policy for the duty to defend is broader than obligation to pay third party claimants, but defense costs are applied to policy limits. In addition the E & O carrier has the right to defend and settle claims upon consent of the carrier and the Agency. What is the scope of the carrier's and the defense counsel's obligation to communicate with the agency regarding the guidelines and process of settlement negotiations? The interests of the agency, the carrier and defense counsel potentially conflict. The cost/benefit evaluations are likely to be adverse to each other: the agency, the carrier and the defense counsel.

    Is the potentially catastrophic cost of to the agency of going to trial communicated and considered in the cost/benefit evaluation of settlement or are the carrier and defense counsel only explicitly recognizing the direct legal costs balanced against the strength of defenses and amount of a potential damage and its closeness to policy limits? At what point is the agency advised to obtain its own counsel?

    The stage:

    An E & O insurance carrier receives notice of a potential claim. The agency is following advice to give notice since it's a claims-made policy. The carrier acknowledges the notice. A compliant is tendered to the carrier within the policy period The carrier reviews the complaint for coverage and responds with a reservation of rights letter agreeing to provide defense, and reminds the insured that defense costs use-up policy limits.

    The carrier assigns the claim to local defense counsel according to the carrier's acceptable criteria: experience, proven track record, cost and decision compliance.

    E & 0 counsel's obligation to advise the Agency may not extend to issues of coverage under the E & O insurance policy. This potentially conflicts with the interests of the E & 0 carrier. Does this extend to knowledge about legal costs getting close to policy limit? And to agency expenses and income loss paid under the Supplementary Payments sections in addition to the applicable policy limit? When is the agency advised to retain independent counsel?

    Pre E & O Claim Risk Management:

    The agency is advised that most claims by insureds are filed after a carrier with whom the agency as placed business denies a large loss claim or agrees to pay less than the insured reasonably expected. Agency counsel advises the agency to implement SOPs to control the risk of the agencies being sued by the insured client and the risk that a carrier sues to be indemnified alleging the agency acted beyond its scope of authority. (See Chapter 1 of the ebook)

    All communications with high loss clients should be made under the supervision of a senior experienced agency member trained in risk control techniques. This includes any communication with the client's loss adjuster, damage mitigation company, contractor, supplier, and most significantly, any request to provided a recorded statement or letters to the insured's insurance company.

    Issues In Affirmatively Monitoring the E & O Claims Process

    Should agency counsel join or monitor the client's settlement process to protect agency interests, for example in Miller-Shugart settlement proposals between the insured and plaintiffs? Make sure any release includes all agency interests.

    When the E & O defense attorney has been assigned to the agency E & O claim the following questions/issues required attention:

    • When should the agency counsel or E&O defense counsel review with the insured agency the terms of the E & O policy?

    • When should agency counsel or E&O defense counsel review with the insured agency the terms of any settlement offers?

    • When should agency counsel or E&O defense counsel review with the insured agency the stages of negotiation including the carriers' SOPs and settlement guidelines?

    • When should the agency or its counsel be affirmatively involved in the claims process?

    • When should the E&O defense counsel and carriers consider the potentially catastrophic costs to the agency of not settling or the precedent setting potential of a published court decision? (See my AoA tip on risk managing the catastrophic costs).

    Clearly agency management must work with experienced consultants or counsel to properly protect agency interests against conflicting interest of others.

    Andrew Whitman, Ph.D., J.D., CPCU, has testified in court in ten states, served as Deputy Insurance Commissioner and Acting Chief Counsel in the Pennsylvania Insurance Department. He is the author/co-author of insurance articles and books, including co-author of the new Thomson-West treatise, The Law of Commercial Insurance Agents and Brokers.

    "Public Executions" + Pre-Employment Tests = Your Company Grows
    By Michael Mercer, Ph.D.

    Opportunity knocks. You want a workforce of only productive, responsible, dependable employees. Right?

    Problem = You have some (A) unproductive or underachieving employees, (B) irresponsible employees, plus (C) employees you cannot depend on.

    You Have Fantastic Opportunity = Hold "Public Executions" Now

    Yes, you read that right. I recommend you hold "public executions" at your company. I do not mean you "cancel" harm anyone physically. Do not hang anyone at dawn.

