E&O Weekly Prevention
Strategies for the Professional Agent
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August 16, 2012


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Letter from the Editor
This week edition of AOA E&O Prevention:  


Table of Contents     


Is an insured required to read the policy?                                            

By Matthew S. Marrone, Esq.,


By Jonathan M. Feinstein, Esq


By Thomas Paschos, Esq.


California Supreme Court Reaffirms Qualified Work Product Protection of Witness Statements

By John R. Clifford, Esq., Edward P. Garson, Esq. & Ian A. Stewart, Esq.



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Also available is our most recent edition of "AOA Tips, Views, News & More," including our new feature "Insurance Resources."  Remember to tell your friends and business associates that membership in AgentsofAmerica.ORG is FREE! Also if you have any thoughts, comments or suggestions, please email me at info@agentsofamerica.org.  


"Bringing the Best Together"

Brit Weimer 



AOA News, Views, Tips and More


Beware of Hiring Applicants with Hyper-Emotional Personalities

By Michael Mercer, Ph.D.


Six pre-employment personality test scales warn you if a job applicant has Hyper-Emotional Personality. 

You probably want to avoid hiring such people.  They disrupt your workplace, decrease productivity, and create expensive problems.



Managers who hire applicants who have Hyper-Emotional Personality should get their heads examined!  A Hyper-Emotional employee is like a stick of dynamite.  Do not light a match near that person. 


In the workplace, such characters ooze negative emotions and behaviors.  They adore doing destructive actions, such as:

1.  Acting frightfully aggressive - pushy, obnoxious, and inconsiderate

2.  Hate following your company's rules and procedures -- and rebel when told to do so

3.  Complain a lot - creating an avalanche of negative feelings

4.  Ooze pessimism - feeling downhearted - and try to drag co-workers down

5.  Act excitable - hyped-up like live electric wire sitting in water

6.  Thrill in focusing on the above five negative emotions


Co-workers feel annoyed and distracted by the Hyper-Emotional employee who never should have been hired.  Also, horribly, co-workers question managers' judgment for hiring disruptive creatures.


Financially, your company suffers reduced productivity, bigger costs for less productivity, plus harm to customers.  Why?  Because the Hyper-Emotional employee wastes time on emotional purging, rather than keeping their nose to the grindstone working.




A pre-employment personality test undoubtedly is the most accurate and quickest way to see if an applicant has Hyper-Emotional Personality.  Reason:  Such pre-hire tests are based on years of research to make sure they give you valid and reliable test scores. 


Also, you can make customized benchmark pre-employment test scores for each jobs in your company.  Then, you may focus on hiring applicants who get test scores like your best employees.  Your best or superstar employees' benchmark scores are unlikely show Hyper-Emotional Personality traits.




Pre-employment personality test scores of an applicant with Hyper-Emotional Personality may include some or all of the following: 


1.  High score on Aggressiveness - i.e., pushy and obnoxious

2.  Low score on Following Rules, Policies & Procedures - i.e., 'anarchist' rebelling against structure

3.  Low score on Reactions to Pressure - i.e., loves to blame and complain

4.  Low score on Pessimism - i.e., down-in-the-dumps and unconfident

5.  High score on Excitable - i.e., cannot sit still, prowling for excitement

6.  Low score on Feeling/Emotion-Focused - i.e., loves dwelling non-stop on negative emotions 1-5




Unfortunately, job interviews typically do not uncover if an applicant has Hyper-Emotional Personality.  Why?  First, research shows most interviewers are lousy at guessing applicant's on-the-job behaviors.  Second, applicants typically act nice and enthusiastic in interviews.  They 'put on a show' to impress easily misled interviewers. 


But, here is a four-part interview question you can ask:  "Tell me two specific big problems you had with your . . . boss . . . co-workers . . . work assignments . . . organization you worked for."


Then, carefully listen.  First, did the applicant tell you two, as requested?  Second, did applicant tell you specific or general problems?  Third, did applicant solely complain (like a Hyper-Emotional person) or did applicant describe specific problems followed by solutions, without you asking for solutions? 




