E&O Prevention
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June 30, 2011


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AOA All Chapters

Letter from the Editor

Check out our updated Table of Contents, plus "MEET THE AUTHORS" to our new eBook, entitled "E&O Loss Control & Risk Management Program for Insurance Agents and Brokers." The Book, once completed, will have 26 distinct chapters plus an Appendix on Best Practices that will represent a collaborative effort of 25 of the top E&O insurance attorneys and experts from across the country.


We are also happy to announce this month a new strategic partnership and alliance with the Professional Liability Defense Federation. This alliance is in addition to our existing partner with the Professional Liability Committee of DRI. Also please note that AgentsofAmerica.ORG has put together a panel of experts and will be making a presentation at DRI's first Professional Liability Seminar in more than ten years in New York City, December 15 and 16, 2011.


This month's poll question:


Which one of these policy enhancements would you be most likely to choose if available?


1. An Unlimited Extended reporting endorsement         (tail)

2. A reduction in the firm's deductible if you choose       to arbitrate a claim.

3. The ability to purchase full prior acts coverage.

4. The ability to waive a deductible for the first claim.


Again, we want to thank everyone for their support.  Remember to tell your friends and business associates that AgentsofAmerica.ORG is now offering FREE MEMBERSHIP


"Bringing The Best Together" 

Brit Weimer, Esq.


Table of Contents
By Sarah E. Morris, Esq. and Amy E. Lanser, Esq.


By Charles T. Wilson, CMC, CRM, RPLU
By Mark Hunter "The Sales Hunter" 


E&O Loss Prevention Tip Description of Claim:

By Brown & Brown of California, Inc.


Nurses: Their Expanding Role As Expert Witnesses

By Joan O. Ford, Esq.


Pension Committee Makes Preservation a Priority and Initiates Debate on Potential Rules Changes

By Brad Harris and Ron Hedges  


Arbitration Fairness Act Would Eliminate Forced Arbitration in Employment, Consumer and Civil Rights Cases

By Stephen Marcellino, Esq.


Truthfulness is a Defense to a Claim for Tortious Interference with Contractual RelationshipBy Thomas Paschos, Esq.


Medicare Shared Savings Program

By Jayme R. Matchinski, Esq.


Ban on Mandatory Predispute Arbitration Again Proposed in Congress

By Mark A. de Bernardo, Esq., Garen E Dodge, Esq., & J Aloysius Hogan, Esq.

profProfessional Liability Insurance Coverage - A Primer 

By Sarah E. Morris, Esq. and Amy E. Lanser, Esq.


Professional liability insurance policies are often termed "errors and omissions" policies.  They are designed to protect members of a professional group from liability for negligence, omissions, mistakes and errors inherent in working in the profession.  St. Paul Fire & Marine Ins. Co. v. Nat'l Real Estate Clearinghouse, Inc., 957 F. Supp. 187, 189 (D. Minn. 1997) (citation omitted).


The coverage granted by professional liability insurance policies dovetails with exclusions in other policies for the rendering or failure to render professional services.  See, e.g., Kirkham, Michael & Assoc. Inc. v. Travelers Indem. Co., 493 F.2d 475 (8th Cir. 1974) (addressing exclusion in architectural firm's CGL policy for "professional liability arising from defects in plans, designs or specifications"); Piper Jaffray Cos. v. Nat'l Union Fire Ins. Co., 38 F. Supp. 2d 771 (D. Minn. 1999)


Read More... 

connectConnecting the Dots
By Charles T. Wilson, CMC, CRM, RPLU


Last weekend I helped my 4-year-old granddaughter connect the dots in her new workbook.  This was supposed to magically reveal the picture of an animal or toy.  Her lines were often straight when the dots were close, then wiggled a bit when farther away.  Once or twice we had to count again and make a u-turn to get back on track.  Some of the finished pictures weren't all that obvious.





six6 Do's and Don'ts of Using an iPad on a Sales Call

By Mark Hunter "The Sales Hunter"


So you now own an iPad or other type of tablet and you're wondering if you should use it on a sales call. 