    Instead, de-employ employees who are any of the following:

    • unproductive or only average in productivity
    • irresponsible
    • undependable
    • trouble-maker - who harms other employees' productivity
    And here is how to de-employ scumbags - oops, I mean lousy employees: Hold a "public execution." By that, I mean make sure every employee in your company knows those lousy employees are being tossed out the door because they were (A) unproductive, (B) irresponsible, and (C) undependable.

    You could hold an all-employee meeting after your de-employ underachievers. Clearly explain your company
    A. values and adores employees who are productive, responsible, and dependable
    B. will 'throw out the door' anyone who is unproductive, irresponsible, and undependable

    End the meeting by saying all the survivors are appreciated - but do not give them any employment guarantees. Remaining at your company is based on being productive, responsible, and dependable. If any employees fall off the wagon, the management team will throw them off the wagon, that is, de-employ underachievers.

    Pre-Employment Tests to the Rescue

    Pre-employment tests give you the quickest and most accurate way to hire applicants likely to perform on-the-job like your company's high-achievers. How do pre-employment tests do that? Two ways.

    First, for "white-collar" jobs, you readily can custom-tailor behavior, personality and cognitive ability tests so you know benchmark scores of your best employees. Then, you may prefer applicants who get pre-employment test scores similar to your outstanding employees on behavior and mental ability pre-employment tests.

    Second, use a dependability pre-employment test for "blue-collar" jobs. You can prefer applicants whose pre-employment test scores forecast (a) honesty on test, (b) strong work ethic, (c) low impulsiveness - related to accidents and also interpersonal clashes, (d) low theft/stealing concerns, and (e) low substance abuse concerns.

    Also, do interviews, reference checks, and background checks, also. But, remember these common problems: (a) Research shows most interviewers are horribly bad at predicting job performance based on their interviews, (b) it is hard to obtain useful reference checks, and (c) background checks miss many problems.

    Pre-employment tests, in contrast, are research-based and can be custom-tailored to help you hire applicants with qualities similar to your company's "superstar" employees.

    COPYRIGHT 2009 MICHAEL MERCER, PH.D., www.MercerSystems.com. Dr. Michael Mercer is a nationally known expert on (a) pre-employment tests and (b) hiring the best. He is AoA's "Hiring Expert." Dr. Mercer created the 3 Forecaster TM Tests - pre-employment tests that many companies use to help them hire productive employees. NOTE: AoA members get a special discount when they use ForecasterTM Tests (find out more on AoA website's Hiring Expert section). The 5 books he wrote include Hire the Best - & Avoid the RestTM (in 13th printing).

    Close Too Quick and You Lose Profit
    By Mark Hunter

    It's always rewarding to close a sale and immediately have the new client sign the documents and bind a new policy. No matter how many years in the business, this always feels good. We've all got stories about new customers who have literally fallen into our lap. For some reason, we can't seem to forget the great rush that occurs from these new clients. I'm here to say that, as good as the rush might be when we allow a sale to occur too quickly, we wind up leaving money on the table.

    When beginning to talk with a new client, the agent and the customer invariably have the intent of doing so with a specific product in mind. It may be home owner's insurance, a life policy, or one of a number of other products we all sell; however, the initial interest expressed by the customer always guides our discussion. Once the discussion turns to a specific product, the customer's focus becomes even more closed to any interest regarding other products. The real danger comes when the customer agrees to buy and ultimately signs the document. At that moment, the customer feels the process is over, and their mind moves to something else that is usually unrelated to our business.

    For the agent, the challenge in a situation like this is to ask the necessary exploratory questions early on to determine what their other needs are and what products might be of interest to them. If you wait to begin exploring what the next product should be until after the first policy is bound, you'll always be behind. Exploratory questions should include open-ended ones that will get the customer talking. Questions may include asking the customer about their job and the types of benefits they receive in the job. By asking a question of this nature in an open, non-threatening manner, it is likely that the conversation will start with the customer sharing the value of their benefits and the important level of security they feel they either have or don't have in their job. When an agent can get the customer talking, and more importantly, talking about items they do not feel secure about, the greater the likelihood the agent will be able to assist in finding them an additional product. Whether in a face-to-face meeting or over the phone, the agent must take the time to engage the customer early on.