Six pre-employment personality test scales may warn you if an applicant exhibits Hyper-Emotional Personality.  On the pre-hire test, look for bad scores on Aggressiveness, Rebellion against Rules, Reaction to Pressure, Pessimism, Excitability, and Feeling/Emotion-Focus. 


Of course, use multiple prediction methods to evaluate job applicants.  Just remember pre-employment tests give you the most scientifically-based, accurate, customizable assessments of applicants.  Also, such pre-employment tests quickly can warn you, before you waste your valuable time in job interviews with applicants you probably want to avoid hiring.


COPYRIGHT 2012 MICHAEL MERCER, PH.D. www.MercerSystems.com

Michael Mercer, Ph.D., authored the book "Hire the Best & Avoid the Rest(tm)."  Dr. Mercer created all 3 "Forecaster(tm) Tests."  These 3 pre-employment tests are used by many companies use to assess job applicants' personalities, mental abilities, and dependability.  Dr. Mercer also delivers speeches and seminars at companies and conferences.  You can subscribe to his newsletter, and learn about the 3 pre-employment tests at 




Strategic Insurance Tip 

By Andrew Barile of Andrew Barile Consulting Corporation, Inc.

Important Considerations That Litigation Lawyers Value Most When Retaining an Insurance and Reinsurance Litigation Expert!


By Andrew Barile, MBA, CPCU

Insurance and reinsurance litigation continues to increase, policyholder 

lawsuits, reinsurance disputes, continue to cause lawyers to select insurance and reinsurance experts. The number of firms acting a "search experts" for law firms has also increased dramatically in the last ten years.

As an industry expert, here are the ten important considerations that are of most value when litigation lawyers are selecting an insurance and reinsurance expert (in order of importance):

1. Expertise/Ability

2. Knowledge of Insurance and Reinsurance 

3. Responsiveness

4. Value of the Case (Monetary Value)

5. Honesty/Transparency

6. Industry Reputation/Professionalism

7. Reliability

8. Promptness

9. Efficiency

10. Relationships 

The litigation expert that possesses the above important considerations is always being contacted by litigation lawyers to act as consultant, draft expert reports, deposed, and trial testimony.


Contact Andrew J. Barile, CPCU, MBA , Andrew Barile Consulting Corporation, Inc. -Telephone:  619 507-0354- Email:  abarile@abarileconsult.com


Your Confidence Creates Their Perception. How  Confident Are You?                                                                                                 By Mark Hunter, "The Sales Hunter"                                                                                  

The perception customers have of you is a direct result of the level of confidence you have.


The perception customers have of you is a direct result of the level of perception you have.


The perception the customer develops about you becomes the foundation for the decision they're going to make. It's only logical the higher the perception the customer has, the more willing they are going to be to buy from you.


Carry this one step further.


When the customer has a very positive perception about you and what you sell, they are going to be much more willing to pay full price and far less likely to be looking for a discount.


What this means is your confidence has a direct impact on the prices you get and the profit you make.


I need to address this next part to the sales managers who are reading this. How often do you let your salespeople know you believe in them? Is your role merely to tell them everything they're doing wrong?


If that is what you're doing, then there is no way you will ever have an organization that is anything close to excellent.


We all need to be exposed to positive reinforcement and it starts with you. You need to minimally be expressing your confidence in them two times per week. Anything less than that and you'll be allowing your people to develop a negative perception.


For the salespeople reading this, building your confidence starts with you believing in yourself. One way to do this is by keeping a journal or a notepad where you list all of the positive things, comments and so forth that customers share with you.


Any time a customer shares something positive or you see something positive happen from what you've sold, make a note of it in your journal or pad. Use the pad as a reference tool you refer to each time you're about to start a sales call.


The sales you make and the profit you earn starts with the confidence you show.


Mark Hunter, "The Sales Hunter," is a sales expert who speaks to thousands each year on how to increase their sales profitability. For more information, visit www.TheSalesHunter.com. You can also follow him on Twitter, on LinkedIn, and on his Facebook Fan Page, or call 402.45.2110. -Mark@TheSalesHunter.com.


Copyright 2012, Mark Hunter "The Sales Hunter." Sales Motivation Blog.