Here are 6 quick rules to consider:


1. Don't use it just because you have one.

Who really cares?  Just because you own the newest electronic gadget doesn't mean the customer you're seeing doesn't own one too - or worse yet, despises people who do own them.  It only makes sense to use one on a sales call if you have a purpose for using it.


Read more... 




eoE&O Loss Prevention Tip

Description of Claim:

Brown & Brown of California, Inc.


Agents who represent themselves as "insurance consultants" must take extra precaution, as they may have a higher level of responsibility to analyze the client's needs and offer appropriate coverages. Even if you don't consider yourself a "consultant," you may be placing yourself in this category if you act in an advisory role with your clients by making recommendations, holding regular meetings to review information, or keeping in frequent contact to discuss insurance needs.


nursesNurses: Their Expanding Role As Expert Witnesses  By Joan O. Ford, Esq.



Key Points:

  Nurses are competent to offer expert causation   testimony in a medical malpractice case.

  The Supreme Court overruled Flanagan v. Labe.

  Freed opens the door for nursing experts to testify in medical negligence actions as to medical diagnoses, which their professional license and scope of practice clearly prohibits.


 Read More... 



penPension Committee Makes Preservation a Priority and Initiates Debate on Potential Rules Changes

By Brad Harris and Ron Hedges


Anyone in our society who conducts business should preserve records as required by law and good business practices. It might also be necessary to preserve records once a "litigation hold" has been imposed.  But what happens when a hold is not implemented or "misses" relevant records? A failure to preserve may lead to allegations of "spoliation" of relevant records. The following article addresses one of the leading judicial decisions in the United States courts on preservation and spoliation and reminds everyone that the governing law varies and, whatever law governs, the consequences of spoliation can be very serious.



Read More... 



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arbArbitration Fairness Act Would Eliminate Forced Arbitration in Employment, Consumer and Civil Rights Cases

By Stephen Marcellino, Esq.


In May 2011, U.S. Sens. Al Franken (D-Minn.) and Richard Blumenthal (D-Conn.) and U.S. Rep. Hank Johnson (D-Ga) introduced the Arbitration Fairness Act (the "Act"), which seeks to eliminate forced arbitration clauses in employment, consumer and civil rights cases, but would allow consumers and workers to elect arbitration after a dispute occurs.


Read More... 



truthfulnessTruthfulness is a Defense to a Claim for Tortious Interference with Contractual Relationship

By Thomas Paschos, Esq.


In Walnut Street Associates, Inc. v. Brokerage Concepts, Inc., --- A.3d ---, 2011 WL 1817129 (Pa. May 13, 2011), plaintiff, Walnut Street Associates (WSA), provided insurance brokerage services to employers for health insurance benefits for employees. WSA was the broker for health insurance provided to employees of Procacci Brothers Sales Corporation (Procacci). Procacci also hired Brokerage Concepts, Inc. (BCI) to act as a third party administrator of the self-funded employee benefit program. BCI in turn paid commissions to WSA based on premiums paid by Procacci.


Read More... 



medMedicare Shared Savings Program

By Jayme R. Matchinski, Esq.


Health Law Alert


Section 3022 of the Patient Protection and Affordable Care Act (PPACA) amended Title XVIII of the Social Security Act, 42 U.S.C. 1395 et. seq., by adding a new Section 1899 to the Social Security Act to establish a Shared Savings Program. The Shared Savings Program is designed to improve Medicare-beneficiary outcomes and increase the value of care by:


Read More....


banBan on Mandatory Predispute Arbitration Again Proposed in Congress

By Mark A. de Bernardo, Esq., Garen E Dodge, Esq., & J Aloysius Hogan, Esq.


The so-called Arbitration Fairness Act (S. 987, H.R. 1873) has been re-introduced in Congress.  It would amend the Federal Arbitration Act by banning mandatory, predispute arbitration agreements in employment, consumer, and civil rights matters.  Under the bills, workers and consumers may consent to arbitration only after a dispute arises.   



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