    The key with the early questions is to not come out and openly ask them about other types of insurance needs they may have too early in a sales call. Asking a new customer this type of a question before a relationship has been established runs the risk of alienating the prospect, due to the fact that they will view you as a "hard-sell agent", one they must be careful with. The key is to engage the customer in a non-threatening manner enabling you to gain this type of information without allowing the customer to throw up any defensive barriers. Finally, take your exploratory questions and break them down into short questions that can be used at any time. By keeping your exploratory questions short, you will gain additional insight. Customers are much more willing to share key information in short segments rather than long drawn out responses that more complicated questions dictate.

    Due to the wide number of issues the typical customer faces today, it is a privilege to be an agent in today's economy. When an agent is able to assist a customer with multiple products, the customer feels at ease, and the agent has truly done their job. Now more than ever, the professional agent is a key asset. There's not a valid reason why any customer should not have a solid relationship with a professional agent.

    Mark Hunter, "The Sales Hunter," is a sales expert who speaks to thousands each year on how to increase their sales profitability. Reprinting of this article is welcomed as long as the following is included: Mark Hunter, "The Sales Hunter", www.TheSalesHunter.com, 2009

    Guaranteed Appointments - The Holy Grail for Insurance Agents
    By Marvin Zalevsky

    Would you agree that selling is an agent's primary job? Sure it is. And, just how much time do you actually devote to your primary job? If you are like most agents, your answer is probably somewhere around 20%. And most agents would agree that 20% is not nearly enough time to spend on this critical activity. The obvious next question is - Where is the time that could be spent on your most important job (that other 80%) actually being spent? Preparing to sell (prospecting), administrative work and customer support, in addition to running your business and the million little things that pop up constantly. In this article, we will show you how you can take back some of that 80% by leaving the heavy-lifting part of the prospecting process to somebody else... and spending more of your time doing your most important job... SELLING!

    What is the End Game?

    When you think about being an agent, and you think about selling, what scenario comes to mind? Do you see yourself in front of an interested prospect discussing pertinent products that could fit their situation? Do you see the prospect looking at you with interested enthusiasm because your product is a solution to a nagging problem of theirs? OK... so your end game is to get in front of an interested prospect at the time that the prospect is ready to buy. But, how do you do that? What actual tactical methods did you use to put yourself in front of that prospect at a time when that prospect is most likely to be interested in your product? And, just as importantly, how much time did you spend doing that?

    Ever hear of ROIT (Return on Invested Time)?

    Let's go back to the beginning and follow the tactical trail to the end game described above. Step one for most agents is to take out a phone book (or find an online source) and start making calls. No particular order, just call and try to book an appointment. What would you think the chances are for this agent to actually book an appointment? How many calls do they need to make before just one prospect agrees to meet and discuss their product? The numbers are daunting... it takes a professional caller, using the latest tools and techniques available in the calling business, about 5 hours on average, to book a single appointment from a random, cold call. The ROIT for this activity seems rather small, but as we mentioned, this is only step 1 in the process... let's move on in the process and see if things improve.

    At this point in the process, the agent prepares for the appointment by researching the type of business, various product options, etc. And then the day of the appointment arrives, and the agent calls ahead to confirm. What do you think the chances are that the prospect will actually keep the appointment for the agreed-upon day/time? The odds are about fifty-fifty. This is why several appointments must be booked in the first part of the process, since it is a guarantee that there will be cancellations and reschedules. So, in order to guarantee an appointment, the agent will need to book at least two, and probably more like five, to be assured that one will come to fruition.

    Of course, the next part of the process is the sweet spot for most agents... SELLING! But even the best of the best agents don't close 100% of the time. On average, a good agent can close only about 33% of the time. So, two-thirds of all of the work done to book the appointment and insure that the prospect keeps the appointment at the scheduled day and time, is wasted. Let's run the numbers to illustrate...