By Michael Mercer, Ph.D.,

"Where do you think you're going?"- from Carly Rae Jepsen's song "Call Me Maybe"

"Not doing more than average is what keeps the average person down."
- William M. Winans

"Don't get tired of doing what is good. At just the right time you will reap a big harvest, if you don't give up."
- Galatians 6:9

"The more we know, the more we know how much we don't know."
- Deepak Chopra


"Ever notice that irons have a setting for permanent press? I don't get it."
- Steven Wright

Michael Mercer, Ph.D., provided AoA with Motivational Quotes and Joke-of-the-Month. Dr. Mercer created 3 FORECASTER™ TESTS - pre-employment tests - that companies use to assess job applicants. He authored the book "HIRE THE BEST & AVOID THE REST." You can read about the 3 tests, or subscribe to his "HIRE THE BEST Newsletter" at www.Pre-EmploymentTests.com. Please contact him if you have any questions PH: 847-382-0690.

A1Is an Insured Required to Read the Policy?

By Matthew S. Marrone, Esq., of Goldberg Segalla LLP


As I've previously written in this column, insurance brokers are most frequently sued when an insured experiences an uncovered claim.  In those instances, an insured will typically allege the broker failed to recommend additional coverages to the insured, failed to advise the insured of a particular exclusion in the policy, or failed to explain what insurance was in effect.  I and the other authors of this column have previously explained the various duties an agent, broker, or producer may have to the insured under various circumstances.  But we haven't addressed what duties the insured might have.  In the face of an E&O claim, it is logical for the broker to respond by contending the insured should have reviewed the policy the broker did place.  After all, the policy is the instrument which specifically defines what coverage the insured does and does not have.  But can this defense be asserted with success?    












A2Intentional Misrepresentations Not Required for Rescission of Legal Malpractice Liability Policy 

By Jonathan M. Feinstein, Esq. of Tressler LLP


The Sixth Circuit affirmed the district court's grant of summary judgment in favor of the insurance carrier for rescission of a legal malpractice liability policy based on a lawyer's material misrepresentations on the application, involving a failure to disclose a pending malpractice investigation. Cont'l Cas. Co. v. Law Offices of Melbourne Mills, Jr., PLLC, 2012 U.S. App. LEXIS 7445 (6th Cir. KY. April 13, 2012) (applying Kentucky law).    






Firebrand Social Media   





A3Residents of An Insured's "Household" Could Include Relatives Who Live On the Insured Premises, Regardless Of Whether the Policyholder Is Also Present 

By Thomas Paschos, Esq. of Thomas Paschos & Associates, P.C.    


In Miller v. Poole, ___ A.3d ___, 2012 WL 1980647 (Pa. Super. June 4, 2012), Helen Poole was a home owner and named insured on a homeowner's insurance policy issued by Wall Rose. Helen's son, Abe Poole, and 18-year-old grandson, Daniel Poole, spent the night of April 1, 2005 at Helen's house. Helen Poole died the following day on April 2, 2005. Because Helen's will granted Abe a life estate in her house, Abe and Daniel moved their belongings from the new apartment to Helen's house and continued to stay there until September 2005.   



A4California Supreme Court Reaffirms Qualified Work Product Protection of Witness Statements  
By John R. Clifford, Esq., Edward P. Garson, Esq. & - Ian A. Stewart, Esq. of Wilson Elser Moskowitz Edelman & Dicker LLP


The early investigation of a claim can be critical to an early evaluation of potential liability. Evidence can be preserved, and those involved can provide key information regarding the circumstances of the loss. However, what parts of that investigation are privileged and under what circumstances must the results of an investigation be divulged in discovery? The answers were made clearer by the Supreme Court of California recently. In Coito v. Superior Court of Stanislaus County (June 25, 2012) 2012 DJ DAR 8713, the Court reversed the lower court's decision, holding that any witness statement obtained through an attorney-directed interview is entitled to at least qualified work product protection. The case was remanded to the trial court to determine whether the witness statements were so "inextricably intertwined" with comments and notes by the attorney as to constitute the attorney's impressions of the witness and therefore absolutely privileged.


This newsletter is produced in conjunction with Agents of America, www.agentsofamerica.org. The contents of which may not be reproduced without the express written permission of Agents of America. Copyright 2012