    Booking the appointment - 1% success rate
    Keeping the appointment - 50% success rate
    Selling the prospect at the appointment - 33% success rate
    Overall success rate - 0.165% (about 1 in 1,000)
    Outsourcing and getting a guaranteed appointment - PRICELESS

    Don't Be a Do-It-Yourselfer

    Those odds seem a little lopsided. So, why would an agent choose to become a professional call center? Not sure. Maybe agents are under the impression that doing it themselves is the only way to get things done right. That makes sense. Most agents tend to be independent-spirits. The do-it-yourselfers of the world. Which is probably why they became agents in the first place. In addition, there is some real experience with organizations that claim to do most of the hard work in the process, but fail to deliver. And worse, they don't stand behind their product, so agents feel like they just have no choice but to do it themselves. Either personally or by hiring a producer to the prospecting. Selling is job 1, so it's got to get done. But, there are lots of reasons, in addition to the sheer odds stacked against the agent, to outsource this activity. It will be an adjustment, just like online banking. And yes, there is an opportunity to get burned by an unscrupulous vendor. But, you can limit your exposure by doing a little research into the firms that offer this service. In the next section, we'll show you how to make this research a lot simpler by looking for very specific competencies.

    Here's what to look for in an appointment setting service

    The critical core competencies of the service firms that offer appointment setting are here in this short list of things to look for:

    1. EXPERIENCE - Does the firm have experience in setting insurance agent appointments? Are they experienced in your line of insurance, such as Property and Casualty (P&C)? Can they provide references?

    2. GUARANTEE - Is the appointment guaranteed? What is their definition of guaranteed? Will they replace the appointment if the prospect cancels? How will they replace it?

    3. LEAD MANAGEMENT SOFTWARE - Do they have an automated system designed to track progress and deliver your appointment setting program? Ideally, this system should be web-based, requiring no software installations and should provide you with full access into the calls being made on your behalf (notes from the calls, follow-up dates scheduled, etc).

    4. PROSPECT FILTER - As part of their lead management software system, do they have an automated way to set and change your prospect filtering criteria? In other words, can you create a profile of your ideal prospect pool that the service firm will work from when setting your appointments?

    5. DEDICATED RESOURCES AND INFRASTRUCTURE - There are some very heavy infrastructure requirements to provide this service to agents. As you know, from the example scenario above, making thousands of calls a day takes dedicated people, advanced technology and equipment and lots of overhead.


    Do you still think setting up your own outbound call center is the best use of your time? In this report we covered why getting in front of prospects is the most important item on every agent's to-do list, and how it can be done via outsourcing to experienced firms that will take an interest in your agency and in helping grow your book of business. If you are interested in learning more about guaranteed appointment setting for insurance agents, contact Bill Kossack at ClearData at (724) 387-1713.

    Marvin Zalevsky, ClearData International, Inc. ClearData is one of the nation's leading providers of automated prospect management solutions.

    Do You Need to Comply with the FMLA?
    By Joseph Starr, J.D.

    Does your agency need to comply with the Family and Medical Leave Act of 1993 (FMLA)? The FMLA secures unpaid leave for new parents, seriously ill employees and employees with seriously ill family members. Whether an employer must comply with the provisions of the FMLA can be a difficult question to answer and requires inquiry into the following issues:

    1. Does your Organization Employ More than 50 Employees? An employer is covered under the FMLA if it has employed 50 or more (full and part-time) employees for each working day during 20 or more calendar workweeks in either the current or preceding calendar year. Congress is considering expanding the FMLA to apply to employers with 25 or more employees and changing the leave from unpaid to paid.

    2. Are the 50 employees located within a 75-mile radius? According to the Code of Federal Regulations, the determination of whether a work site where the employee seeking the leave is employed has 50 employees within a 75 mile radius should be measured by surface miles via the shortest possible route unless there is no available surface transportation.

    3. How long has the Employee Worked for the Company? An employee is eligible for a FMLA leave if he or she has been employed by the employer for at least 12 months and has worked 1,250 hours during the 12-month period preceding the start of the leave.

    4. Has the Employee Provided Advance Notice of the Need to take an Unpaid Leave? Employees must provide 30-days' advance notice of their need to take an unpaid leave under the FMLA when the leave is foreseeable, e.g., childbirth. An employee who becomes aware of a need for a leave (foreseeable or in an emergency) less than 30 days in advance must provide notice as soon as practicable under the circumstances.
    While this "tip" provides a basic outline of the questions an employer must ask to determine FMLA coverage, it does not cover all of the various scenarios in which to determine eligibility. I strongly recommend that employers seek advice from an employment lawyer or human resources professional prior to making a determination about whether the FMLA applies to your organization.

    Joseph A. Starr is a principal with Lipson, Neilson, Cole, Seltzer & Garin, P.C in Bloomfield Hills, Michigan. His practice includes the defense of employers and insurance agents and brokers.

    "Can I terminate this employee?"
    By Marcia J. Sartori

    Usually when a supervisor asks this question there has been something that has caused a concern long before the final breaking point. Your business may have been suffering for some time while this supervisor was enduring an uncomfortable situation. When there are issues in the workplace that are of concern to your supervisors, it takes away from productive income producing time. This lost productive time can be avoided if supervisors can have open talks about employees whom they supervise on a regular bias.

    We take time to keep up with regulations, update our records, properly file paperwork, respond to customer's questions, etc. Personally, we take the time to have preventative maintenance performed on our vehicles. Maybe we need to consider a preventative maintenance program for our employees.

    Have you ever sat down with an employee and asked, "How's it going?" Do your employees have the tools necessary to do their jobs? Do your employees have the training necessary to do their jobs? Are directions clearly given to each employee on how to do their job? Does every employee understand what is really expected of them each day?

    If you had been aware of the supervisor's initial concerns and guided the supervisor through talking out the issues as the employee's unacceptable behavior progressed, the termination action would not be a question in the mind of the supervisor or the employee. These small steps can positively improve your supervisor's management skills, provide you with the solid documentation supporting a decision to terminate an employee, or maybe even eliminate the need to terminate an employee by turning them into a productive member of the team.

    Although this may seem over simplified, it often is the simple act of one-on-one communications on an on-going basis that can made the most difference in your business.

    Marcia J. Sartori is Vice President of HR for The Resourcing Solutions Group, Inc. (TRSG). TRSG is a national provider of human resources consulting and payroll processing services. TRSG is the industry leader in providing integrated and economical approaches to workforce management challenges.

    By Michael Mercer, Ph.D.

    Let me tell you a story of a man who made himself very rich through his vivid imagination and hard work. The man was an investment banker who always was looking for new sources of revenue.

    One day he conjured up a brilliant idea to make boatloads of fees: He realized if the huge number of people who could not really afford a mortgage loan were given the chance to get one, then monstrous numbers of people would buy "sub-prime" mortgage loans. Then, this man's investment bank could buy those high-risk loans, and resell them to investors - pocketing huge fees from the investors.

    So, the man hired lobbyists who wined and dined and "donated" to campaigns of U.S. congressmen and senators. Those grateful politicians then passed laws forcing banks to make mortgage loans to people who could not possibly pay them back. What a triumph for this investment banker.

    The man made a fortune buying, repackaging, and reselling zillions of essentially worthless "sub-prime" mortgage loans to unsuspecting investors who ignored a basic fact: If an investment sounds too good to be true, then it probably is.

    One day, the man was driving 80 miles per hour in his expensive car, and talking on his cell phone. While not paying attention, he smashed into another car. An ambulance arrived at the accident scene. As rescue workers carefully removed him from his car, the man repeatedly muttered the same phrase over and over again: "This is horrible: My beautiful, big car is smashed to pieces."

    The rescue workers couldn't understand why all the man cared about was that his car was totally destroyed. Finally, one of the rescue workers gently said to the man: "Sir, I know you're upset that your car is totally destroyed. But, I need to tell you something even more important: In the accident, your left arm was ripped off your body, and we can't find your left arm."

    Suddenly, the man cried out in excruciating agony: "Oh, no. That's horrible. My Rolex is missing, my Rolex is missing."

    Copyright 2009 Michael Mercer, Ph.D. This joke is reprinted with permission from "Dr. Michael Mercer's Management Newsletter." Dr. Mercer is AoA's "Hiring Expert." He is a nationally known expert on (a) pre-employment tests and (b) hiring the best. You can subscribe - at no cost - to his management newsletter at www.MercerSystems.com.

    This risk management newsletter is produced in conjunction with Agents of America, www.agentsofamerica.com. The contents of this newsletter may not be reproduced without the express written permission of AoA.
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